Blog

TJAG Sends: Evolving with the Threat

Wed, 10 Jul 2024 18:14:00 GMT

This edition of The Army Lawyer is devoted to our National Security Law Practice. Members of the Regiment should take notice. The Army Lawyer is not simply an excellent collection of eclectic writings on our practice of law. Foremost, it is designed to catalyze thought and focus energies on premier lawyering in uniform.

Court is Assembled: Leading From the Front

Wed, 10 Jul 2024 17:56:00 GMT

Unselfishness, as far as you are concerned, means simply this—you will put first the honour and interests of your country and your regiment; next, you will put the safety, well-being, and comfort of your men; and last—and last all the time—you will put your own interest . . . .-Field Marshall Sir William Slim (1957)

News & Notes

Wed, 10 Jul 2024 17:33:00 GMT

1. BG Berger Visits NTC Brigadier General (BG) Joseph Berger, the Commander of the U.S Army Legal Services Agency, led a team of JAG Corps leaders on an Article 6 inspection to the National Training Center at Fort Irwin, California, to assess the legal office’s readiness and effectiveness in supporting the U.S. Army’s mission of training our Soldiers for conflict. During the Inspection the team enjoyed an early morning hike up Mount Blackie, led by Private First Class Custer-Jones, for physical training. The team then conducted an aerial orientation of “The Box” while Lieutenant Colonel Eric Husby briefed them on changes to the National Training Center’s direct action training scenarios, designed to make training more realistic to what our Soldiers face in combat. Upon their arrival at “Gilmore Gulch” the Fort Irwin Staff Judge Advocate, Lieutenant Colonel Phil Staten, led the dedication of a memorial to Chief Warrant Officer Five Sharon Swartw ...

Lore of the Corps: The Hesse Jewels Courts-Martial

Tue, 09 Jul 2024 20:42:00 GMT

The last “Lore of the Corps” in The Army Lawyer (Issue 1 2019) featured the infamous theft of the Hesse Jewels and a brief look at the follow-on courts-martial against Colonel (COL) Jack W. Durant, Captain (CPT) Kathleen B. Nash Durant,1 and Major (MAJ) David F. Watson. 2 All three were convicted at separate trials and all three were dismissed from the service and sentenced to terms of confinement at hard labor. Colonel Durant’s term of imprisonment was fourteen years; CPT Nash Durant and MAJ Watson were sentenced to five and three years, respectively.3 What happened after the three officers were convicted, however, is every bit as interesting as the crime itself, especially since President Dwight D. Eisenhower would ultimately grant a full and unconditional pardon to one of the three. What follows is the “rest of the story” surrounding the theft of Hesse family’s jewels.4

WRITECOM: Email ROE

Tue, 09 Jul 2024 20:00:00 GMT

The pen is mightier than the sword. As lawyers, we want to believe this. We must believe this. Words matter. Words have consequences. Words can damage just like weapons. Like a weapon, email can be quickly employed in the heat of passion, often without thinking, and with disastrous consequences. But unlike the sword, where we have rules of engagement (ROE) to guide its use, we have no rules for the use of email.

Career Note: Executive Counsel

Tue, 09 Jul 2024 19:50:00 GMT

The judge advocate career model calls for continual professional development throughout the course of one’s service. This includes broadening assignments to develop the capability to see, work, learn, and contribute outside one’s own perspective or individual level of understanding for the betterment of both the individual and the institution.1 For the past year, I had the privilege to see, work, learn, and contribute in an environment vastly different from the unit and installation Office of the Staff Judge Advocate assignments in which judge advocates spend much of our time—as a Deputy Legal Advisor on the National Security Council (NSC) staff at the White House.

Life Hack: TRICARE: Another Reason to Stay

Tue, 09 Jul 2024 19:07:00 GMT

Ten years ago, as a single, healthy, adventurous twenty-something finishing up law school, none of the benefits offered to military members and their families factored into my decision to join the Army. I joined to serve my country and for the exciting legal career opportunities. I stay because I enjoy it, take pride in it, and now more than ever I understand the value of the benefits, especially health care.

USALSA Notes: Readiness and the National Environmental Policy Act

Tue, 09 Jul 2024 17:43:00 GMT

In 2006, the 9th Circuit, in Ilio’ulaokalani Coalition v. Rumsfeld, ruled that the U.S. Army’s plans to stand up a Stryker Brigade Combat Team (SBCT) at a Hawaiian base violated the National Environmental Policy Act (NEPA) because the Army failed to consider other Army locations to station the team.

Identifying Two Acceptable Offerors in an LPTA Procurement Is Key

Mon, 08 Jul 2024 20:39:00 GMT

In a Lowest Priced Technically Acceptable (LPTA) procurement, award is made to the lowest priced offeror who is also deemed to be technically acceptable.1 When quotations are received, procuring agencies typically rank the offerors by price, technically evaluating each offeror until a technically acceptable offeror is found. At that point, the temptation is to stop evaluating. The LPTA has been identified and award can be made. Most people might think the contracting team’s job is finished, but the end of source selection is often not the end of the process. The best practice is to continue evaluating offerors for technical acceptability until a second, and perhaps even a third, technically acceptable offeror is identified. Having additional offerors who are “next in line” provides the agency with a basis to have potential bid protests dismissed.

TJAG Creates Electronic Discovery Program

Mon, 08 Jul 2024 20:33:00 GMT

The explosion of electronically stored information (ESI) has dramatically affected our Corps’ practice, creating a myriad of challenges on how we preserve, collect, and process information for litigation. The Federal Rules of Civil Procedure have expanded to address ESI, and our attorneys must keep pace with technological developments, or face sanctions by the courts. Additionally, most state bars have adopted rules regarding technology, such that the ethical obligation of competence now requires each of us to be cognizant how ESI and electronic discovery affects our practice.

Recouping Cleanup Costs with Affirmative Cost Recovery

Mon, 08 Jul 2024 20:13:00 GMT

With the affirmative cost recovery (ACR) program, the Environmental Law Division can assist installations in recovering funds spent on environmental cleanup. The Army is involved in the cleanup of numerous past or presently-owned military facilities, representing billions of dollars in expended and projected cleanup costs. The mission of the ACR program is to recover cleanup costs from contractors or other responsible entities for contamination on Army property, and to avoid expending funds to cleanup contamination caused by a third-party.

Practice Notes: The Enigmatic Adjudicator

Mon, 08 Jul 2024 19:56:00 GMT

The Department of Defense (DoD) Consolidated Adjudication Facility (CAF) is an enigma for many DoD personnel holding top secret security clearances. For example, the accused in a joint military commission faced the prospect of losing their defense counsel over security clearance issues.1 Specifically, a security officer believed each of the accused’s defense attorneys willfully disseminated classified information over an un classified network. The security manager subsequently “referred” the matter to the DoD CAF for adjudication. The military judge—already frustrated at the perceived slow pace of security clearance adjudications for new personnel—soon became focused on a litany of DoD CAF-related questions, including what exactly the DoD CAF’s role was in the process, whether a referral created a conflict of interest for defense counsel, how best to speed things up to resolve the matter and avoid delay, and what a “referral” ac ...

Military Exchange Personnel

Mon, 08 Jul 2024 19:42:00 GMT

Recognizing the importance of interoperability with our allies, the U.S. Army has fully embraced the Military Personnel Exchange Program (MPEP). The Army currently has 156 total exchanges with fifteen countries. The foreign personnel serving in U.S. Army positions includes nine foreign general officers serving as deputy commanding general or chief of staff at the division, corps, and Army Service Component Command levels.

A JA’s Role at the National Geospatial Intelligence Agency

Mon, 08 Jul 2024 18:56:00 GMT

Shortly before reporting to the National Geospatial-Intelligence Agency (NGA) as the only active duty military attorney assigned to the Office of Counsel, I sat down with the incumbent for some left-seat/right-seat. Those two days felt akin to drinking from a classified firehose. While each new assignment poses challenges, by the time a judge advocate hits the field grade ranks, they have at least seen or heard about most issues, even if from a distance. Not here. Despite having nearly two decades of judge advocate work behind me, I found myself in a position requiring virtually a different language. “I haven’t practiced this type of law before,” I found myself preemptively apologizing. “Don’t worry,” I was told, “No one has—not until they get here.”

Reflections on Multi-National Interoperability from the IIHL

Tue, 02 Jul 2024 18:33:00 GMT

In amplifying TJAG’s mantra to “Be Ready” we must understand our multi-national partners. If you are to assume anything in a multi-national military operation, assume your multi-national partners view the world, and, relevant to this article, the Law of Armed Conflict (LOAC), differently than you. The consequences of an opposite assumption could have significant legal and, more importantly, operational impacts. Compounding the challenges when working with a multi-national partner whose experience may vary from zero understanding of LOAC to incredibly sophisticated insight—the partner nation will almost certainly have different permissions and authorities enabling more or less operational flexibility.

No. 1: Are We Allowed To Be There?

Tue, 02 Jul 2024 18:07:00 GMT

I believe that the troops who were sadly killed in Niger in October of 2017 were engaged in a mission that they were not authorized by law to participate in . . . and that is a significant reason that they tragically lost their lives.1–Senator Tim Kaine

No. 2: The Changing Face of Warfare

Tue, 02 Jul 2024 16:34:00 GMT

Information is altering the character of international conflict in an era of strategic competition, and the U.S. military will not successfully grapple with this changing landscape by happenstance. In the words of former Secretary of Defense James Mattis, the “advent of the internet, the expansion of information technology, the widespread availability of wireless communications, and the far-reaching impact of social media have dramatically impacted operations and changed the character of modern warfare.”1

No. 3: Fostering Enduring Partnerships

Tue, 02 Jul 2024 15:26:00 GMT

. . . in pursuing a foreign policy based on American interests, we will embrace diplomacy. The world must know that we do not go abroad in search of enemies, that we are always happy when old enemies become friends, and when old friends become allies.1

No. 4: Creativity and Diversity Strengthen the National Security Law Workforce

Tue, 02 Jul 2024 14:38:00 GMT

I [expletive omitted] shot Bin Laden! Robert Allen Riggle Jr., 26 May 20111

Closing Argument: Gimmie Five

Tue, 02 Jul 2024 14:08:00 GMT

The Foundation of Five concept was challenged recently in an opinion piece in The Army Lawyer (see Demolishing the Foundation of Five, Nov./Dec. 2018). What follows is a response to that piece: