144 MILITARY LAW REVIEW [Vol. 204
CONSISTENCY AND EQUALITY:
A FRAMEWORK FOR ANALYZING THE “COMBAT
ACTIVITIES EXCLUSION” OF THE FOREIGN CLAIMS ACT
MAJOR MICHAEL D. JONES∗
You are a member of a three-person Foreign Claims Commission
(FCC) responsible for investigating and reviewing foreign claims
submitted in the Multinational Division Central-South area of operations.
As you begin reviewing the large stack of recently-submitted foreign
claims, you come across a claim related to an incident that occurred in
the vicinity of Masayyib, Iraq.1 The claimant alleges that his brother and
sister-in-law were killed, and two other family members were injured, by
U.S. Soldiers while driving near Masayyib. The claims packet includes
numerous documents including medical treatment records, statements
from the claimant, a claims card with the unit’s contact information, and
photographs of the bodies. The claimant demands payment in the sum of
$30,000. A review of available statements and associated reports
establishes that a force escalation (FE) incident had occurred at a traffic
control point southwest of Musayyib on Route Wichita. According to
the report and statements from members of the unit concerned, the traffic
control point was properly established under the unit standard operating
procedures. Warning signs were in place and the Soldiers were trained
∗ Judge Advocate, U.S. Army. Presently assigned as Senior Defense Counsel,
Wiesbaden, Germany. LL.M., 2009, The Judge Advocate General’s School, U.S. Army,
Charlottesville, Virginia; J.D., 2005, Florida State University; B.S., 1997, Missouri State
University. Previous assignments include Trial Counsel, V Corps, Germay, 2008;
Administrative Law Attorney, V Corps, Germany, 2007–2008; Chief of Client Services,
Multi-National Corps–Iraq, Iraq, 2006; Chief of Detention Operations, Multi-National
Corps–Iraq, Iraq, 2006; Battery Commander, C Battery 1st Battalion, 19th Field Artillery,
Fort Sill, Oklahoma, 2001–2002; Ammunition Platoon Leader, Service Battery, 1st
Battalion, 6th Field Artillery, Germany, 2000–2001; COLT Platoon Leader, Headquarters
Battery 1st Battalion, 6th Field Artillery, Germany, 1999–2000. Member of the Florida
Bar. This article was submitted in partial completion of the Master of Laws requirements
of the 57th Judge Advocate Officer Graduate Course.
1 This scenario is based on Foreign Claim 05-IF9-T-022–20 (Apr. 2006), available at
http://www.aclu.org/natsec/foia/pdf/Army0366_0370.pdf [hereinafter Foreign Claim 05-
IF9-T-022–20]. The American Civil Liberties Union submitted a Freedom of
Information Act request for “all records relating to the killing of civilians by U.S. forces
in Iraq and Afghanistan since 1 January 2005.” See id. The Department of Defense
responses were organized into a searchable database, which includes Foreign Claims,
Army Regulation 15-6 investigations, and records of trial. See id.
2010] COMBAT EXCLUSION & FOREIGN CLAIMS ACT 145
on FE procedures. The Soldiers manning the traffic control point
followed established procedures when a civilian vehicle approached and
failed to stop. The Soldiers attempted to stop the vehicle using hand-
and-arm signals, verbal commands, warning lights, and warning shots.
When the vehicle continued to approach, the patrol fired at the vehicle
with two M249 Squad Automatic Weapons (SAW). The vehicle was
immediately disabled and rolled to a stop at the side of the road
approximately 150 meters away from the entry of the traffic control
point. The Soldiers also reported that the driver appeared to be slumped
over the steering wheel of the vehicle and did not appear to be moving.
For some inexplicable reason, the Soldiers proceeded to re-engage the
vehicle firing approximately 200 additional rounds into the car. The two
front passengers, Mr. A and Mrs. A died of gunshot injuries at the scene.
Two of the rear passengers, Mr. B and Mrs. B, were severely wounded.
The Soldiers immediately transported Mr. B and Mrs. B from the traffic
control point to the nearest hospital. During the convoy to the hospital,
the Soldiers accidentally crashed into a white sedan parked on the side of
the road, severely damaging the passenger door (the sedan owner also
filed a claim).
As the FCC tasked with adjudicating this claim, you immediately
recognize that portions of this claim may be payable, while other
portions of this claim will likely be excluded as combat under the combat
exclusion of the Foreign Claims Act. After looking for guidance, you
realize that while Army Regulations provide some examples of combat
and non-combat activities, there is no methodology you can use to
reliably and accurately apply the combat exclusion. In fact, varying
interpretations of the applicable authority could result in significantly
different results when this claim is adjudicated. You recognize that a
framework for analyzing claims involving combat is necessary to ensure
that the combat exclusion is being applied with consistency and equality
throughout the theater of operations.
Unfortunately, claims such as this are all too common in Iraq and
Afghanistan.2 Claims resulting from FE incidents at traffic control points
2 This observation is based on the author’s personal experiences as the Chief of Client
Services for the Multi-National Corps–Iraq, Office of the Staff Judge Advocate (OSJA),
at Camp Victory, Iraq, in 2006 [hereinafter Author’s Personal Experience]. As the Chief
of Client Services, the author was responsible for adjudicating foreign claims as part of a
three member Foreign Claims Commission.
146 MILITARY LAW REVIEW [Vol. 204
and during convoy operations are especially frequent.3 Soldiers are often
placed in difficult situations where they must quickly decide whether or
not to engage a target that may or may not be hostile. The resulting
claims are also difficult to analyze and adjudicate.4 The facts are often
confusing, witness statements are generally scarce, evidence is limited,
and the desire to compensate seemingly innocent claimants is
overwhelming.5 A review of claims submitted in Iraq that involve
similar facts to the ones described above reveal that FCCs have provided
compensation to claimants in some cases.6 However, numerous other
FCCs have denied claims that contain almost the same factual
circumstances.7 This disparity reveals a problem with the way FCCs
analyze and adjudicate foreign claims.
The Foreign Claims Act’s (FCA) stated purpose is to promote and
maintain friendly relations through the prompt settlement of meritorious
claims.8 However, the FCA specifically bars payment of claims that
result directly or indirectly from acts of the Armed Forces of the United
States in combat.9 This provision is commonly referred to as the
“combat exclusion,” and it continues to be a source of confusion and
controversy for many deployed judge advocates.10 In order to have an
effective foreign claims program, FCCs must analyze claims in a way
that results in consistent and accurate application of the combat
This article proposes a framework for analyzing claims that may
involve the combat exclusion to achieve an effective foreign claims
program. The article first examines the FCA’s provisions on the combat
exclusion. Next, it addresses how the combat exclusion is applied by
FCCs in Iraq and Afghanistan, identifying problems that result from the
way that the combat exclusion is currently applied. Next, it examines the
legal authority relating to the combat exclusion. Finally, it proposes a
model framework to assist with the analysis of foreign claims that
3 See Documents received from the Department of the Defense in response to ACLU
Freedom of Information Act Request, http://www.aclu.org/natsec/foia/log.html (last
visited Dec. 21, 2008) [hereinafter ACLU Claims Database].
4 Author’s Personal Experience, supra note 2.
6 See ACLU Claims Database, supra note 3.
7 See id.
810 U.S.C. § 2734 (2006).
10 Author’s Personal Experience, supra note 2.