Military Studies

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MCI 8102

MARINE CORPS INSTITUTE

STAFF NONCOMMISSIONED OFFICERS

CAREER DISTANCE EDUCATION PROGRAM

MILITARY STUDIES

MARINE BARRACKS

WASHINGTON, DC

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MCI Course 8102 i Course Introduction

MILITARY STUDIES (8102)

Course Introduction

Scope The responsibilities of SNCOs increase with every rank reached. As an NCO, you will need continuing education on a variety of subjects to master these additional responsibilities.

Technical and tactical proficiency is the hallmark of the Marine Gunnery Sergeant. This course covers a wide range of subjects that will enhance your abilities in maintaining the high standards expected of the senior

non-commissioned officer ranks.

References The following references were used in the writing of this course: • Manual for Courts-Martial United States (2000 Edition). • FMFM 3-2, MAGTF Command and Control Support. • FMFM 6-1, Marine Division.

• FMFM 6-4, Marine Rifle Company/ Platoon.

• FMFRP 2-12, Marine Air Ground Task Force: A Global Capability. • FRFRP 0-14, Military and Associated Terms.

• MCDP 3, Expeditionary Operations.

• MCRP 5-12C, Marine Corps Supplement to the Defense Dictionary of Military and Associated Terms.

• MCRP 5-12D, Organization of Marine Corps Forces.

• MCWP 3.33.1, Marine Air Ground Task Force Civilian and Military Operations.

• MCWP 3.40.1, Marine Air Ground Task Force Command and Control. • Miller, William M. Col. USMC, Johnstone, John H. Maj., USMC, A

Chronology of the United States Marine Corps 1775-1934 Volume 1, 1934

• Marine Corps University Archives. • Leatherneck, December 2001 pg. 64.

• Marine Corps Historical Pamphlet, United States Marine Corps Ranks and Grades 1775-1969. Historical Division HQMC, 1969.

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MCI Course 8102 ii Course Introduction

Course Introduction,

Continued

References, continued

• O’Quinlivan, Michael. Enlisted Rank Insignia in the U.S. Marine Corps 1798-1958, Historical Branch, G-3. Headquarters U.S. Marine Corps, 1958.

• www.marinemedalscom • www.history.navy.mil

• www.usmc.mil/historical.nsf

• MCO P10520.3B, Marine Corps Flag Manual.

• Simmons, Edwin Howard, The United States Marines A History, 3rd

edition

• Department of the Navy, Naval Historical Center, Washington, D.C. • Stuart, James, letter dated 31 January 1860.

• Official Report of Col. Robert E. Lee, U.S.A. to Adjutant General, U.S. Army dated 19 October 1859.

• Millet, Alan R., SEMPER FIDELIS, The History of the United States Marine Corps: Macmillan Publishing Company, Inc. 1980.

• United States Marine Corps, record Group 127, National Archives of the United States, Washington, D.C.

• Marine Corps Historical Center, Reference Section, History Branch, History and Museums Division. Washington, D.C.

• MCO P1020.34F, Marine Corps Uniform Regulations.

Table of Contents

The following is the table of contents for this course.

Study Unit Title Page

-- Course Introduction i

1 Military Justice 1-1

2 The Marine Air Ground Task Force (MAGTF) 2-1

3 Marine Corps History 3-1

4 Changes to Uniforms 4-1

Review Lesson Exercise R-1

Estimated Study Time

You will spend about 9 hours 55 minutes completing this course. This includes the time you will need to study the text, complete the exercises, and take the final examination.

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MCI Course 8102 iii Course Introduction

Course Introduction,

Continued

Reserve Retirement Credits

You earn 3 retirement credits for completing this course. You earn reserve retirement credits at the rate of one credit for each 3 hours of estimated study time.

Note: Reserve retirement credits are not awarded for the MCI study you do during drill periods if awarded credits for drill attendance.

Summary The table below summarizes all important “gateways” needed to successfully complete this course.

Step When you Then you will For more information

1 Enroll in the program Receive your program material

Refer to the Program Introduction

2 Complete the self-paced text

Arrange to take the final examination

3 Pass the final examination

Receive a course completion certificate

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MCI Course 8102 iv Course Introduction

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MCI Course 8102 1-1 Study Unit 1

STUDY UNIT 1

MILITARY JUSTICE

Overview

Estimated Study Time 1 hour, 40 minutes

Scope Many factors have motivated the Congress of the United States to provide a separate military justice system. Crimes in the military society--unauthorized absence (UA), disobedience, disrespect, and conduct unbecoming of a

Marine, as examples, have no match in civilian criminal law. Military leadership requires you to participate in administering the criminal law process to the extent it affects your subordinates. This participation reinforces your leadership and control over those factors that influence the fighting capacity of the Marine Corps.

Learning Objectives

After completing this study unit, you should be able to • Define the purpose of the military justice system. • Explain the rules for a court-martial.

• Identify which offense has been committed. • Conduct a lawful search.

In This Study Unit

This study unit contains the following lessons:

Topic See Page

Lesson 1 Military Justice System 1-3

Lesson 2 Searches 1-27

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MCI Course 8102 1-3 Study Unit 1, Lesson 1

LESSON 1

MILITARY JUSTICE SYSTEM

Introduction

30 minutes

Scope This lesson provides a broad overview of the military justice system. It addresses subjects that are vital to staff non-commissioned officers with Marines under their charge or who are advising a commanding officer on military justice matters.

After completing this lesson, you should be able to • Identify the purpose of the military justice system. • Identify the sources of the military justice system.

• Identify the levels of the military justice system by function. • Identify the limitations of each punishment’s authorization. • Identify the convening authority by levels of justice.

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Introduction,

Continued

In This Lesson This lesson contains the following topics:

Introduction 1-3 Background Information 1-5 Sources 1-6 Process 1-9 Nonjudicial Punishment (NJP) 1-10 Summary Court-Martial (SCM) 1-13 Special Court-Martial (SPCM) 1-15 General Court-Martial (GCM) 1-16

SPCM and GCM Rights of the Accused 1-17

Courts of Military Review (CMR) 1-21

United States Court of Military Appeals (USCMA) 1-22

United States Supreme Court 1-23

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Background Information

Purpose The purpose of the military law and justice system is to provide a framework of law that regulates the military forces of our nation and ensures discipline, high morale, good order, and just treatment.

Military Law Military law is “the body of law which regulates the military establishment of a nation.” This body of law includes acts that establish the missions of the various branches, their authorized strength, and all the details that are required to administer the Armed Forces. The National Security Act of 1947 is an example of this type of act. The military justice system is the part of military law that corresponds to criminal law in civilian life.

Jurisdiction The military justice system applies to active duty military personnel, retired or reserve members who are entitled to pay or benefits, cadets, and

midshipmen. A complete listing of persons covered is given in Article 2 of the Uniform Code of Military Justice (UCMJ).

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Sources

Order of Precedence

The present system of military justice derives its authority from various sources in a precedence that must be followed. The following five sources below are listed in order of precedence:

• The Constitution • The UCMJ

• The Manual for Courts-Martial (MCM) • Congressional legislation

• Service regulations The

Constitution

The Constitution of the United States is the supreme law of the land. From it, the President, Congress, and the Supreme Court derive their authority. Section 8 of Article I grants Congress the authority to make rules for the regulation of land and naval forces, and by extension, air forces. The provisions of the Constitution apply to military justice unless specifically excluded by the Constitution itself.

The UCMJ Using its authority under the Constitution, Congress enacted a code of 140 articles to provide a basis for the administration of justice for the Armed Forces. Article 36 of the UCMJ authorized the President of the United States to prescribe the actual procedures to be followed when implementing the provisions of the UCMJ. The UCMJ may also be referred to as “the Code.”

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Sources,

Continued

The Manual for Courts-Martial (MCM)

Under the authority delegated by Congress, the President issues the MCM, which is the basic directive implementing the UCMJ. It sets forth such things as trial procedures, rules of evidence, and maximum punishments for

violations of the Code. The MCM is divided into six parts followed by an appendix.

Part Name Function

I Preamble Gives the source of military jurisdiction, what agencies may exercise military jurisdiction, and the nature and purpose of military law.

II Rules for Courts-Martial

The MCM gives the rules that govern the procedures and punishments in all courts-martial and also some preliminary,

supplementary, and appellate procedures. This is a descriptive analysis of procedures for military justice.

III Military Rules of Evidence

Gives the rules about evidence applicable in martial, including summary courts-martial.

IV Punitive Articles Articles 78-134, UCMJ, are the punitive articles. Article 77, Principals, and Article 79, Accessory After the Fact, explain who is punishable under these articles and explains accessory after the fact.

V Nonjudicial Punishment (NJP)

Explains the procedures for NJP including the authority, limitations of punishment, and appeals.

Appendixes Include the Constitution of the United States, UCMJ, maximum punishment chart, and an explanation of various forms.

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Sources,

Continued

Service Regulations

The Department of Defense, an executive department, and the Navy Department issue directives as authorized by Congress. An example of a directive is the Judge Advocate General Manual (JAG Manual) which contains instructions for implementing parts of the UCMJ and the MCM, which are unique to the Navy and Marine Corps.

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Process

Levels of Justice System

Basically, the military justice system provides a means to enforce military laws. Once a violation of the code has been brought to the attention of the proper authorities; the commanding officer investigates the charge to determine the validity of the allegation. Based on the results of this investigation, the commanding officer then decides if prosecution is warranted, and, if so, at what level.

The levels of the military justice system are • Nonjudicial punishment (NJP)

• Summary Court-Martial (SCM) (lowest level court) • Special Court-Martial (SPCM) (intermediate level court) • General Court-Martial (GCM) (highest level court) • Court of Military Review (CMR)

• United States Court of Military Appeals (USCMA) • United States Supreme Court

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Nonjudicial Punishment (NJP)

Article 15 “NJP”

NJP is often referred to as Article 15, company punishment, NJP, office hours, and captain’s mast. The term “mast” originated from the area around the main mast of sailing ships, the center where the ship’s company gathered. The area also served as a place for floggings and other punishment.

Therefore, in the Navy, an Article 15 punishment is known as a “mast” or “captain’s mast.” In the Marine Corps, the customary name of the proceeding is “office hours.”

Convening Authority

Company commanders and an OIC, given authority, may award NJP to both enlisted and officers of their command. They may not, however, delegate their authority. For example, a colonel may not give a by-direction authority to a captain to award NJP to an individual when the colonel is the convening authority.

Objective of NJP

The primary objective of NJP is to correct the offender for minor breaches of discipline without the stigma of a court-martial conviction. Used properly, such authority in the hands of commanding officers can be an effective tool for promoting good order and discipline within the military.

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Nonjudicial Punishment (NJP),

Continued

Authorized Punishments

Article 15 (office hours) punishments can be imposed together or limited by grade. Sentences awarded can, at a future time, be vacated. Below are punishments that can be imposed by grade of the convening authority.

Company grade officers can impose • Correctional custody for 7 days • Forfeiture of not more than 7 days

pay

• Reduction to the next inferior pay grade

• Extra duties for not more than 14 days

• Restriction for not more than 14 days • Admonition or reprimand

Field grade officers can impose • Correctional custody for not more than 30 days

• Forfeiture of not more than ½ of 1 months basic pay per month for 2 months

• Reduction to the next inferior pay grade

• Extra duties for not more than 60 days

• Restriction for not more than 60 days • Admonition or reprimand

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Nonjudicial Punishment (NJP),

Continued

Right to Appeal If NJP is imposed, the accused must be informed of his right to appeal the punishment to the next superior authority if he feels that the punishment is unjust or disproportionate to the offense.

The superior authority to whom the appeal is made, as well as the officer who imposed the punishment, may at any time suspend probationally any part of the unexecuted punishment. He may remit, mitigate, or set aside the

punishment, whether executed or unexecuted, and restore all rights, privileges, and property affected.

Appeal Procedures

This appeal must be in writing. The accused must submit it within five working days of imposition of punishment.

A Marine who has appealed may be required to undergo any punishment imposed while the appeal is pending.

If action is not taken on the appeal within five days after the appeal was submitted and if the service member has so requested, any unexecuted

punishment involving restraint or extra duty must be stayed until action on the appeal is taken.

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Summary Court-Martial (SCM)

Function The function of the summary court, the lowest level court, is to exercise justice promptly with a simple procedure for non-capital offenses such as • Unauthorized Absence (UA)

• Disrespect • Disobedience

Jurisdiction Summary courts-martial have jurisdiction to try only enlisted persons subject to the Code for any non-capital offense made punishable by the Code. Officers may not be tried by summary courts-martial.

A convening authority is a person empowered by law to create a court-martial. The lowest unit commanding officer in the Marine Corps who may convene a summary court-martial is a battalion/squadron commander with the exception of the officer ranks authorized by Articles 22 and 23, UCMJ, and Section 0115, JAG Manual. Anyone who may convene a special or general court-martial may also convene a summary court-martial.

Composition A summary court-martial is composed of one commissioned officer on active duty. According to Naval policy, the summary court-martial officer must be a Navy lieutenant or Marine captain. In some commands, the officer

designated must be a major. The officer should be appointed on the basis of age, training, experience, length of service, and judicial temperament. The summary court-martial officer does not have to be a lawyer; he may carry any MOS. He acts as judge, jury, trial counselor, and counselor for the defense.

Power A summary court-martial has the power to subpoena witnesses, take depositions, and punish for contempt of court. All witnesses must testify under oath or affirmation. There are no challenges in a summary court-martial. A summary court-martial is a Federal court, and a conviction will follow a Marine throughout his/her remaining military and civilian career.

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Summary Court-Martial (SCM),

Continued

Rights of the Accused

At a summary court-martial the accused has the right to • Refuse trial by a summary court-martial

• Consult with counsel before making decisions about the court • Be represented by a civilian counsel at his own expense if such

representation would not delay the proceedings • Cross-examine witnesses and examine evidence • Call witnesses and introduce evidence

• Remain silent Authorized

Punishments

SCM can punish the offender with • Confinement for 30 days

• Hard labor without confinement for 45 days • Restriction for 60 days

• Forfeiture of two-thirds pay per month for 1 month • Reduction in grade to the lowest enlisted pay grade

Note: In the case of noncommissioned officers above the fourth pay grade (sergeants and above), the summary court-martial may not adjudge confinement or hard labor without confinement and may reduce in grade only to the next lower grade.

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Special Court-Martial (SPCM)

Purpose The purpose of this court is to exercise justice for cases that are serious but non-capital, such as desertion, assault, larceny, and robbery. The special court-martial (SPCM) is also described as an intermediate level court.

Jurisdiction Special courts have jurisdiction to try officers and enlisted persons subject to the code for any non-capital offense made punishable by the Code.

Only battalion and squadron commanders or above and those officers authorized by Articles 22 and 23, UCMJ, and section 0115 of the JAG Manual may convene a special court-martial.

Composition The special court-martial is composed of at least three members and a military judge.

Rights of the Accused

Accused persons appearing before a special court-martial have the same rights as persons appearing before a general court-martial. These rights are discussed on following pages.

Authorized Punishment

This is any punishment that is not limited by the code except: • Death

• Dishonorable discharge • Dismissal

• Hard labor without confinement for more than 3 months • Confinement for more than 6 months

• Forfeiture of more than 2/3 pay for more than 6 months

The most severe sentence is 6 months’ forfeiture, 6 months’ confinement, reduction to private, and a bad conduct discharge. This is generally referred to as “6, 6, and a kick.”

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General Court Martial (GCM)

Purpose The purpose of this court, the highest level court, is to exercise justice for cases that are of a very serious nature including capital offenses, such as rape, manslaughter, arson, treason, and mutiny.

Jurisdiction This court may try officers and enlisted personnel.

The general court-martial may be convened only by those flag or general officers in command of units or activities designated by section 0115, JAG Manual in addition to those authorized by Article 32, UCMJ.

Composition The general court is composed of at least five members and one military judge.

Authorized Punishment

A general court-martial may award any allowable punishment to include death, confinement, reduction, forfeiture of all pay, and discharge.

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SPCM and GCM Rights of the Accused

Cannot Refuse The accused cannot refuse either a special or general court-martial.

Detailed 27(b) Counsel

When a case is referred to a special or general court, a military counsel must be detailed for the accused. This counsel is referred to as a “27(b)” counsel because the officer must meet the qualifications under Article 27(b), UCMJ. Basically, the officer must be a

• Graduate of an accredited law school

• Member of the bar of a Federal court or the highest court of a state • Judge advocate as certified by the judge advocate general of his/her

Armed Force.

Right to a Military Lawyer

In addition to the right to detailed counsel, the accused at a general or a special court-martial has the right to have a military counsel of his/her own choice defend him, if such counsel is available. Such a requested counsel must meet the same qualifications listed under Article 27(b), UCMJ. The accused has a right to the assistance of both a requested counsel and a detailed counsel. The detailed counsel can be excused if the accused so desires.

Availability of Requested Counsel

In determining whether a requested counsel is reasonably available, all the facts and circumstances should be taken into consideration, including the duties and the geographical location of the requested counsel and military situation. No particular reason for the request of the accused is required. For example, a Marine stationed in Iwakuni, Japan, may request a Marine lawyer from El Toro, California because he wants the help of someone from another base. Even if the accused does not know this attorney personally, the attorney must be provided unless his duties would prohibit his leaving his post. Distance and cost alone are not a reason for the attorney to be unavailable.

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SPCM and GCM Rights of the Accused,

Continued

Civilian

Representation

In addition to representation by a military counsel of his/her own choice, a civilian lawyer can also represent the accused. The civilian lawyer must be retained at the expense of the accused. The civilian counsel must be a member in good standing of a state or Federal bar.

The detailed military counsel can be retained to assist the civilian counsel or may be excused altogether.

Self-Representation

An accused may represent himself at any trial by court-martial. The court may accept a request for self-representation only after advising the accused of his rights to be represented by qualified counsel. The military judge

determines if the accused is capable of representing himself.

Non-legal Representation

At a general or special court-martial at which an accused can receive a bad conduct discharge, a civilian or military member who is not a lawyer (non-lawyer) cannot represent the accused. However, a non-lawyer may be present at the defense table for consultation.

Guidelines on Attorney Contact

Headquarters Marine Corps (HQMC) has published recent guidelines as to when an accused who is in pretrial confinement must be contacted by an attorney. Within 24 hours after the commencement of confinement, a judge advocate must personally visit the accused. Within 72 hours after the commencement of pretrial confinement, the detailed counsel or requested counsel must personally interview the accused.

Method of Trial The accused in a special or general court-martial has the right to choose

among three alternatives what person or group of persons will sit in judgment. The alternatives include

• Trial by judge

• Trial by a panel of officers

• Trial by a panel of officers and enlisted personnel

The decision on the alternatives must be made before the trial with the assistance of the defense counsel.

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SPCM and GCM Rights of the Accused,

Continued

Trial by Judge The first alternative that an accused has is to be tried by a military judge alone who will determine guilt or innocence, and the sentence, if the accused is found guilty. The qualifications for a military judge are set forth in Article 26(b), UCMJ: He must be a commissioned officer, a member of a state or Federal bar, and certified as a military judge by the Judge Advocate General of the Navy. Such certification is normally given to judge advocates

(captains and above) who have had trial experience as defense or prosecuting counsel.

Panel of Officers

The second alternative that the accused has is the panel of officers that the convening authority has designated for his court. Before trial, the order designated by the court members is made available to the accused and his counsel. The attorney can then determine whether it would be in the best interest of his client to be tried by the officers designated or to select a different alternative. The panel of officers may be no fewer than three members for a special or five members for a general court-martial.

Panel of Mixed Rank

The third alternative that the accused has, if he is enlisted, is to elect a trial by a panel of officers and enlisted personnel. If the accused requests that

enlisted personnel be added to the court, then at least one-third of the court must be enlisted. If dividing the numbers of court member’s results in a quotient with a fraction, the number of enlisted members is rounded up (2 1/3 becomes 3). Upon such a request from the accused, the convening authority details an appropriate number of enlisted personnel to sit as court members. The enlisted personnel on the court cannot be from the same unit as the accused and they must all be senior in rank to the accused.

Sentencing If the accused is found guilty, the same persons who tried him will sentence him.

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SPCM and GCM Rights of the Accused,

Continued

Right to Challenge

The accused has a right to reject certain court personnel after they are

detailed. This is called the right to challenge. The two types of challenge are • Challenge for cause

• Peremptory challenge

Challenge for Cause

Rules-Court-Martial 912(f)(1) lists the grounds upon which a military judge or court member may be challenged for cause. For example, if any one of the members of the court is a witness for the prosecution or was an investigating officer in the case, he would be excused from participating in the case upon challenge from either side.

In addition to any pretrial investigation they may have done, both counsels have the opportunity during the first stage of the trial to question the court members and the judge to determine if any grounds exist that form the basis for the challenge for cause. If the judge finds a legitimate basis for the challenge, he will dismiss himself or the challenged member automatically.

Peremptory Challenge

The peremptory challenge is an arbitrary challenge. When a peremptory challenge is made, the challenged member is automatically excused without any deliberation. There is only one peremptory challenge for both sides, and the peremptory challenge may be used only against a court member, not the judge.

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Courts of Military Review (CMR)

Within JAG These courts are established within the office of the judge advocate general (JAG) of each military department.

Types of Cases They decide questions of law and fact and review sentences that involve punitive discharge, confinement for one year or more, or dismissal of an officer.

Automatic Review

This is an automatic review except when the accused waives or withdraws appellate review in accordance with (R.C.M.) 1110, MCM, 1998.

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United States Court of Military Appeals (USCMA)

Highest

Appeals Court

Although all citizens have ultimate recourse to the Supreme Court of the United States, The United States Court of Military Appeals (USCMA), established by Congress under the authority of Article I of the Constitution, is the highest appeals court within the military justice system.

Composition The USCMA is composed of three civilian judges whom the President appoints. They serve for terms of fifteen years.

Types of Cases The USCMA decides questions of law. It interprets, and if necessary, modifies the UCMJ and subordinate regulations.

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United States Supreme Court

Military Justice Act of 1983

The new feature of the Military Justice Act of 1983 provides for the U.S. Supreme Court to review, at its discretion, certain military cases where the USCMA has acted. This court is also referred to as the highest court in the land.

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MCI Course 8102 1-24 Study Unit 1, Lesson 1 Exercise

Lesson 1 Exercise

10 minutes

Directions Complete items 1 through 8 by performing the action required. Check your answers against those listed at the end of this lesson.

Item 1 The purpose of the military justice system is to

_____________________________________________________________ _____________________________________________________________ _____________________________________________________________

Item 2 One source for the military justice system is a. the Magna Carta.

b. congressional legislation. c. the laws of land warfare. d. legal judgements.

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Lesson 1 Exercise,

Continued

Item 3 Through 6

Matching: In the space provided place the letter of the level of the military justice system in column 2 that best describes the function listed in column 1. The answers in column 2 maybe used only once.

Column 1

Function

Column 2

Level of the Military Justice System

___ 3. For serious but non-capital offenses such as desertion, robbery, larceny, assault etc. ___ 4. Simple procedures for minor offenses such as disrespect, unauthorized absence, or disobedience

___ 5. Office hours

___ 6. For cases very serious in nature including capital offenses (rape, manslaughter, arson, treason, etc.)

a. Nonjudicial punishment (NJP) b. Summary Court-Martial (SCM) c. Special Court-Martial (SPCM) d. General Court-Martial (GCM) e. Court-Martial

Item 7 How long do you have to appeal NJP? a. 14 working days

b. 7 working days c. 5 working days d. 24 hours

Item 8 Who can convene a General Court Martial? a. Captain in the Army

b. General officer

c. Colonel in the Marine Corps d. Major in the Judge Advocate

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Lesson 1 Exercise,

Continued

Answers The table below provides the correct answers to the exercise items. If you have any questions, refer to the reference page listed for each item.

Item Number Answer Reference Page

1 Provide a framework of law that regulates the military forces of our nation and ensures discipline, high morale, good order, and just treatment.

1-5 2 b 1-6 3 c 1-15 4 b 1-13 5 a 1-10 6 d 1-16 7 c 1-12 8 b 1-16

Summary This lesson provided you with information about the basis of the military justice system, the types of punishments and courts, the rights of the accused, and the levels of appeal. The next lesson will discuss searches.

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LESSON 2

SEARCHES

Introduction

Estimated Study time 20 minutes

Lesson Scope Just as the fifth amendment of the Constitution protects you from testifying against yourself, the fourth amendment safeguards your right to physical privacy. This lesson will cover what types of searches are legal and the limits to physical privacy.

After completing this lesson, you should be able to • Identify the definition of probable cause. • Identify the legal objects of a search. • Identify the types of lawful searches.

Introduction 1-27

Probable Cause 1-28

Legal Objects of a Search 1-29

Types of Searches 1-30

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Probable Cause

Definition Probable cause exists when there is a reasonable belief that the property, or evidence sought is located in the place or on the person to be searched.

Waiver Just as the right to remain silent may be waived, Marines may voluntarily give up their Constitutional protection from unreasonable searches.

Authority If a Marine does not desire to waive this Constitutional protection, and you still wish to search the individual Marine or their property, then you must be able to show that the search is reasonable to gain the authority to search.

Basis for

Probable Cause

To legally search an individual or their property, you must first show probable cause or obtain that individual’s willing consent to do a search of their property. Failure to do so will cause any results of the search to be inadmissible as evidence in a trial by court-martial.

Fruit of the

Poisoning Tree

Knowledge of what constitutes a lawful search and seizure is very important because only evidence seized during a lawful search is admissible in a court-martial. Evidence seized through leads obtained during an illegal search is inadmissible. This tainted evidence is known as the “fruit of the poisoning tree.”

Example Pvt. Smith’s commanding officer (CO) searches her off-base apartment because the CO believes the private is hiding marijuana there. During the search, the CO finds no marijuana, but discovers a letter in which the private tells a friend that she has hidden marijuana in her car. The CO searches the car and seizes the marijuana. Neither the letter nor the marijuana is

admissible in court because the search of the apartment was unlawful. Military personnel have no authority to search an off-base residence in the United States.

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Legal Objects of a Search

Four Categories

Only certain items are legal objects of a search. To conduct a legal search, the objects you look for must fall under one of the following four categories • Instruments of the crime

• Evidence of the crime • Fruits of the crime • Contraband Instruments of

the Crime

These are items which have been used to commit a crime, but which are not illegal to have, such as a stocking mask and hunting knife.

Evidence of the Crime

These are items, beyond actual weapons, which could link the accused to a crime, such as blood-stained clothing or a gunshot wound.

Fruits of the Crime

These are items in the possession of the accused as a result of the crime, such as stolen jewelry or a stolen car.

Contraband These items are illegal to possess under any circumstance. During an authorized search, they may be seized.

Resisting

Arrest Search

In a search of an individual resisting arrest, you may search for and seize items that a suspect could use to escape or resist arrest.

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Types of Searches

Six Types There are six types of searches

• Searches authorized by commanding officer • Necessity searches

• Searches pursuant to a search warrant • Consent searches

• Searches incident to lawful apprehension

• Searches where no expectation of privacy exists Search

Authorized by Commanding Officer

The most common type of search is the one authorized by a commanding officer. The search must be within the commanding officer’s area of jurisdiction and is limited to property and persons subject to military

authority. This authority may not be delegated. Civilians and their property may not be searched.

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Types of Searches,

Continued

CO’s Search Limitations

A commanding officer’s ability to authorize a search is limited by several factors. The commanding officer

• Is limited by the probable cause requirement as to what can be searched. He may search only where he reasonably believes evidence will be found. • Can authorize a search of personnel only within his command,

jurisdiction, whether they are on or off base, and in any area or property under his control. This area or property must be on base.

• Can also authorize a search of his command which includes all

government property or property owned by personnel under his authority. For example, a commanding officer could order a search of a Marine’s room on base if he had probable cause, but not of an apartment in a civilian housing area. The commanding officer could also authorize a search of a Marine’s private vehicle if it were on base.

• Must be neutral and detached and must perform his duties with a judicial, rather than a police attitude. For example, a commanding officer is not permitted to personally conduct a search he has authorized. He cannot authorize a search when he has been personally involved in gathering information, which would lead to probable causes to authorize such a search. The order must be sure to state precisely what person or place is to be searched and the object of the search.

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Types of Searches,

Continued

Necessity Search

In some cases, there may not be time to obtain authorization from the CO to conduct a search. In cases where immediate action is necessary to prevent the removal or destruction of evidence, a necessity search may be conducted. In such a case, you must not only establish probable cause, but also show that the commanding officer could have properly authorized the search if there had been time. You must demonstrate that the circumstances preclude obtaining permission in the normal way.

Searching Outside of Jurisdiction

Occasionally, a commanding officer may find that there is probable cause to search an area outside his jurisdiction. If the area is subject to military control, the appropriate commanding officer, who has been contacted and given the evidence for probable cause, can authorize the search. In the case of off-base civilian property, the case is brought to the attention of the civilian authorities having judicial powers over the suspected area. Upon being convinced that probable cause does exist, the civilian judiciary issues the warrant, which is then served by appropriate civilian law enforcement agency. Military personnel may act as observers, but do not take an active part in the search.

Consent Search In this case, the owner of the property or the person to search freely gives their consent to search. No probable cause is needed in this kind of search. Promises of better treatment or threats should never be used to gain consent. If there is no legal right to search, consent to search should not be induced by any means.

Article 31 Warning and Consent Search

When asking suspects for their consent to search, it is not required to give Article 31 rights and warnings; however, it helps to establish that the consent was voluntary if you have given the warnings. If the suspect does not want to make a statement or answer questions without a lawyer, you may still ask him whether he consents to a search. It is best to advise the suspect that he has a right to withhold the consent before asking him to consent. It is always proper to have a third party present during a search to protect yourself from being accused of illegal actions during or after the search.

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Types of Searches,

Continued

Search Incident to Lawful Apprehension

When a lawful apprehension is made, the apprehending personnel are authorized to conduct a search of the person being apprehended and the immediate area in which the person was apprehended. This search, which is designed to prevent the destruction or disposal of evidence and to protect the person performing the apprehension by revealing any weapons, must be conducted as soon as possible after the apprehension.

Who May Apprehend

Any officer, warrant officer, staff noncommissioned officer or

noncommissioned officer can apprehend anyone who falls under the UCMJ.

Who May be Apprehended

The law states that you can apprehend a person only when you have probable cause to apprehend or to quell any disturbance of verbal or physical nature. This can include civilians within military jurisdiction.

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Types of Searches,

Continued

What May be Searched

The law allows for the search of an apprehended person, his body and

clothing and the immediate area where the person has been apprehended. The law allows you to search in a manner to protect yourself. If in the course of a search you find incriminating evidence, it may be seized.

Search Where No Expectation of Privacy Exists

The right to be free from unreasonable searches applies only to an

individual’s body and property. It does not apply to government property used by the accused in the execution of his duties. Areas such as office desks, government vehicles, etc., may be legally searched without consent or

probable cause since no expectation or right of privacy exists. On the other hand, areas such as wall lockers, used mainly for personal gear, do fall under the provisions of the Fourth Amendment. For example, a wall locker used to store personal gear cannot be searched without probable cause; the wall locker and its contents would be considered personal property and therefore protected by the Fourth Amendment.

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Lesson 2 Exercise

10 minutes

Directions Complete items 1 through 3 by performing the action required. Check your answers against those listed at the end of this lesson. If you have any questions, refer to the reference page listed for each item.

Item 1 Which of the following is considered a reasonable belief that a crime has been committed and that the item being searched for is in the place being searched?

a. Not a good enough reason to search b. Probable cause

c. A fact admissible in court d. Evidence of the crime

Item 2 Which of the following is a legal object of a search? a. Marine in possession of pistol on private property b. Marine in possession of marijuana on private property c. Marijuana found in Marine’s a car off base

d. Marijuana found in Marine’s car on base

Item 3 Identify which of the following is a lawful search? a. Search authorized by the commanding officer.

b. Search authorized and conducted by the commanding officer. c. PFC Warrior consents to a search after being told, “Things could go

easier for you.”

d. PFC Warrior consents to a search after being told, “We are going to search anyway, you could make it easier.”

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Lesson 2 Exercise,

Continued

Item Number Answer Reference

1 b 1-28

2 d 1-29

3 a 1-30

Summary This lesson provided you with information on obtaining proper authorization for searches and on how to conduct a lawful search. The next lesson will discuss the laws of land warfare.

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LESSON 3

LAWS OF LAND WARFARE

Introduction

20 minutes

Lesson Scope A soldier can justifiably kill his military enemy counterpart who is trying to kill him, but it would be a criminal act to attack or kill a member of the enemy population whose fate is irrelevant to the outcome of the conflict or an enemy that is disarmed and is attempting to surrender. In this lesson, we will cover the sources of the law, basic concepts and forbidden targets, and tactics and techniques that violate the laws of war.

Learning

Objectives

After completing this lesson, you should be able to • Identify the sources for the laws of land warfare. • Identify a noncombatant.

• Identify factors that may contribute to violating the laws of land warfare.

Introduction 1-37

Background 1-38

Concepts 1-39

Forbidden Targets, Tactics and Techniques 1-40

Enemy Captives and Detainees 1-41

Unlawful Acts and Orders 1-43

Responsibilities of the Staff Noncommissioned Officer 1-44

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Background

Sources of the Law

Laws of land warfare are ideas of honor and civility that were created to maintain some compassion at a time of war. The laws of land warfare were derived from two principal sources.

• Treaties

• Customary laws

Treaties Certain treaties have long been a source for the laws of land warfare. Two that the United States has adopted for the use during armed conflicts are the Hague Rules of 1907 and the Geneva Convention of 1949.

Customary Laws

Customary laws came about due to practices in war that were and are so universally undesirable or contemptible that their condemnation has assumed legal force. The rationale behind customary laws is that there can be definite advantages to observing certain restraints during war. Causing unwarranted suffering and pain to the enemy or cruelty to a local civilian population, which has nothing to do with accomplishing the mission at hand, can cause a loss of tactical superiority and dehumanize those involved in conducting the act. This may also lead to defeat on the battlefield. The white flag of truce, which came to be respected during the middle ages, is just one example of conduct in accordance with a customary law.

Purpose of the Laws of Land Warfare

The purpose of the laws of land warfare is an attempt to regulate and reduce the violence of war by

• Protecting both combatants and noncombatants from unnecessary suffering

• Safeguarding fundamental human rights of persons who fall into the hands of the enemy

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Concepts

Effects The laws of land warfare place limits on the exercise of an enemy’s use of power in an armed conflict. They require that opposing forces refrain from using any degree of violence unnecessary for the prosecution of military operations. The laws of land warfare require that combatants conduct hostilities so as to avoid undue suffering.

Military Necessity

Military necessity is the application of force which justifies those measures (not forbidden by law) required for securing the complete submission of the enemy.

Unnecessary Suffering

Unnecessary suffering recognizes the humanitarian need for restraint even in the violence of combat. This principle applies not only to the degrees of violence, but also to dishonorable or deceptive acts which would encourage abuse.

Binding on States and Individuals

The laws of land warfare are binding on all combatant nations and members of their respective Armed Forces.

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Forbidden Targets, Tactics, and Techniques

Improper Actions

The laws of land warfare cover actions that are considered improper on the battlefield. There are portions of the laws that cover the safeguarding of defenseless people and property not directly involved with military activity. The use of unlawful targets, techniques, and tactics may be dangerous in itself. It is likely to enrage enemy soldiers, causing them to fight harder or to use illegal methods of their own.

Noncombatants All persons participating in military operations or activities are considered combatants. This distinction is not always easy to make. Guerrillas often mix with or disguise themselves as civilians. Noncombatants are persons not participating (meaning that they don’t have an RPG, AK-47, or grenade in their hand) in military operations or activities. They include

• Civilians

• Medical personnel • Chaplains

• POWs and detainees • Sick and disabled • Wounded

Common Rules • Individuals parachuting from a disabled aircraft are considered helpless and are noncombatants. On the other hand airborne troops exiting a aircraft for the purpose of combat would be considered combatants and can be fired on while still in the air.

• Don’t fire upon any medical personnel, vehicles, buildings, tents, or other facilities used for the care of the wounded, sick, and disabled. You cannot mark yourself or your position with a medical service symbol unless you have been designated to perform such duties.

• You are not allowed to attack villages, towns, or cities unless required by the mission. You do not destroy a town, city, or village to remove one sniper.

• Using poisons or chemical weapons is against the laws of land warfare. • The laws of land warfare prohibit the alteration of weapons or

ammunition to inflict undue suffering and dismemberment to the enemy. Flame throwers, napalm, and shotguns are not forbidden by the laws of land warfare. Using a bullet with an altered tip, however, would be considered an act that violates the laws of land warfare.

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Enemy Captives and Detainees

Terminology The terms captives and detainees will be used here instead of prisoners of war because the laws of land warfare apply to all persons who come under your control in combat. You capture combatants and detain noncombatants.

Signals Enemy soldiers may signal you by waving a white flag, or abandoning their positions with their arms raised as the enemy did in the Persian Gulf War. The way they signal their desire to stop fighting may vary, but you must allow them to give up once you receive the signal.

Restrictions When Dealing with Captives

There are certain restrictions to follow when dealing with captives. The four restrictions with captives are

• When you capture enemy soldiers or detain noncombatants during combat, you must treat them humanely.

• You may question captives or detainees for military information, but never use threats or other forms of coercion. An enemy captive is required to give only his rank, serial number, and date of birth. • You must safeguard captives and detainees from dangerous combat

activities. Captives and detainees can dig foxholes or bunkers for their own protection but are not required to work in support of war.

• You may search captives or detainees for military intelligence or items that could be harmful to themselves or friendly troops.

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Enemy Captives and Detainees,

Continued

Civilians and Private Property

It may be difficult to understand the rage and anguish of seeing personal rights abused and property destroyed. Our nation has not been torn by the devastation and destruction of war (the attacks of September 11th 2001 are the exception to what is being addressed in this lesson). There are four general rules when dealing with civilians and private property in combat:

• Provide protection for civilians from verbal and physical attacks. Women in war zones will be protected from rape and forced prostitution.

• Do not take non-military items while searching dwellings in enemy towns, villages, or cities.

• It is lawful to move or resettle civilians if it is urgently required for military reasons.

• Do not start fires in civilian homes or dwellings or burn their property unless the necessities of war urgently require you to do so.

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Unlawful Acts and Orders

Confusion Fear and Stress

All Marines have a duty to prevent criminal acts where U.S. forces are

involved. In the dehumanizing environment of war, wearied Marines can lose their sense of identity. Marines become fatigued from lack of food and sleep. The experience of constant violence may lead to general confusion, fear, and stress. The result can be the deterioration of discipline and moral values within a unit. These factors can cause Marines to commit unlawful acts. However, atrocities or illegal acts of war do not become more acceptable because they were committed by Marines who were “in the bush” too long.

Required Action

If you see an act being committed that is clearly a violation of the laws of land warfare, you must act to prevent it. If the crime directly and

immediately endangers your life or the life of another person, you may use deadly force to prevent it.

Orders Any order to commit a crime, such as murder, rape, arson, torture, or pillage, is in violation of the laws of land warfare. Such an order is clearly criminal and unlawful. This order would also violate any common sense rules of decency, social conduct, and morality, and not be in standing with what the Marine Corps would find acceptable in an armed conflict.

Crimes You must report any and all crimes in combat. If a crime involves your immediate superiors, report it to their superior. An individual may be tried and convicted for crimes committed in combat even after they have left service.

Example Marines who kill captives and detainees cannot excuse themselves from the act by stating that they were told to “take care of them” and took it as an order to execute them.

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Responsibilities of the Staff Noncommissioned Officer

Prevent Violations

The SNCO must take all possible measures to prevent violations of the laws of land warfare by subordinates. He is responsible if he has knowledge of a crime and fails to take steps to ensure compliance with the laws of land warfare. He must ensure that his subordinates do not violate the laws of land warfare. Ignoring the actions of subordinates does not remove the SNCO from responsibility for their actions.

Reasons for Violations

When combat occurs, it is frequently sudden, unexpected, and characterized by extremely violent action, savage behavior, and intense danger. These violent acts of combat tend to bring out certain behaviors which could be possible reasons for violations of the laws of land warfare. There are five main reasons this could occur.

• Fear • Stress • Personality problems • Frustration • Fatigue Psychological Danger

Seeing a fellow comrade wounded or killed will have a traumatic impact on yourself or your Marines. Combat is a brutal event, and casualties are to be expected. The shock of seeing friends killed tends to bring out an “eye for an eye” mentality which can lead to a violation of the laws of land warfare. This psychological danger can happen to any Marine regardless of rank.

SNCO Leadership Factor

The SNCO must be aware of problems caused by the horror and confusion of battle. He must ensure that commands are obeyed and that the commands are in conjunction with the laws of land warfare. The leadership of the SNCO is the cornerstone of Marines in combat and will be the factor that can prevent any violation.

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Lesson 3 Exercise

10 minutes

Directions Complete items 1 through 3 by performing the action required. Check your answers against the correct answers at the end of this lesson.

Item 1 Which of the following is a source of the laws of land warfare? a. The Constitution

b. The Hague Rules c. The Magna Carta d. The Articles of War

Item 2 Select the noncombatant from the following choices. a. Enemy soldier with a radio

b. Enemy soldier riding a bike c. Man with a dog

d. Uniformed woman in vehicle

Item 3 Which of the following can be a factor in violating the law of land warfare? a. Happiness

b. Stress c. Cowardice d. Corruption

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Lesson 3 Exercise,

Continued

Item Number Answer Reference

1 b 1-38

2 c 1-40

3 b 1-44

Summary This lesson provided you with information about the laws of land warfare and on the responsibilities staff noncommissioned officers have for compliance with those laws.

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STUDY UNIT 2

THE MARINE AIR GROUND TASK FORCE (MAGTF)

Overview

1 hour, 15 minutes

Unit Scope This study unit teaches you how the operational forces in Marine Corps units are formed into Marine Air Ground Task Forces (MAGTF) for deployment, training, and combat operations. This study unit also teaches you about the Special Purpose MAGTF (SPMAGTF).

After completing this study unit, you should be able to

• Identify the elements of a Marine Air Ground Task Force (MAGTF). • Identify the purpose of a MAGTF.

• Identify the components of a MAGTF.

• List the components of a Special Purpose MAGTF (SPMAGTF). • Explain the concept of employment of a SPMAGTF.

• State the mission of a Marine Expeditionary Force (MEF). • List the components of a MEF.

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Overview,

Continued

In This Study Unit

This study unit contains the following lessons:

Lesson 1 The Marine Air Ground Task Force (MAGTF), and Special Purpose MAGTF (SPMAGTF)

2-3 Lesson 2 Employment of a Marine Air Ground Task Force 2-23

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LESSON 1

MARINE AIR GROUND TASK FORCE

Introduction

30 minutes

Lesson Scope The objective of this lesson is to teach you the elements and structure of a Marine Air Ground Task Force (MAGTF), and a Special Purpose MAGTF (SPMAGTF).

After completing this lesson, you should be able to

• Identify the four basic forces of a Marine Air Ground Task Force (MAGTF).

• Identify what the Command Element (CE) provides the MAGTF. • Identify what the Ground Combat Element (GCE) provides the MAGTF

commander.

• Identify the mission of an Air Combat Element (ACE).

• Identify the units that make up the Combat Service Support Element of a MAGTF.

• Identify some of the mission of a Special Purpose MAGTF (SPMAGTF). • Identify the size of a SPMAGTF.

• Identify the concept of employment of a SPMAGTF.

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Introduction,

Continued

Introduction 2-3

Marine Air Ground Task Force 2-5

Command Element 2-9

Ground Combat Element 2-10

Air Combat Element 2-13

Combat Service Support Element 2-16

Mission of a Special Purpose MAGTF (SPMAGTF) 2-18

Lesson 1 Exercise 2-19

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Marine Air Ground Task Force

Background The Marine Air Ground Task Force (MAGTF) organization is based on combined arms integration of ground combat, aviation combat, and combat service support elements into a cooperative team under a single Marine commander and command element (CE). The concept for this organization traces its origins back to the 1920s when the Marine Corps shifted its primary mission from defending advanced naval bases to seizing them. In adopting this new mission, Marine Corps planners had to address many problems associated with making landings on hostile shores. Foremost among these problems was developing a tactical unit that had the combat potential, balance, and flexibility necessary to accomplish amphibious warfare.

Composition The Marine Air Ground Task Force (MAGTF) is the Marine Corps’ principal warfighting organization for all missions across the range of military

operations. The MAGTF provides a combatant commander in chief or other operational commanders with a versatile expeditionary force for responding to a broad range of crisis and conflict situations. They are designed to be light enough to get there and heavy enough to win battles. MAGTFs are balanced, combined arms forces with organic command, ground, aviation, and sustainment elements. MAGTFs are organized, trained, and equipped to perform forward-presence, crisis-response, and full-scale combat missions. MAGTFs are a general-purpose air-ground-logistics forces that can be tailored to the requirements of a specific situation.

MAGTF

Structure

While uniquely task-organized for specific missions, all MAGTFs share certain characteristics in their organization. The structure of the MAGTF determines what its capabilities and limitations are and what types of missions it can undertake.

How A

MAGTF Operates

Whether Marines are rescuing American citizens from turmoil, providing humanitarian aid to foreign refugees, or fighting a high-intensity war against technologically advanced adversary, they will operate in some form of a MAGTF. Marines routinely organize, train, deploy, and operate as MAGTFs. Tailoring MAGTFs for specific missions through task organization is

standard procedure. As a result, the MAGTF is a cohesive military organization with a well-understood command relationship and operating procedures.

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Marine Air Ground Task Force,

Continued

Organization The following defines the organization of a MAGTF. • Configured to accomplish a specific mission • Commanded by a single commander

• Structured the same regardless of size

Elements The MAGTF always has the following four elements: • Command element (CE)

• Ground combat element (GCE) • Aviation combat element (ACE)

• Combat service support element (CSSE)

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Marine Air Ground Task Force,

Continued

MAGTF Types As a reference for sizing and capability, MAGTFs are categorized into the following five types:

• Marine Expeditionary Force (MEF) • Marine Expeditionary Brigade (MEB)

• Marine Expeditionary Force Forward (MEF Fwd) • Marine Expeditionary Unit (MEU)

• Special Purpose Marine Expeditionary Force (SPMAGTF) Scalability The following table shows how MAGTFs may be deployed.

Continued on next page

MEF

Win Our Nation’s Battles

MEB

Crisis Response

MEF Fwd

Forward Elements of a MEF

MEU (SOC)

Presence and Engagement

SPMAGTF

Specific Mission Orientated

Major Theater War

Smaller-Scale Contingencies

Smaller MEF Presence

Promote Peace and Stability

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Marine Air Ground Task Force,

Continued

Concepts The statutory mission of the MAGTF is to provide the Fleet Marine Force (FMF) with the ability to

• Seize or defend advanced naval bases.

• Conduct land operations in support of naval campaigns. • Perform other duties as directed.

MAGTFs’ Common Characteristics

All MAGTFs share certain common characteristics, regardless of their size or mission, as shown below.

Common characteristics

• Readiness for expeditionary service • Strategic mobility

• Capability for forcible entry • Environmental versatility

• Capability for independent action • Sea air-land coordination

• Logistic strengths and limitations • Flexibility

• Tactical surprise

• Capability with naval, joint, and combined operations • Sea basing

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Command Element

Command Element History

Despite its obvious wartime usefulness, the concept of a separate MAGTF headquarters was abandoned after the Korean War. The new ad hoc policy called for the commander of the Ground Combat Element (GCE) to assume control over the MAGTF. Emphasis was on the ground combat role with the aviation and logistic elements serving in supporting roles. After the Vietnam war, the Marine Corps reemphasized its amphibious mission and reactivated the concept for separate headquarters for MAGTFs as they were formed. Under the more formal system, the MAGTF headquarters became the Command Element (CE).

Command Element

The Command Element (CE) provides the command and control necessary for the effective planning and execution of all military operations. It is normally a permanent headquarters, and also includes units that provide intelligence, communications, and administrative support in general support of the MAGTF.

Responsibility The MAGTF is made up of several distinct combat and CSS elements. It is the Command Element’s (CE) responsibility to synchronize all of the

elements of the MAGTF into an integrated team focused on the single battle. The CE also has to be adaptive to working in a joint or multinational

environment. The Command Element (CE) of a Marine Air Ground Task Force (MAGTF)

• Provides the MAGTF command and control system for ground, air, and Combat Service Support (CSS) forces.

• Facilitates sequencing of additional MAGTFs as necessary because of its modular design.

• Consists of the commander, staff, and surveillance, reconnaissance, and intelligence element.