Consistency and Equality: A Framework for Analyzing the 'Combat Activities Exclusion' of the Foreign Claims Act

• Author: Michael D. Jones
• Position: Judge Advocate, U.S. Army
• Pages: 144-181

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∗

I. Introduction

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

exclusion.

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.

5 Id.

6 See ACLU Claims Database, supra note 3.

7 See id.

810 U.S.C. § 2734 (2006).

9 Id.

10 Author’s Personal Experience, supra note 2.