Our legal office, Allied Command Transformation Staff Element Europe (ACT SEE), was originally located in a quiet, almost forgotten wing of the Live Oak building, what we affectionately call “the green container.” Placed in the middle of the 100 Area, the secure portion of the Supreme Headquarters Allied Powers Europe (SHAPE) military base, it stands in stark relief to the outmoded yet imposing Allied Command Operations building to its south, and to the brand new Special Operations building to its east. Small and indistinctive on its own, a large piece of the Berlin Wall stands in front of the entrance, drawing attention to the building itself, and providing a clue to its history.
Rewind to the end of the Cold War, Berlin. Khrushchev was threatening the continued presence of the Allies in the city, and tensions between the Soviets and the West were high. NATO was not immediately involved in the crisis over the status of Berlin in the late 50’s, in part because the three Western Allies preferred to deal with the situation themselves, and had established the mechanisms to do so. Their military contingency planning group, LIVE OAK, was established in Paris in April 1959, and tasked with formulating responses to possible Soviet restrictions on Allied access to Berlin. General Norstad, NATO’s then Supreme Allied Commander Europe (SACEUR), was the first “Commander LIVE OAK,” and though the plan provided for various ground and air operations, NATO was not officially involved until 1961 when the crisis was reawakened by Khrushchev’s attempt to test the Kennedy administration. It was during that summer that East German border guards began stringing barbed wire between the east and the west, the first step in constructing what GDR authorities called the Antifaschistischer Schutzwall, what we know as the Berlin Wall.
As tensions escalated, U.S. Secretary of Defense McNamara wrote to President Kennedy, calling all existing military contingency plans for Berlin “deficient.” The United Kingdom and France agreed with his assessment, and in response, U.S. Secretary of State Rusk expressed his support for a NATO military build-up in an attempt to make Allied military might more visible to the increasingly bold Soviets. It was at this point that LIVE OAK was moved from Paris to SHAPE where it remained for the next four decades.
Until German unification on October 3, 1990, the LIVE OAK operation continued to monitor the Berlin situation, adapting the “Plan of Action” to keep up with the volatile political situation. The plans included broad land and naval measures, non-nuclear air operations, expanded non-nuclear ground operations, and the selective use of nuclear weapons to demonstrate the will and ability of the Alliance to use them. Though the Kennedy administration wished to defend Europe solely with conventional sources, Norstad argued that it was “absolutely essential that the Soviets be forced to act and move at all times in full awareness that if they use force they risk general war with nuclear weapons.”* As rumor has it, the LIVE OAK plans were kept for many years in a vault behind the kitchen, just feet from the old ACT SEE offices.
Fast forward to the present day. Our legal offices are now located at the other end of the Live Oak Building, in closer proximity to the other branches of ACT. Wall-sized charts and maps line the hallways, reminding us daily of the current NATO Defense Planning Process and the ongoing efforts to transform NATO in a changing international environment. As lawyers at ACT, we are the odd ducks in the green container without stars on our shoulders or badges on our chests. But the role of the legal advisor in military operations cannot be understated. In a starkly hierarchical environment where rank, power, and politics hold sway, legal reasoning is essential.
From LIVE OAK to transformation, NATO has come a long way. The purpose of the Alliance is no longer “to keep the Americans in, the Russians out, and the Germans down,” as Lord Ismay once stated. Nor is it necessarily “to keep the Americans in charge, the Europeans compliant, and the Brussels bureaucracy busy,”** as accurate as that might sound. My first two months in the green container have been busy and informative, and though NATO’s preeminent adversary was vanquished long ago, security issues remain, and there is plenty of work to be done. Since our office focuses on training and education, we work frequently with the Laws of Armed Conflict and Rules of Engagement. Just last month, three representatives from the Israeli ministry of defense visited our offices to discuss training activities in support of NATO legal advisers, and for the past few weeks, the senior legal adviser at our office has been in Riga, Latvia, providing legal advice for “Exercise Steadfast Pinnacle.”
And there are other issues as well. In a briefing last week, we learned about “AWACS,” NATO’s first integrated, multi-national flying unit that provides airborne surveillance, command and control. As one air force representative commented, “the airplane is basically an antenna farm – it gets a lot of information which needs to be turned into actionable data.” The technicalities “”flew” over our heads, but the legal airspace issues remain. As has been repeated time and again, a “capability” is the ability to achieve an objective in a military operation through technology, people, and procedures. Law is an essential part of that process.