When speaking to the uninformed and the subject of Law of War arises, one usually hears words to the effect: "Law of War---How oxymoronic!" What follows is usually some statement that suggests war is without law, rules, or restraint. Often these comments come from those well versed in criminal procedure and civil liberties. The lessons learned involving use of force by the police seem to be considered inapplicable. What is inferred in such remarks is an absence of thinking about the continuum of law and armed force. Thoughtful consideration of that continuum places the law of armed conflict in perspective.
Second: since discipline is the essential ingredient in any professional armed force and since our Rule of Law is grounded in a civil liberty-oriented-society requiring justice, the Uniform Code of Military Justice has balanced, at least since 1950, the requirements of good order and discipline with the American concept of justice. The constitutionally mandated congressional function of establishing the rules utilized by the armed forces includes the enactment of the Military Justice Act of 1983. This Act allows service personnel to file habeas corpus petitions in the United States Supreme Court in court-martial cases creating a leap from an Article I court (court martial) to an Article III court (the Supreme Court). Therefore, everyone joining the armed forces and submitting to military discipline can be assured that the Supreme Court is the ultimate arbiter of legal disputes in the administration of good order and discipline.
Third: the last major contribution is Legal Assistance-delivering legal services to those less privileged. Some eight million servicepeople in World War II rapidly mobilized from civilian life and thereby needed help in resolving the resulting legal problems of hasty departure and changed circumstances. Using its military attorneys, the
System, however, also has its place. Our national security system was
largely built after World War II. At the beginning of that conflict the
Military reform came ten years later with the Goldwater-Nichols Act of 1986. Prior to this Act, an intolerable strain on military governance existed. The "hoteling" function constantly competed with the "war-fighting" function. Unfortunately the daily demands of "hoteling" tasks-- by necessity-- took precedence over the more deliberative, time consuming, less immediately pressing war-fighting functions. "Hoteling" functions include procuring, recruiting, training, equipping, disciplining, and governing. "War-fighting" functions include deliberative war planning and ad hoc crisis action management. The Goldwater-Nichols Act separated these functions by establishing two different chains of command-the Service Secretaries performed the "hoteling" functions while the Unified Commands and the Joint Staff were primarily responsible for "war-fighting." Thus, the positive aspects of both functions were accentuated and strengthened. In addition, the separation shortened, invigorated and made more responsive both chains of command. Especially important, the separation helped the
Three uniquely legal Congressional Acts have been passed since World War II and undergird in important ways the national security acts of greater scope. The 1950 Uniform Code of Military Justice civilianized, reformed, and made uniform the basic criminal code for the armed forces. In attempting to meet criticism of military justice engendered during the mass mobilization of World War II, the revised code clearly "tilted" toward a civilian model ignoring important elements of its unique martial character, particularly in the Law of War. It updated practice that had not been addressed since the reforms following World War I and it made uniform the military law applied to the old Army and Navy and the new Air Force. A major "lawyerization" occurred in 1968. Recently"revolutionary" changes-usually after each major conflict-have given way to yearly "corrections" which insures a healthy, steady, predictable modernization.
Congress in the Military Justice Act of 1983 added an essential final reform. To ensure uniformity between Article I courts-martial and Article III federal courts and to achieve Supreme Court Article III oversight, Congress allowed service personnel to petition the Supreme Court via writ of habeas corpus in court martial cases. The unique military justice system is thus now directly subject to constitutional supervision by the Supreme Court. Lastly, in the War Crimes Act of 1996, previously imperfectly implemented Nuremberg principles for war crimes were at least partially corrected when those not subject to trial by courts-martial could be tried in federal district court for war crimes. The prior jurisdictional defect prevented ninety percent of those subject to prosecution in the
Events, even institutional staining tragedies, can be the impetus for great change. Such was certainly the case for the
Most importantly, the Profession of Arms reclaimed the rules of its own profession. "Law of War" came out of the library and off lawyer's desks and once again became the province of the practical Profession of Arms. Law of War programs were introduced and integrated into training. An institution found ways to talk about such subjects as disobeying illegal orders. A recognized military law specialty, Operational Law, was born. This increased attention to rules of war coupled with technology produced service-wide Rules of Engagement-the means by which force is controlled.
Practical service personnel are not lawyers. Our heritage of the Rule of Law and the guidance of the laws of war must be practical and a part of everyday conduct and training. This practical integration of law and armed force is well expressed by emphasis on five basics. Professional training is key. Individual best must be combined to produce unit best. This, of course, is military training. Military personnel must know, understand, and enforce compliance with the Rules of Engagement-when to shoot: at what and whom: and under what circumstances. Because clear thinking is difficult when shots are being fired, there must be insistence on compliance with standard operating procedures. Yes, drill is important. Subordinates must be controlled through the issuance of clear and concise orders. Commissioned officers and non-commissioned officers must intervene at the first sign of ill discipline. Most importantly, there must be an insistence upon the truthful moral high road. In short, the "decision to pull the trigger" is ultimately an individual professional decision involving legality, morality, and common sense. Our civilian education, our military education, and our religious education attempt to prepare us for such moments. When the Law of War is thus integrated and made practical, professional conduct on the battlefield results. When service personnel follow these principles, they are fighting lawfully.
The political aftermath of the My Lai incident and the increasing use of the Law of War as a weapon against the
In a democracy, however, nothing could be healthier. Our citizens need to know the costs-in lives and in treasure-of any military action. In our society, nothing is more ethically sensitive than the use of deadly force. The same is true with our domestic police. When our military personnel "kill people and break[s] things in the name of the state," we demand that use of force be done in accordance with the Rule of Law. Sound military policy can only be formulated with a dialogue between the military, the government, and the citizenry. The "justification" we see nightly on the evening news often has legal and moral overtones, and, thus, the concepts of Just War and Law of War form the basis for this dialogue. In reality, modern warfare has added a new requirement. Not only must the military train, plan, and execute a military operation; the military must now justify its operations as well.
LAWYERS WITHIN THE DEPARTMENT OF DEFENSE
Markedly different from their counterparts are the "Legal Advisors" to the Combatant Commanders (CINCS) who perform legal services within the Joint Chain of Command. The Goldwater-Nichols Act of 1986 markedly increased the authority and the responsibility of these "Legal Advisors."
Additionally, Joint Legal Offices are small, specialized, and credentialed. Usually ten or less lawyers hold these positions who have practical experience in Operational Law and the Law of War and who have graduate legal degrees in International Law. These Joint Legal Officers concentrate on the legal aspects of war fighting. Their issues include: operational law, international agreement management, status and stationing agreements, host nation support, and internal command issues. Joint Legal Offices do not do base legal work-criminal justice, legal assistance, claims, etc.
Law office management is also unique. As international agreement manager, they are often responsible for keeping track of hundreds of international agreements. As such, the law library is a rare combination of domestic law and international law. International agreements are used just like cases are used in normal domestic practice. Operational law practice changes so rapidly that the librarian often must carefully collect legal conference materials and keep track of contact information for persons responsible for sensitive areas. Communication within such an office is complex. Classified information necessitates special precautions. Classified means for voice communication and document communication must exist within the unified command, with all of the various military services, and with key offices in certain embassies as well as with the Departments of Defense, State, and Justice in
The role of the Legal Advisor is quite varied. The Legal advisor must be an international agreement manager, which is particularly important because Great Powers are consistent and Great Powers keep their word. A Legal Advisor must supervise the handling and reporting of all such agreements and must review such agreements for compliance with both domestic law and international law. In operational matters, a Legal Advisor must protect the honor of the
TEACHING: LESSONS THAT NEED TO BE TAUGHT
One trains for certainty but educates for uncertainty. It is the uncertainty that many of us have spent our lives addressing. Three case studies and a teaching addendum are essential for senior officers, yet the lessons learned from each are important at many different career stages.
The lesson of
The necessity of continually modifying the Rules of Engagement to
correspond with current political reality is the lesson learned from the Bombing
of the Marine Headquarters in
The Iran-Contra incident provides a third important case study. Both the Tower Commission Report and the Joint Congressional Commission Report underscore the dynamics that can develop between the Executive Branch and the Legislative Branch of the United States Government when important national security issues are at stake. Of particular significance is the theory articulated in the Tower Commission Report concerning the proper method for formulating national security policy at the National Security Council level. This incident also provides a practical vehicle for a discussion of the appropriate role for military officers in such situations.
One teaching addendum is necessary for a matter that transcends specific lessons learned from case studies. Indeed it permeates-- in important ways--the entire practice of martial military law. The Profession of Arms has two "carriers"-Law of War and Just War Tradition. Some argue that modern Law of War replaces and trumps the Just War Doctrine, which should be avoided because it adds religious gasoline to sensitive secular discussions. Nothing could be further from the truth. It is true that the Jus in Bello (Just Conduct of War) has been supplanted by Law of War and Rules of Engagement but its basic concepts of discrimination, noncombatant immunity, and proportionality are the intellectual building blocks of professionalism and morality in the conduct of warfare. The criteria of Jus Ad Bellum (Just Recourse to War) are quite helpful in the public debate about "going to war." As such, one is forced to use the language of Just War in discussing military use of force. Likewise, senior military leaders must understand these principles when they speak about and-importantly-when they formulate military policy.
Similarly, Just War Theory is alive and well in the
Lawyering for Uncle Sam when he is preparing for or is actually drawing his sword is really not so unique. Lawyers performing such functions provide legal advice. They assist an institutional client with non-legal or semi-legal process. They act as a reminder of the Rule of Law, as one who helps keep the conscious of the command, as a witness to important events, and as an unbiased "back up" to assist decision makers. Honor and not money is the "coin of the realm." Unusually ethical practice and continuous education are professionally rewarding. Being part of a team doing something important is important. In sum, such practice provides an opportunity to "perform or influence the performance of great actions; [to] bring new growth and new challenge; and [to] have the capacity to leave a legacy of honor, hard work and respect for the law." 
* William G. Eckhardt, Clinical Professor
of Law and Director of Urban Affairs Outreach, University of Missouri-Kansas
City School of Law. B.A. 1963, University of Mississippi; LL.B. 1966, University
of Virginia School of Law; LL.M. Equivalent, The Judge Advocate General's
School; Diploma 1978, United States Army Command and General Staff College;
Diploma 1982, United States Army War College. Provided legal advice, litigated
in federal and military courts and taught military law for thirty years. Served
as a Prosecutor and as a Defense Counsel in
assignments providing input for this essay include Chief Prosecutor, My Lai
Cases; Legal Advisor, European Command; teaching military law to non-lawyers at
Rarely is one given the opportunity to reflect on the legal basics experienced in a thirty-year military career. Articulating the lessons learned from practice, study, and reflection is a privilege. As is true with any teacher, some of my most important insights were learned from my combat arms students.
 Most legal
articles are centered on in-depth analysis of a precise issue. My assignment for
this essay is quite different. I have been asked to reflect on thirty years of
practice and teaching with the purpose of educating, highlighting, and sharing
broad ideas, observations, and themes. Documenting such an assignment is
difficult. Since this is really an "executive summary" of thirty years of
speaking and writing, the best documentation comes from past-more
expansive-discussions. Three principal sources are available. The first article
was written while I was a student at the
In addition to writing, I have spoken five or six hundred times on
professional conduct on the battlefield. Half of those have been devoted to
Such a record of public dialogue for uniformed lawyers and teachers is not unusual. It parallels, yet differs from, a "pure" academic path. Writing usually comes when time is available (at educational "stops") or when an issue rises to unusual importance-often the subject of a conference.
 William C. Westmoreland & George S. Prugh, Judges in Command Judicialized Uniform Code of Military Justice in Combat, 3 Harv. J. L. & Pub. Policy 1, 1-2 (1980); William G. Eckhardt, Command Criminal Responsibility: A Plea for a Workable Standard, 97 Mil. L. Rev. 1, 29-30 (1982).
 Law and armed force compose a continuum. At least the possibility of both being present is a fact. Incorrect thinking is often in exclusive opposites: war or peace; law or armed force. Only when one realizes the reality of both being present can the "creative tension" between these two competitors for power focus attention on workable solutions.
 The selection of these three contributions is my own. During the Bicentennial of our country, while stationed at the Presidio of San Francisco, my office facilitated the placement of a brass plaque commemorating the founding of The Judge Advocate General's Corps. These three contributions originated during that period.
 Pub. L. No. 81-506, 1, 64 Stat. 108 (repealed 1956).
 William C. Westmoreland, Military Justice-A Commander-s Viewpoint, 10 Am. Crim. L. Rev. 5 (1971). In this article, General Westmoreland, while Chief of Staff of the Army, articulated the basic framework for any military code of justice. His main points include:
1. The system must deter conduct, which is prejudicial to good order and discipline.
2. Military law must both motivate soldiers and prevent offenses.
3. Military law must aid in preserving the authority of military commanders.
4. The military justice system must protect discipline, loyalty and morale.
5. Protection must be provided against conduct which threatens the integrity of the military
organization and which threatens the accomplishment of the mission.
6. The military justice system must provide for rehabilitation.
7. The system must operate with reasonable promptness.
8. The system must be flexible.
9. The system must also protect against offenses to persons and to property.
10. The military justice system must provide a commander with the authority and with the means to
maintain good order and discipline.
11. There should be no conflict between discipline and justice: The military justice system should
be an instrument of justice and in the process it will promote discipline.
12. Our system of military justice should protect the rights of individuals.
congress shall have Power. . . To make rules for the Government and Regulation
of the land and naval Forces."
 Military Justice Act of 1983, Pub. L. No. 98-209, § 3(a), 97 Stat. 1393.
 Gen. Orders
 See generally Richard W. Leopold, Elihu Root AND The Conservative Tradition (1954).
 The National Security Act of 1947, Pub. L. No. 80-253, 61 Stat. 495 (codified as amended in scattered sections of 10 and 50 U.S.C.).
 Foreign and Military Intelligence, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 755, 94 Cong., 2d Sess.
 Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub.L. 99-433, 100 Stat. 992 (1986).
 See supra note 5.
 Military Justice Act of 1968, Pub. L. No. 90-632, § 866, 82 Stat. 1335.
 Military Justice Act of 1983, Pub. L. No. 98-209, § 3(a), 97 Stat. 1393.
War Crimes Act of 1996, 18 U.S.C. § 1441 (West Supp. 1999).
See William G. Eckhardt,
 When confronted with the challenge of teaching difficult negatives, it is often best to teach positives. This is certainly true in teaching professional conduct on the battlefield. The best example of this strategy can be found in The Nine Marine Corps Principles.
THE NINE MARINE CORPS PRINCIPLES
1. Marines fight only enemy combatants.
2. Marines do not harm enemy soldiers who surrender. Disarm them and turn them over to your
3. Marines do not kill or torture prisoners.
4. Marines collect and care for the wounded, whether friend or foe.
5. Marines do not attack medical personnel, facilities or equipment.
6. Marines destroy no more than the mission requires.
7. Marines treat all civilians humanely.
8. Marines do not steal. Marines respect private property and possessions.
9. Marines should do their best to prevent violation of the law of war. Report all violations of the
law of war to your superior. (Or Judge Advocate, Chaplain or Provost Marshal.)
The Marine Corps Principles were adopted as The Soldier's Rules by the Army in Army Regulation 350-41, Training in Units (19 March 1993) as minimum training and knowledge for all personnel.
 The Army developed a concept of "Operational Law." That term was defined as follows: "Operational Law (OPLAW) incorporates, in a single military legal discipline, substantive aspects of international law, criminal law, administrative law, and procurement-fiscal law relevant to overseas deployment of US military forces. It is a comprehensive, yet structured, approach toward resolving legal issues evolving from deployment activities." Center FOR Military Law AND Operations AND International Law Division, THE Judge Advocate General's School, United States Army, Operational Law Handbook (2d ed.), Preface to Original OPLAW Handbook (1992). See Marc L. Warren, Operational Law-A Concept Matures, 152 Mil. L. Rev. 33-73 (1996).
 See generally supra note 18, at 695-98.
 German Philosopher of War, Carl von Clausewitz is the principal war theoretician. Carl Von Clausewitz, On War (Michael Howard & Peter Paret eds. & trans., Princeton University Press 1976).
 President's Address to the Nation, United States Air Strike Against Libya, April 14,1986, 22 Weekly Comp. Of Pres. Doc. 491-92 (April 21, 1986).
 I frequently use this phrase to describe the function of the armed forces. It is brutal, graphic, and accurate. Many try to soften the reality of war-e.g. "Humanitarian Law" instead of "Law of War." This phrase focuses attention on reality.
 The ideas
for this section were first articulated in an address before the Military Law
Committee of the American Bar Association on August 9, 1991, in
 From 1988 - 1991 I served as the Legal Advisor to the United States European Command. My principle task was "to bring the law into the battle staff" in an invigorated post Goldwater-Nichols Act Unified Command. Assisting me were Captain Thomas E. Randall, Colonel Keith Sefton, Colonel Werner Hellmer, and Lieutenant Colonel Richard A. B. Price who used their intellectual talents and creative energy to successfully bridge the high standards demanded by both the legal profession and the profession of arms. During this period, collectively, we became a full participant in the battle staff, we reviewed war plans and significantly upgraded their practical legal content, and we assisted in the articulation and implementation of strategy.
 See generally supra note 18, at 694-95.
 See generally supra note 2, at 3-21.
States Department of Defense Commission, Report of the DOD Commission on
of the Congressional Committee Investigating the Iran-Contra Affair,
 The articulation of the Just War Doctrine is not uniform. The articulation I use is as follows:
JUST WAR CRITERIA
JUS AD BELLUM
(JUST RECOURSE TO WAR)
JUST INTENTIONS (ATTITUDE AND GOALS)
PULBIC DECLARATION (OF CUASES AND INTENTS)
PROPORTIONALITY (MORE GOOD THAN EVIL RESULTS)
REASONABLE HOPE OF SUCCESS
(JUST CONDUCT IN WAR)
DISCRIMINATION (NONCOMBATANT IMMUNITY)
PROPORTIONALITY (AMOUNT AND TYPE OF FORCE USED)
Exerted from The United Methodist Council Of Bishops, In Defense Of Creation: The Nuclear Crisis AND A Just Peace 33-34 (1986).
E.g., Catholic: National
Conference OF Catholic Bishops, The Challenge Of Peace: God's
Promise And Our Response. A Pastoral Letter On War And Peace (May 3,
1983). Lutheran: the
 During my
assignment on the Faculty of the
 Department of the Army, The Army Lawyer: A History Of The Judge Advocate General's Corps, 1775-1975, 1 (1975). The full quotation has long been a favorite.
War has been said to be an impersonal thing, and in many respects it is. However, armies are
necessarily composed of human beings-who perform or influence the performance of great
actions; who bring new growth and new challenge; and who have the capacity to leave a legacy of honor, hard work and respect for the law.