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NEWS | Sept. 21, 2010

U.S. law plays important role in Afghanistan COIN strategy

By Capt. Anthony Deiss, 196th Maneuver Enhancement Brigade

CAMP PHOEINX, Afghanistan - When it comes to winning the hearts and minds of the people of Afghanistan, the U.S. military’s counterinsurgency strategy, or COIN, is not just about demonstrating security for the Afghans, it’s also about demonstrating the role of U.S. law in protecting them.

To help establish credibility and legitimacy among the Afghans, U.S. law and military lawyers are playing a significant role in illustrating the significance of following law and its fair application in matters where military operations and the civilian world collide.

For Kabul resident Allah Jan, whose vehicle was struck by a passing U.S. military convoy, U.S. Army lawyers here are maintaining credibility among the people by upholding the Foreign Claims Act – a United States federal law enacted in 1942 – that provides compensation to inhabitants of foreign countries for physical injury, death or property damage caused by noncombat activities of U.S. military personnel overseas.

“In Afghanistan, officers from the Judge Advocate Generals Corp and their support staff review and resolve legal claims filed by civilians pursuant to the FCA,” said Lt. Col. Donald McCarty, deputy staff judge advocate, 196th Maneuver Enhancement Brigade of the South Dakota Army National Guard. “It’s the right thing to do, and maintaining our relationship with the Afghans is consistent with COIN operations.”

McCarty, who settled Jan’s claim, is a certified military foreign claims commissioner for the Task Force Rushmore legal office at Camp Phoenix. Task Force Rushmore provides operational guidance and oversight for 11 military bases in Kabul and supports nearly 9,000 service members in the capital region. With this many troops working in Afghanistan’s largest city, accidents are likely to happen.

“When the military is operating in such close proximity with the local people, which is what COIN is all about, you are going to have situations where people or property are inadvertently injured or damaged,” said McCarty of Brookings, S.D. “The U.S. military does everything it can to prevent and mitigate personal injuries and damage to property, however, accidents happen. For this reason, we have laws in place to assist the local population.”

Whether it’s a claim based on a physical injury or damage to personal property such as a home, business, motor vehicle or crops, this system of protection for civilians is nothing new to the military.

“This law was in place long before COIN was a popular word – it was an example of COIN before there was COIN,” said McCarty. “It’s particularly important here with this type of conflict – despite the fact that we might be here in a military context – we try to reach the right outcome when accidents happen.”

To reach this outcome, the military has a system in place to ascertain the facts of an incident. Both U.S. service members and Afghan civilians play a part in establishing the proper evidence to ensure the claim being made is legitimate.

U.S. service members are instructed to stop when involved in an accident. They are trained to render aid, if necessary, leave a claims form, and take pictures if possible. The claims form identifies the service member, their unit, and the date and location of the accident. It also instructs the claimant on what to do and who to contact.

Several conditions must be met for a claim to be considered: the incident must be caused by U.S. military personnel, it cannot be combat related, the claimant is a local national and the claimant is not unfriendly to the U.S., meaning they have no recorded offenses.

The claimant then comes to the nearest claims office where they meet with a FCC representative. With the assistance of an interpreter, the military attorney meets with the claimant, identifies them and discusses what led to the filing of their claim.

Although the U.S. military makes every effort to fairly determine the claims, McCarty said they also need to protect the government from those who seek to abuse the system. On average, about 40 percent of the claims are denied entirely due to insufficient evidence or cause.

“We are constantly trying to improve the claims process, and are now briefing all drivers on this process and explain to them why it’s an important part of this COIN mission,” said McCarty. “We have also created a central repository for incident reports involving U.S. personnel, which may have resulted in physical injury or property damage to a local national.”

It’s this repository that McCarty said improves their accuracy. He said he expects U.S. Forces-Afghanistan will ultimately order all subordinate units in theater to submit incident reports and witness statements to the database in any circumstances where service members are unable to stop because of safety or mission requirements. In the end, all FCCs in theater will have access to the database to determine whether claims submitted without a claims form are valid or fraudulent, based in part by the files in the database.

“Without having a reliable process in place, we were arbitrarily paying or denying claims based primarily on our judgment of their credibility,” said McCarty. “That’s not what we want to do.”

Although the military is constantly trying to improve the process, some claims are extremely difficult to adjudicate given the combat environment.

“Many times we will have civilians who make claims, but they have no documentation for the incident in question – no eyewitnesses, no claims form or they have very few medical records to confirm the extent of their injuries,” said McCarty.

“Oftentimes the claimants are illiterate and extremely poor,” he continued. “Under these circumstances it’s nearly impossible for me to individually determine the validity of the claim or the extent of their damages or injuries, and we can’t legally process the file without evidence to confirm their claim.”

Therefore, the FCCs rely heavily on their ability to speak with the troops involved in an incident along with any other military personnel who can help determine the series of events which led to the claim.

“When we are able to speak with the troops involved, we get a pretty good feeling about what took place,” said McCarty.

As members of the National Guard, the Task Force Rushmore legal office has a diverse staff with a wide variety of civilian skills that contribute to the COIN mission. Master Sgt. Steven Weiler works as an insurance adjuster back in Sioux Falls, S.D., and as the pay agent for claims, he provides the legal office with a unique ability to reasonably determine compensation amounts.

“Although every case is different, between the two of us, we can access things pretty quickly,” said McCarty, who has practiced civil law for 14 years as an attorney back in South Dakota.

Additionally, in situations where there may be questions about the extent of injury or amount of damage, McCarty will attempt to locate a subject matter expert within the military to help.

In a recent case, a claim was submitted by an Afghan who was struck by a vehicle driven by U.S. forces. The man complained of headaches and exhibited some odd symptoms when the FCC met with him. Since there was no question that the accident happened and the symptoms observed by McCarty and his staff gave them concern, they had a team of medical personnel examine the claimant. Based on their examination, they were able to determine the true extent of the man’s injuries and refer him to a local medical expert in Kabul.

“It would have been simple for us to pay the man for the damage caused and send him on his way; however, that’s not what the U.S. military does,” said McCarty. “We got him the additional medical help he needed, and hopefully the man, along with his family and friends, see how we are helping the people.”

Conversely, in the same week, the legal office denied a claim filed by a local national who happened to be a member of President Karzi’s personal security team.

“We denied the claim because the accident was his fault and he was not happy,” said McCarty.

McCarty emphasizes that the most important aspect of this process is not the money, but to set an example that the U.S. military follows the law to demonstrate that decisions are not arbitrarily made or based on whom you know.

“While this process is not perfect, I hope it gives us legitimacy in the eyes of the local population,” he added.

While no amount of money will completely atone for the hardships caused to a civilian involved in an accident, the U.S. military is doing what it can to compensate the Afghan people and demonstrate they are here to help protect them by the just application of law – a COIN strategy that will continue to prevail.

“It’s clear to me this process makes a difference to the Afghans we see,” said McCarty. “They understand that we have established a law for their benefit and we intend to apply it fairly…and in the long run, I think that does have a positive impact.”