Letter to the Editor from former U.S. Army JAG replying to Ryan Goodman on recent amends legislation

As a former judge advocate of the U.S. Army who served as a claims officer in Iraq for 14 months, I strongly support the new statute that allows for payments to be offered to civilian victims of U.S. military operations.  While Mr. Goodman provides a valid critique, there are legal and policy considerations that I believe trump his concern.  As he rightly points out, to receive a payment the civilian recipient must be “friendly to the United States” and the local commander is tasked with making that determination.

This requirement could be used by a commander to disqualify any number of people, including the examples provided by Mr. Goodman.  However, this is a cost that must be paid, and, I would argue, it will likely prove to be a small cost.

The Pentagon would not have supported the law and Congress would not have passed the law without the limitation that a recipient be “friendly.”  I do not disagree with their logic.  The military should not be in a position to pay an individual who engaged in, or supported, operations against the U.S. military or its interests.  Does that open a slippery slope?  Maybe, but having served as a claims officer and working with the Center for Civilians in Conflict for a number of years, including discussing this very issue with Pentagon officials and former and current judge advocates and commanders, I believe the benefits of the system outweigh this concern.

With or without the “friendly” requirement, the system would still be entirely discretionary, like the Foreign Claims Act, which provides payment for “noncombat activities.”  This means that a commander can refuse payment for any reason.  That discretion is necessary because commanders are operating in conditions that policy makers cannot always envision.

Further, every “ad hoc” system used since the Korean War provides similar requirements that recipients be “friendly” (for further reading, see here and here).  The reason why the Center for Civilians in Conflict fought so long and hard for a law to supersede the various ad hoc systems is because those systems were ineffective.  First, each one was created on the fly.  In Iraq, the system, known first as the condolence payment system, was not approved until September 2003, many months after my unit began patrolling central Baghdad.  Even after approval, it took many more weeks for funds to be available.  Because the ad hoc systems were not funded by “appropriated funds” from Congress money was scarce and unreliable.  Also, the nature of the ad hoc systems meant that there were no permanent regulations or pre-deployment training for attorneys or commandeers.  In effect, Iraqis were left dealing with a Kafkaesque system in which a unit in Baghdad might pay for the exact same thing that a unit a few miles away would not.  Now, because there will be “appropriated funds” and regulations that can be integrated into pre-deployment trainings, the system will be significantly more uniform and fair.

While there may be some commanders who decline payment that either Mr. Goodman or I might pay, that is a problem that I am afraid the politics of the situation cannot eradicate.  I would also mention two provisions in the new statute provide some oversight.  First, commanders are required to act only upon the advice of legal counsel.  Second, records are to be maintained by the Department of Defense and reported to Congress.  These provisions might not offer all the oversight we may want, but they constitute a significant improvement over the ad hoc systems while maintaining the commander’s discretion.

Finally, based on my time in Iraq and in discussing this issue with other judge advocates and commanders, the new system is much better for commanders.  Commanders generally understand the value of building trust and support within the local population.  With this permanent system, units will now be better able to make payments without yet again reinventing the wheel.

Jon Tracy was a U.S. Army judge advocate and served in support of Operation Iraqi Freedom from May 2003 to July 2004 where he adjudicated hundreds of claims under the Foreign Claims Act and the condolence payment system.  He has provided consultation to the Center for Civilians in Conflict since 2006.   

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