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Military

Chapter 1

Role of the Judge Advocate


 

CONTENTS

THE JUDGE ADVOCATE GENERAL'S CORPS' MISSION

PERFORMING TRADITIONAL ROLES

Mission

Service
Legitimacy
The Military General Practitioner
The "Judge" Function
The "Advocate" Function
The "Ethical Adviser" Function
The "Counselor" Function
IN A CHALLENGING NEW ENVIRONMENT
More Missions
Complex Command & Control
International Operations
Fluid Operations
Technological Advancements
CHALLENGES FOR JUDGE ADVOCATES IN THE 21st CENTURY
Mission
Service
Legitimacy
SUMMARY

1.1    THE JUDGE ADVOCATE GENERAL'S CORPS MISSION

    The mission of the Judge Advocate General's Corps (JAGC) is to provide professional legal support at all echelons of command throughout the range of military operations. This support includes Operational Law and the six Core Legal Disciplines, which support command and control, sustainment, and personnel service support.

    Throughout the history of the United States Army, the JAGC has performed this mission by supporting the Army mission; providing quality legal services to commanders, staffs, personnel, and family members; and promoting the legitimacy of the Army both in American society and throughout the world.

    As the 21st Century dawns, the JAGC transitions along with the Army. The JAGC will capitalize on new information technologies, strengthen its technical support network, obtain new warfighting capabilities, master the legal issues affecting operations, and develop the Soldier-Lawyer-Leaders who will perform the JAGC's traditional roles in a challenging, new environment.

1.2    PERFORMING TRADITIONAL ROLES

Traditionally, judge advocates have mastered many fields of law, and performed several legal roles (judge, advocate, and counselor), all in support of three fundamental objectives: mission, service, and legitimacy.

1.2.1    Mission

    "Mission" means protecting and promoting command authority, preserving Army resources, and ensuring fair military systems, especially the military justice system. Judge advocates promote command authority in several ways. They participate in the key military decision-making processes, becoming involved early to identify and resolve legal issues before they become command problems. They create efficiencies and improve unit effectiveness by leveraging legal solutions to accomplish Army missions in lawful ways. They add value to the organization as soldiers and individuals, applying their skills and energy to solve legal and non-legal problems. They administer the military justice system, which promotes the discipline that makes units effective. They provide advice on other Army procedures that promote organizational discipline, such as investigations, reports of survey, standards of conduct, and environmental compliance.

1.2.2    Service

"Service" means meeting the legal needs of commanders, staffs, personnel, and family members. Judge advocates provide these clients legal advice based upon a thorough understanding of the situation, an analysis of lawful alternatives, and their individual professional judgment. They enhance C2, sustainment, and support operations by providing operational law advice and legal services in all core legal disciplines (military justice, international law, administrative law, civil law, claims, and legal assistance) during peacetime, war, and operations other than war.

1.2.3    Legitimacy

"Legitimacy" means engendering public respect and support, promoting justice and ethical behavior. Judge advocates must be "competent, confident, caring, and courageous . . . grounded in values, and totally integrated into the Army."6 They enhance the Army's legitimacy by integrating society's values into Army programs, operations, and decision-making processes.

    To promote legitimacy, judge advocates must be well-grounded in Army and constitutional values. Frequently, there is tension between the military mission and civilian control that the judge advocate must resolve for the command. This tension existed in America before the Revolutionary War...

Prior to his assumption of command of the Continental Army, Washington had been deeply concerned with the administration of military justice. As early as 1756, when Washington was engaged in the French and Indian war, he protested the enactment of the "act governing mutiny and desertion" which required a commander to obtain permission from the Governor of Virginia to hold a general court-martial and to obtain a warrant from Williamsburg, the colonial capital, before execution of sentence. It was his opinion that if good discipline was to be maintained, justice had to be meted out expeditiously.7

...and continues to modern times.

The differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise . . . . [T]he military constitutes a specialized community governed by a separate discipline from that of the civilian, and . . . the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . .

United States Supreme Court
Parker v. Levy8

    Judge advocates are able to reconcile these tensions for the command because of their status and specialized training as soldiers and lawyers. They serve as soldiers in every operational contingency; therefore, they appreciate Army values - Loyalty, Duty, Respect, Selfless Service, Honor, Integrity, and Personal Courage.9 They are members of the legal profession; therefore, they appreciate American constitutional values, including civilian control.

    Finally, to promote legitimacy, judge advocates must help the Army conduct operations in ways that will win public support.

The responsibility for the conduct and use of military forces is derived from the people and the government. The Army commits forces only after appropriate direction from the National Command Authorities (NCA). In the end, the people will pass judgment on the appropriateness of the conduct and use of military operations. Their values and expectations must be met..

United States Army
Field Manual 100-5, Operations10

1.2.4    The Military General Practitioner

    Judge advocates must not only display professional values and well-honed skills as a judge, advocate, and counselor, but also have broad legal expertise. During the Spanish-American War, then Lieutenant Colonel Enoch Crowder served in the Philippines, where he worked on the arrangement for the Spanish surrender, headed the Board of Claims, served on the Philippine Supreme Court, and drafted the Philippine Criminal Code.11 During World War II, then Colonel Thomas Green assisted in drafting martial law documents and served as the executive to the Military Governor in Hawaii.

"In a deployment, they've got to be ready to shift into 4-5 functional areas on any given day. They'll touch crim. law, operational law, fiscal law, foreign claims, personnel law, ethics... all in one day."

--LTC Michele M. Miller12

    Today, deploying judge advocates must be capable of providing comprehensive legal advice and services in all core legal disciplines (military justice, international law, administrative law, civil law, claims, and legal assistance) and, in addition, have general knowledge of legal sub-disciplines (e.g., contract law, fiscal law, environmental law, or intelligence activities law).

    When practicing these core legal disciplines, a judge advocate must be an effective lawyer, which includes the roles of "judge" and "advocate," ethical advisor, and counselor. Recognizing the applicable function is of the utmost importance; the function must be appropriate to the task at hand.

1.2.5    The "Judge" Function

    True to their title, judge advocates perform the function of "judge." They are routinely called upon for opinions or rulings on whether a law is applicable, a legal obligation exists, or a legal right must be respected.

    This function is not limited to military judges and magistrates who participate in courts-martial and other proceedings under the Uniform Code of Military Justice. It applies also to judge advocates rendering legal opinions, serving as legal advisors on official investigations, ruling on whether claims are cognizable, and reviewing the legality of procurement actions. As "judge," the judge advocate does not interpret the law on the basis of personal views or policy preferences, but rather on the basis of a careful reading of the authoritative rule and objective reasoning.

    The judge function demands distinct skills: legal research and interpretation, reconciliation of facially contradictory precedents, and extensive knowledge of which legal authorities have precedence. It requires impartiality, diligence, independence, moral courage, and intimate knowledge of the facts. It requires prudence in refraining from activities that could cast doubt upon impartiality. It requires wisdom, care, sound judgment, and a judicious temperament.13

1.2.6    The "Advocate" Function

    Also true to their title, judge advocates perform the function of "advocate." They are commonly relied upon to make arguments about what a legal rule means or whether it applies, to present evidence, or to persuade.

    Judge advocates frequently perform this function within a structured, adversarial proceeding, in which they prosecute or defend a particular client's interests. The client may be the command or an individual soldier. Advocacy skills may also be needed outside the courtroom: in liaison with environmental compliance agencies, non-governmental organizations or a host nation; or in formulating command policy, as a full understanding often requires the ability to see issues from different points of view.

    Advocacy requires many important skills. These include careful study of substantive rules, applicable procedures, and decision-makers; conducting investigations; interviewing and examining witnesses; formulating theories; and composing arguments. Sometimes advocates use their persuasive skills to seek changes in the law. Ethical performance of the advocate function requires zealousness, but also candor and fairness.14

1.2.7    The "Ethical Adviser" Function

    Judge advocates perform the additional function of advising commanders whether their actions are ethical. This includes appraising conduct in light of laws and regulations governing the conduct of government officials, but also includes consideration of other ethical precepts, including officer ethics and Army values.

1.2.8    The "Counselor" Function

    Judge advocates also perform a "counselor" function in which they advise commanders whether proposed actions, while legal and ethical, are prudent.

    Judge advocates functioning as counselors provide advice early in the decision-making process to enable the command to accomplish missions. They seek to be proactive and to confront problems before the problems confront the command.

    When a judge advocate acts in any of these functions, they identify issues; formulate courses of action and evaluate their strengths, weaknesses, and legal consequences; anticipate potential legal attacks; consider ethical and prudential concerns; provide their personal recommendations to decision-makers; and frequently execute command decisions.

    A variety of skills are required to perform these functions. As a military staff officer, the judge advocate must plan, train, and coordinate, all with an understanding of the Army, its history, and operational art. Judge advocates must work constantly and tirelessly to acquire an intuitive and reasoned grasp of the command's interests and objectives. As a lawyer, the judge advocate must research, analyze, negotiate, and mediate. By combining legal and military knowledge and skills, the judge advocate enhances decision-making processes and contributes to effective, ethical, and lawful mission accomplishment.

1.3    IN A CHALLENGING NEW ENVIRONMENT

    Judge advocates must perform their traditional roles in a challenging, new environment, described by Joint Vision 2010 in this way:

Accelerating rates of change will make the future environment more unpredictable and less stable, presenting our Armed Forces with a wide range of plausible futures. Whatever direction global change ultimately takes, it will affect how we think about and conduct joint and multinational operations in the 21st century. How we respond to dynamic changes concerning potential adversaries, technological advances and their implications, and the emerging importance for information superiority will dramatically impact how well our Armed Forces can perform its duties in 2010.15

    The new environment will consist of more missions, complex command and control relationships, international operations, fluid operations, and technological advancements.

1.3.1    More Missions

    Missions are increasing in number and type. "The US military will be called upon to respond to crises across the full range of military operations, from humanitarian assistance to fighting and winning major theater wars . . ."16 Between 1990 and 1996, the Army "deployed 25 times - an increase in missions by a factor of 16."17 During the same period, the Army has become smaller. Between 1989 and 1999, the Active Army reduced from 781,000 to 468,000, and the Total Army from 1,960,000 to 1,068,000.18

    Missions will increase not only in number, but also in diversity. The National Security Strategy requires military forces "to effectively deter aggression, conduct a wide range of peacetime activities and smaller-scale contingencies, and . . . win two overlapping major theater wars."19 Supporting national military objectives include promoting peace and stability, and defeating adversaries.20 To accomplish these objectives, the Army envisions a full spectrum of missions, including defending or liberating territory, intrusions in support of counterdrug and counterterrorism operations, peacemaking, peacekeeping, national and theater missile defense, multilateral military exercises, military-to-military exchanges, and humanitarian relief.21

1.3.2    Command and Control Relationships (Joint, Multinational, and Interagency)

   Command and Control relationships will become increasingly complex. Operations will be joint and multinational, requiring improved interoperability among the services and with allied and coalition partners.22 Additionally, U.S. forces must "enhance their ability to operate in consonance with other U.S. government agencies, and with Non-governmental Organizations (NGOs), International Organizations (IOs), and Private Voluntary Organizations (PVOs) in a variety of settings."23 These relationships will require much of future leaders.

    Our future leaders at all levels of command must understand the interrelationships among military power, diplomacy, and economic pressure, as well as the role of various government agencies and non-governmental actors, in achieving our security objectives. They will require a sophisticated understanding of historical context and communication skills to succeed in the future. The evolution of command structures, increased pace and scope of operations, and the continuing refinement of force structure and organizations will require leaders with a knowledge of the capabilities of all four services.24

1.3.3    International Operations

    U.S. Armed Forces will continue to be involved in international operations for several reasons. First, threats to United States security interests are international; they include regional conflict, proliferation of weapons of mass destruction, terrorism, ethnic disputes, and international organized crime.25 Second, responding to these threats will require international cooperation. "We are continuing to adapt and strengthen our alliances and coalitions to meet the challenges of an evolving security environment."26 This will require military forces to act in cooperation with other nations' forces. Third, responding to these threats will require the full spectrum of military operations to shape the international environment, respond to international crises, and to deter and resolve international conflicts.27

1.3.4    Fluid Operations

    Military forces will be required to be flexible, versatile, and responsive in changing missions and locations, and to do this as it restructures. "[O]ur military must also be able to transition to fighting major theater wars from a posture of global engagement -- from substantial levels of peacetime engagement overseas as well as multiple concurrent smaller-scale contingencies."28 "All organizations must become more responsive to contingencies, with less 'startup' time between deployment and employment. Because we rely on the total force to provide the full range of military capabilities, we also require responsive reserve components that can rapidly integrate into joint organizations."29 The Army's "ability to project power is greater today than at any time in our Nation's history. . . . Today, we can deploy a heavy armored brigade in 96 hours. . . . our ability . . . will be further enhanced, thus making our forces even more versatile . . ."30

    This era will be one of accelerating technological change. Critical advances will have enormous impact on all military forces. Successful adaptation of new and improved technologies may provide great increases in specific capabilities. Conversely, failure to understand and adapt could lead today's militaries into premature obsolescence and greatly increase the risks that such forces will be incapable of effective operations against forces with high technology.31

1.3.5    Technological Advancements

    For judge advocates, the most significant technological advancement will occur in information systems. This will change operations in three important ways; it will accelerate the tempo of operations, allow fusion of information in distinct staffing cells, and empower decision-making at lower echelons than in the past.32

1.4    CHALLENGES FOR JUDGE ADVOCATES IN THE 21ST CENTURY

    While judge advocates will continue to perform their traditional roles, the new environment will greatly affect how they pursue their three fundamental objectives - mission, service, and legitimacy.

1.4.1    Mission

    Pursuing the mission in the 21st Century will challenge judge advocates in three distinct ways. First, judge advocates must become increasingly refined as soldiers and lawyers. Judge advocates must understand how the Army will accomplish its various missions, and how to identify and resolve legal issues arising during these missions. They must understand the command and control relationships involved in each operation, and provide advice concerning the authority and responsibility of relevant agencies. They must be thoroughly grounded in all core legal disciplines to be effective in a fluid operational environment. They must be increasingly knowledgeable in international law as the Army cooperates with other nations' forces to secure United States interests world-wide.

    Second, judge advocates must become more involved in the military decision-making process in critical planning cells, and at lower levels of command. As information technology increases the speed of decision-making and allows fusion of information in distinct cells, it becomes critical for judge advocates to be located where the relevant picture of the battlefield is received, evaluated, resolved, and affected. Otherwise, legal advice will not be timely or effective. To be proactive, the judge advocate must be present. As information technology empowers decision-makers at lower levels of command, judge advocates must be present there.

    Third, judge advocates must be capable of expanding the level of legal support to meet the mission demands of a force projection army. Projection creates surges in demand for legal services: deploying forces require legal support; the power projection platform requires temporarily increased legal support during mobilization, and augmented legal support in the event of deployment of tenant units and their organic judge advocates; the home station continues to require legal support. Judge advocates, in both the active and reserve components, must plan for the legal resources to meet these demands, and must be prepared to provide services with the deploying unit, the power projection platform, or home station.

1.4.2    Service

    Providing effective service to commanders, staffs, personnel, and family members in the new environment will challenge judge advocates in four ways. First, judge advocates must maintain connectivity with operational and tactical networks and legal information sources in a fluid and technologically advanced environment. Of paramount importance will be the ability of the Rucksack Deployable Law Office and Library (RDL) to interface with Maneuver Control System - Phoenix (MCS-P), Global Combat Support System - Army (GCSS-A), Combat Service Support Control System (CSSCS), and Legal Automated Army-Wide System (LAAWS). As future systems develop, judge advocate connectivity must continue.

    Second, judge advocates must provide technical supervision (supervision of legal operations by a Staff Judge Advocate) and technical support (direct legal expertise from JAGC organizations) to deployed judge advocates in every contingency. The variety of legal issues arising from diverse missions is a tremendous legal challenge to a deployed judge advocate. This can be especially challenging in joint and multinational operations. In joint operations, service specific regulations and policies apply. In multinational operations, troop contributing nations must still comply with their national laws. Legal supervision and support must be effective to ensure quality legal service to commanders and staffs. RDL connectivity will be critical to providing this support.

    Third, judge advocates must be mobile. They must move, not only with the supported unit, but also independently to investigate claims and potential war crimes, to be at the commander's side at key meetings, and to perform other legal missions. A judge advocate's ability to collect evidence first-hand is frequently the reference point from which a claim is adjudicated fairly, and the truth about a potential war crime is learned. Responsive service in a fluid operational environment requires dedication of transportation in support of the judge advocate.

    Fourth, judge advocates must provide professional legal services to personnel and families, most importantly during deployments and split-based operations. Expanding the level of legal support during demanding times will be the most significant challenge. Also important, however, will be allocating adequate legal resources: the trained personnel and facilities required to provide the professional atmosphere expected by clients.33 This contributes substantially to good quality of life, which in turn, retains quality people.

1.4.3    Legitimacy

    The future environment will challenge judge advocates in several ways. First, judge advocates must be well-grounded in constitutional and international law and values. Their understanding of, and ability to reconcile, those laws and values will be instrumental in promoting effective coalitions and international public respect for U.S. Army operations. Second, as the U.S. seeks to promote democracy abroad,34 the international community will expect U.S. Army operations to be consistent with democratic values. Therefore, the judge advocate's traditional role of assisting commanders to integrate democratic values into Army operations must continue. Finally, as the U.S. military "serves as a role model for militaries in emerging democracies around the world,"35 judge advocates must personally serve as teachers, trainers, and mentors for their counterparts.

1.5    SUMMARY

    The judge advocate in the 21st Century must adapt the traditional role to a more demanding, complex, fluid, international, and technological environment. The judge advocate must continue to be a master of all core legal disciplines, and must be effective in the roles of judge, advocate, ethical advisor, and counselor. The judge advocate will succeed in the new environment by becoming increasingly knowledgeable as soldiers and lawyers, maintaining constant awareness of the operational situation and communication with technical supervision and support, and integrating constitutional and international democratic values into military operations.



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