Thoughts for Judge Advocates in Challenging Times

Originally Published in Just Security Here

By Calvin Lederer, John Ewers, Eugene Fidell, and Steven Lepper 

The Former JAGs Working Group

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The Former JAGs Working Group is comprised of several dozen former judge advocates from all the Armed Services and components ranging from junior officers to admirals and generals. Perceiving that the Nation’s senior military officers are increasingly confronted with orders and decisions that challenge their oath to support and defend the Constitution, we recently released Legal Foundations of Honorable Military Service,¹ a set of principles directed primarily to senior officers such as the Combatant Commanders and the members of the Joint Chiefs of Staff. 

Members of the Working Group have previously examined the various professional and ethical obligations implicated by this Administration’s unprecedented use of the Armed Services.² As attorneys who have served as counsel and advisors to commanders and service members at all levels in peace and in war, we understand the judge advocate’s essential role in advising and providing counsel to help ensure that commanders, staffs, and the personnel who actively engage in military operations function within the bounds of the law. 

Joint and Service legal support doctrine defines how judge advocates function and how they are organized,³ professional responsibility rules establish the ethical floor for legal practice,⁴ and the Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps provide broad guidance.⁵ That guidance, though extensive, may not directly meet 1

the needs of judge advocates who face increasingly novel and complex issues in their real-time engagement with commanders and others they assist. Accordingly, we offer some broad principles to guide judge advocates in daily practice and particularly in deployed operations during these challenging times. They are the product of our experience and the legacy of our past leaders and mentors. 

Before considering the principles that follow, we recommend reviewing Legal Foundations of Honorable Military Service. The principles set out there reflect how we believe the law should guide commanders. 

Principles to Guide Judge Advocates 

1. Drive to a desired and desirable outcome that enables mission execution and is consistent with the Constitution, law, and policy. 

Among judge advocates’ greatest strengths are your understanding of the military mission and your focus on legal advice that supports and enables legally executable operations. You must relentlessly work to find a lawful way to enable mission success; you are bound always to provide an accurate and honest appraisal of applicable law even if it may constrain operations. While you must strive to support your commander’s stated objective, you must also be willing to question whether that outcome is the one that best supports the overall mission and is consistent with the law and the broader interests of the Service, the Constitution, and the Nation.⁶ That analysis will involve judge advocates’ roles as officers, counselors, and legal advisors; and demand the steady application of your military and legal expertise.⁷ 

2. Provide independent, dispassionate, and candid advice that reflects your best understanding of the law applied to the facts presented. 

Judge advocates must understand the mission, its context including operational environment and capabilities, and the specific task at hand. Legal advice must be precise, understandable, correct, and within the reasonable construction of existing law. Do not shy away from providing non-legal advice based on policy and operational considerations within the bounds of your expertise. Clearly and proactively distinguish such counsel, when offered, from strictly legal advice. 

As advisors to commanders, judge advocates are required by the rules of professional conduct to “exercise independent professional judgment and render candid advice.”⁸ The ability of judge advocates to give independent legal advice is also mandated and protected by statute.⁹ 

When time and circumstances permit, and particularly when confronting challenges to attorney and military professional ethics,¹⁰judge advocates should seek the advice and counsel of supervisory judge advocates and mentors. Regardless, you must act deliberately and decisively when senior counsel are unavailable and prompt action is imperative. 

Senior judge advocates should encourage and support their subordinates. In all cases, legal advice is subject to guidance and direction from higher-level counsel in the “Article 6” chain up to and including the Judge Advocates General, the Staff Judge Advocate to the Commandant of the Marine Corps, and the General Counsel of the Military Departments and the Department of Defense (and Homeland Security for the Coast Guard); and in the “operational” chain up to and including the DoD General Counsel, Legal Counsel to the Chairman of the Joint Chiefs of Staff, and the staff judge advocates to the combatant commanders. Judge Advocates should always seek primary source legal guidance to support their analysis. Where your legal opinion differs from superior guidance, you should provide your opinion while acknowledging how and why it differs from higher headquarters legal advice. You should also describe the legal risks associated with each advised course of action. 

3. Understand and communicate all legal risks necessary to accomplish the mission without placing people or the Service in legal jeopardy. Remember that the decision maker, not the judge advocate, makes decisions after understanding all relevant and likely risks. 

Operational success may hinge on legal advice that approaches the outer permissible limits of existing law. These are circumstances when consultation with more senior judge advocates is desirable. Experienced lawyers know that the text of law and regulations often does not provide definitive answers to legal questions. In such cases, they use their best legal judgment and provide their best assessment of legal risk. When offering legal advice, define with particularity the nature, likelihood, and significance of all associated legal risks and, ideally, identify how such risks might be mitigated. 

4. Assist the command in planning and executing missions that rely on practical rules of engagement and comply with the law. 

Disciplined operations rely on a ready force, a clearly defined mission, and confidence in the chain of command and the mission’s purpose and legitimacy. The judge advocate plays a critical role in helping the command develop rules of engagement that are tailored to the mission, consistent with higher-level guidance, and compliant with the law. 

The judge advocate should be prepared to address the legitimacy of orders issued by higher authority and the command itself – tasks which require the judge advocate to understand and advise when and why orders may be unlawful, despite the general presumption of lawfulness. Remember that the decision to follow or disobey any order resides with its recipients and that they obey or disobey at their own peril. Remember also that your client is the United States and not any individual. When necessary, direct service members to individual counsel. 

5. Remain at all times faithful to your oath to support and defend the Constitution, the rule of law, your obligations as an officer and an attorney, and your conscience. 

As commissioned officers, judge advocates must understand that the law requires “exemplary conduct,” and, in particular, that they must be “good example[s] of virtue, honor, patriotism, and subordination ... [and must] take all necessary and proper measures, under the laws, regulations, and customs of the [service], to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under [their] command or charge.”¹¹ As attorneys, the preamble of the professional responsibility rules also tells you to follow your “moral judgment guided by the basic principles underlying the rules,” and that moral judgments should be “guided by personal conscience and the approbation of professional peers.” 

6. Establish and work within “red lines” and act when they are crossed. 

Implicit in the preceding principles is the fundamental premise that each judge advocate must understand and adhere to the professional obligations imposed by their oaths as officers and as attorneys. As officers, you must obey lawful and disobey unlawful orders. As attorneys, you must “exercise independent professional judgment and render candid advice.” This means you are obliged to communicate legal guidance issued by lawyers senior to you and reinforce legal guidance that is accurate, ethical, and lawful; you are equally bound to inform your commanders and voice your disagreement when, after addressing the difference of opinion with senior counsel as time and circumstances allow, you are certain that your legal assessment diverges significantly from the advice issued by higher headquarters.¹² 

Divergence between the legal opinions rendered by judge advocates and those rendered by senior civilian attorneys is not unusual. Minor differences may be noted without necessarily recommending different courses of action. Substantial differences require more than just noting the disagreement. The judge advocate must formally document any significant difference of 

opinion and inform and attempt to reconcile conflicting views with supervisory attorneys. You must also inform your commander, not only of the significance of the disagreement but also of the legal risk as well as the ethical and moral risks associated with each view. In defining legal risk, you should remind commanders of their duty to disobey unlawful orders, even if those orders are supported by legal opinions from above if those opinions are facially suspect. It may also prove useful and even obligatory to advise commanders (and supervisory attorneys) of potential reporting requirements applicable to all DOD personnel (including yourself).¹³ Finally, to preserve your professional and personal integrity and credibility in extreme cases and in the absence of other recourse, you should consider other available avenues to report unlawful orders issued contrary to your legal advice. ¹⁴ 

Conclusion 

The Department of Defense long ago adopted the Law of Armed Conflict as an essential element of our national security and entrusted the judge advocate community with the responsibility to help ensure compliance. Commanders and other leaders have also relied on their judge advocates to understand and operate within the Rule of Law. Now more than ever, and particularly with the Nation at war, the provision of candid, independent legal advice to our senior leaders is critical to the success of our military and our Nation.