Bar News - May 23, 2008
Why I am Serving in Iraq
By: J.E. Fender
Sandstorms are a part of life in Iraq. As I mention in the article, dust, noise and diesel fumes are a part of life for military personnel in Iraq. In many ways my legal practice here is Sisyphean, but in the few moments I allow myself to look out over the countryside from a balcony on the third deck of the Al Faw Palace, I reflect that the area between the Tigris and the Euphrates Rivers, this Mesopotamia, truly was the place where ancient people gathered and began to coalesce into clans, then tribes, then cultures, then societies – and I have hope that something good for civilization as we cherish it will flourish here, nurtured by all the blood and treasure we have lavished upon this ancient land.
“The greatest thing in this world is not so much where we stand as in what direction we are heading.”
General David Pataeus and J.E. Fender in Iraq.
Johann Wolfgang von Goethe
Since the autumn of 2003 I have been volunteering for a detail to Iraq, and the detail was approved in September 2007. Basically, I would temporarily leave my full-time position as a civilian attorney within the Navy’s Office of the General Counsel assigned as the Legal Counsel for the Portsmouth Naval Shipyard for an eight months’ detail to a Navy Judge Advocate General billet, which, in turn, would “individually augment” a billet normally filled by a U.S. Army Judge Advocate within the Office of the Staff Judge Advocate for Multinational Force-Iraq (MNF-I SJA). The training “pipeline” began in January 2008 with a four-day “Iraq Pre-Deployment Operational Law Course at the Naval Justice School, Newport, Rhode Island, and from there I moved to the Navy Individual Augmentee Combat Training (NIACT) program, first at Norfolk, Virginia, then Camp McCrady, South Carolina, the South Carolina Army National Guard training base actually located aboard Fort Jackson, South Carolina.
My NIACT class began with 337 officers and enlisted personnel—and one lone civilian; three weeks of physically demanding training in the pine woods and red clay of Fort Jackson winnowed us down to below 300. Field exercises were not cancelled because of minor inconveniences such as below freezing temperatures, sleet, cold rain, and mud up to our boot tops. We were assured of hot meals in the DFAC (dining facility) for breakfast and whatever time we returned from training exercises in the late evening, but most noon meals consisted of MREs (Meals Ready to Eat)—the cold variety, not the kind with an internal heating element. I bet you can’t wait to try the “boneless pork rib with added caramel coloring” eaten out of an olive drab plastic sleeve with a plastic spoon. Or perhaps your tastes run more to “cheese and macaroni Mexican style” followed by a dessert of grape jam spread on a saltine cracker, washed down by sips of water from your Camelback—all consumed while wrapped in your poncho amidst a downpour. Did I mention that you are wearing 50 pounds of Interceptor Ballistic Armor (IBA), a ten pound Kevlar helmet and carrying a ten pound M16-A3 rifle?
Some of the augmentees went on to additional training after graduating from NIACT, but 185 of us boarded an Omni Air International DC-10 on 11 February 2008 for a flight to Kuwait. After arrival in Kuwait many of my fellow augmentees went on to assignments in Qatar, Afghanistan, Djibouti and other places where they were needed. The group destined for Iraq, now down to 80, spent another nine days for acclimatization and additional training in the Kuwaiti desert before we were strapped into a USAF C-17 Globemaster III and flown to Baghdad. The evasive nighttime approach in a cargo aircraft weighing 275 tons and a short-field landing into a blacked-out airfield with a high-speed turn off the active runway will beat any roller-coaster ride you’ll ever have.
There were three legal offices to which I could have been assigned:
My preference would have been LAOTF for the opportunity to work directly with Iraqi lawyers, but of course I had volunteered for duty in Iraq with the mutual understanding I would go wherever my legal skills were needed the most.
- Multinational Force-Iraq, Staff Judge Advocate – the Judge Advocate for ALL legal matters in the Iraq Theater of Operations (ITO);
- Task Force 134 – the largest “legal office” in the ITO, responsible for detainee operations; or
- The Law and Order Task Force (LAOTF) – charged with building essential Iraqi capacity for independent, evidence-based and transparent investigation and trial of crimes./li>
That turned out to be the Administrative Law Division of MNF-I SJA located on the third deck of the Al Faw Palace aboard the Victory Base Complex (VBC) adjacent to the Baghdad International Airport where I specialize in fiscal and contract law. The work is challenging, VERY fast-paced, and I believe quite important to the missions a “coalition of the willing”, to quote former U.S. Secretary of State Colin L. Powell and others, has undertaken in Iraq.
Don’t expect me to engage in any discussion of why American military and diplomatic personnel are in Iraq. That is well above my pay grade, and all accusations and recriminations about how the United States came to be in Iraq are current abstractions upon which academics of various persuasions will pander, ponder and pontificate for many, many years. I volunteered to come to Iraq “to make a difference” a positive difference, no matter how small it may be to the people of this region. I believe I’m doing that by focusing on the areas where my lawyering skills can be put to good use.
I bring 27 plus years of legal practice within the Department of Defense and the Department of the Navy, and counting the business experience gained during my active duty military service I can focus over 40 years of practical knowledge upon the job at hand. I encourage the attorneys who work for me at the Portsmouth Naval Shipyard to be well-rounded generalists in the legal practice of the Navy’s Office of the General Counsel—to be prepared to resolve any legal issue presented rather than becoming specialists in areas such as civilian personnel law, environmental law, contract law, intellectual property, litigation, ethics, etc. My experiences and training made me a productive member of the MNF-I SJA legal team from the very first day.
United States Government fiscal law is not a specialty commonly found in private practice, and while some private practitioners may consider fiscal law esoteric or even dull, I find it absolutely fascinating. Everything in federal fiscal law flows from our Constitution.
Article I, § 8, grants Congress the power to “…lay and collect Taxes, Duties, Imports, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States…”
Article I, § 9, provides that “[N]o Money shall be drawn from the Treasury but in Consequence of an Appropriation made by Law.”
Over 40 years ago when I was a special agent of the USAF Office of Special Investigations investigating fraud in procurement matters in the then Republic of Viet Nam I worked under the premise that Public Monies were to be touched with the utmost scrupulousness. The intervening years have reinforced my understanding that monies our Congress appropriates from the Public Purse are to be spent for the proper purposes Congress intended—and that is my job as the Fiscal Law Attorney for MNF-I SJA.
Current U.S. Army doctrine requires a legal review of requests for funds to ensure the funds will be spent for the “proper purposes” intended by Congress. In my current job I function as a U.S. Army JAG attorney, so I review expenditures of monies proposed by various military organizations in the ITO. With the exception of “centrally procured” items such as tanks, helicopters, Mine-Resistant Ambush Protected (MRAP) vehicles, arms, munitions, etc. every Purchase Request and Commitment or Military Interdepartmental Purchase Request with a proposed cost greater than $10,000 has to come to me for review. As you may well imagine I review a lot of requests for funds—enough to keep me very busy for a minimum of 85 hours per week.
No, I don’t decide whether or not a particular request is funded. I review each individual request, which may be as short as two pages, or consist of multiple hundreds of pages, to determine:
There are almost one hundred different appropriations or “pots or colors of money” available to the Department of Defense from which disbursements may be made. Should the money for the proposed purchase come from the Operations and Maintenance, Army (OMA) appropriation, the Commander’s Emergency Response Program (CERP), the Iraqi Security Forces Fund (ISFF), the military construction (MILCON) appropriation or any other of the various appropriations with which I must be familiar? I may not personally agree with a particular request for expenditure of funds, but so long as the request is for a proper purpose, the funds are available in the necessary appropriation, and the request is sufficiently justified I do not substitute my judgment for that of the requestor and I “validate” the requirement with a legal memorandum.
- Is the request for a “proper purpose” as statutorily required?
- Is the right “color of money” being requested, and most particularly;
- Is the request sufficiently justified by the documents accompanying the requests?
Conversely, if the request is for a “requirement” such as the lease of a Non-Tactical Vehicle (NTV – any vehicle that is not a tank, armored personnel carrier, or a Hummvee—an armored SUV for example) solely because the requestor is a senior officer, I don’t mind returning the “requirement” to the originator with a curt note that the requirement cannot be validated as submitted. I also see a lot of requests for requirements that are really needed in-theater, but the justifications are poorly written. My years of experience would be for naught and I would be remiss in my responsibilities to the generation that will follow mine if I did not pass along the hard-won knowledge needed to function effectively in our military forces, so I’m happy to explain how to define a requirement properly and justify it adequately. I emphasize to the following generation that every expenditure of Taxpayers’ Monies (I use this term or “the Public Purse” in preference to terms such as “federal funds”) is subject to audit, and even an appropriate expenditure will be criticized, perhaps censured if the validity of the expenditure is not readily evident on its face.
But I don’t just sit in my dusty cubicle in the Al Faw Palace (there are three constants aboard the VBC: dust, noise and diesel fumes) and review funding requests. If an issue touches money, particularly Taxpayers’ Monies, I’m involved. I serve as legal advisor to three formal committees:
- IBIZ – Iraqi Business Industrial Zone: an effort to develop the moribund entrepreneurial spirit of the Iraqi people;
- The Iraqi Scrap Program (I’m trying to get the name changed to the “Iraqi Recycling Program”) since this program involves collecting all the ferrous and non-ferrous metals littering the landscape and re-smelting it;
- ITN – the Iraqi Transportation Network: an effort to develop an Iraqi-owned trucking network. We’re helping the network by awarding sole-source contracts for the transport of certain supplies, and the sheiks in Al Anbar Province are beginning to see the financial benefits accruing to the people in the Western Desert. I’ll work myself out of a job once “proof of principle” has occurred and trucks are on the road routinely.
However, as one task winds down another awaits. MNF-I SJA Army Colonel Mark Martins has assigned me to a committee to work out I-CERP issues. The Commander’s Emergency Response Program I mentioned earlier is directly funded by the Congress, and enables local commanders to respond to urgent humanitarian and reconstruction requirements. Responding to Congressional and media criticisms that it is not doing enough to pay for reconstruction projects that benefit its citizens, the Government of Iraq recently established the Iraqi CERP (I-CERP) with an initial $270 million line of credit. The money comes, interestingly, not from recent petroleum sales, but from an account established under a UN Security Council Resolution to hold funds from the UN sponsored “Oil for Food” Program. In my practice “show me the money” is not just a catch-phrase from the 1996 movie Jerry Maguire since I have to identify the origins of every source of funds made available to Multinational Force-Iraq.
In the case of I-CERP the Government of Iraq wants American field commanders to disburse and account for the Iraqi-sourced money in the same way that American field commanders currently disburse and account for American Taxpayers’ CERP monies. The Government of Iraq wants American field commanders to handle this financial chore because it does not have Iraqi citizens trained to plan, execute and pay for “bricks and mortar” humanitarian projects—nor does the Government of Iraq have a banking system sophisticated and accountable enough to handle electronic funds transfers on a routine basis. The majority of day-to-day financial transactions in Iraq are conducted by in-hand exchanges of currency (for example, Iraqi soldiers and civil servants are paid in-hand their salaries in Iraqi Dinars)—with all the implications of theft, graft and misappropriation inherent in such exchanges.
I have agreed with the concept of American field commanders handling the I-CERP monies—but only with the caveat that we must simultaneously train Iraqis to administer these funds, and continue to urge the Government of Iraq to establish the banking networks a modern nation must have to manage and account for its finances.
My law practice with MNF-I SJA is extremely rewarding, and I’m working for the same goals I believe the majority of Iraqi citizens want:
The odds of achieving these goals are daunting. The peoples of this region are in many ways still hostage to tribal feudalism, rent by a religious schism already older than a millennium, and alienated by a lengthy history of despotic rule.
- An Iraq with a pluralistic representative government under the Rule of Law that will respect the rights of all Iraqis.
- An Iraq that is at peace with its neighbors.
- An Iraq with security forces that can maintain domestic order, secure its borders and deny Iraq as a safe haven for terrorists.
- An Iraq that is an ally in the generational challenges of countering the scourge of radical Islam and insurgency.
I began writing these remarks on 18 April 2008, coincidentally the 25th anniversary of the bombing of the United States Embassy in Beirut, Lebanon. Sixty-three people were murdered by the now common trademark tool of the psychopaths who have hijacked a major religion—the suicide bomber. The problems we face in Iraq are compounded by a violent jihadist network that will not allow us to remain at peace, when means we must remain engaged in asymmetrical conflict to avoid even greater dangers to our country. As the Cheshire cat advised a mystified Alice in Alice’s Adventures in Wonderland, “I you don’t know where you’re going, any road will get you there.” I believe we Americans understand the very real risks we face in the clash of ideologies and innately acknowledge the compass course we must follow. I believe the Iraqi people should achieve their goals, and I’m glad to be a very small part of the efforts that will secure them.