(Credit: istockphoto.com/Elizabeth M. Ruggiero)
Court Is Assembled
Putting Principled Counsel into Action
By Lieutenant General Charles N. Pede
“Sir, you can’t fire on that target!”
Or, “You can’t buy ammunition for the Iraqis…”
The quotes above might resonate for a law of armed conflict (LOAC) opinion or an ethics or fiscal law
dilemma;
but, in the day-to-day give-and-take practice of law with the best
clients in the world, rarely is it so clear cut.
Instead, there’s nuance and context. And context always matters. Take
questions like: How do we find a way to fund food and fuel for the
Peshmerga to ensure they tend their border areas, when they don’t “fit”
our current view of U.S. legislation’s intended beneficiaries of funded
support? Can we spend U.S. dollars in an unfriendly Afghan village—for
cooking oil for the villagers or a carpet for the local mosque—in an
attempt to at least ensure safe passage for Soldiers? Do pragmatic
interpretations of fiscal law embrace principled counsel?
What about releasing detained Iraqis—captured during operations—who are
known to have murdered fellow Iraqis and Americans? While properly
detained, the host nation leader now seeks their release, from U.S. and
host nation partnered detention, to pursue reconciliation with the
opposing party. After weeks perfecting your case through raids and
witness identification and preservation, now your job is to convince the
local judge to reverse the properly imposed detention order for policy
reasons.
Simply put, what does principled counsel look like in the fog and chaos
of war? Nearly thirty years ago, I served as a legal advisor during
Operation Restore Hope—a U.S.-led, multinational effort to create a
protected environment for conducting humanitarian operations in southern
Somalia. My chief duty was to sit with the battle captain recording
radio transmissions—a duty I’d assumed for the 1st Brigade from my
indomitable predecessor, Captain Roger Cartwright. Like Roger, I quickly
learned how to capture the details, wordsmith for the truncated log,
and—when appropriate or when asked—to give advice on the then-fairly
novel rules of engagement. Shoot at crew-served weapons on sight? Use
deadly force or warning shots at penetrations into our wire? And, what
about targeting highly-mobile truck-mounted mortars in dense urban
terrain with our airborne scout-weapons team?
Roughly two months before the now infamous October raid to capture the
Somali warlord Farrah Aidid, the radio crackled at the desk I shared
with the battle captain, and a voice screamed “Grenade!” Somalis were
swarming an engineer column. The chatter on the radio was charged.
Colonel (COL) Dallas, who commanded 2d Brigade, 10th Mountain Division,
strode into the tactical operations center (TOC) directly from his
overflight of the area and slammed his rifle onto the large plywood
plans table, frustrated the staff hadn’t yet brought firepower to bear
to relieve the convoy in distress.
A subtle sergeant major quietly removed the magazine and chambered a
round from the commander’s rifle as the S3 operations officer updated
him. “Tell the pilot to open up,” COL Dallas told the battle captain. I
looked up at COL Dallas from the TOC log. He wasn’t asking for anyone’s
input—or options. Americans could die, or worse, be captured and
tortured. But all of us also knew the streets in Mogadishu were a
chaotic mixture of women, children, and armed Somalis. My mind raced for
some clear notion of applicable LOAC that I could offer to COL Dallas. I
found none.
So I said, “But Sir.” That’s it. Brilliant, right? I was not consciously
thinking about principled counseling when I did speak. And I am sure
what I said has been said by judge advocates thousands of times over in
our Corps’s history. To me, it has become the very epitome of principled
counseling.
Colonel Dallas looked at me, then the battle captain. “Direct him to
fire warning shots into the wall.” The bird opened up on the
wall—dispersing the “swarm.” The convoy accelerated safely home.
Is that what principled counsel really looks like? Is that it? No grand
show? No Hollywood moment? No real insight or command of the law?
Yes. And that is all commanders often need.
Principled counsel comes in many forms. In my experience, it comes from
your heart and your extended heart—your gut. It starts with a developed
and deep moral sense of what is right, shaped by the rules of civil
society. And that foundation informs the topic at hand.
Be Patient
Our principles are infused with what the law and ethics tell us are
normative values. We give these notions life through the lifelong
development of habit of doing the right thing when no one is looking,
based upon those values. We pick up trash on the sidewalk, even if it is
not ours, because it’s the right thing to do. Why? Because we’ve seen
someone else do it—and we admire them for it. We know it makes our
community a better place.
We counsel how to care for our loathsome enemy prisoners of war because
we know it’s the right thing to do—because we’d want to be treated
properly as well and we hope for a measure of reciprocity in the next
fight.
This is where our sense of principle emanates. It is from our shared
cultural wellspring of what right looks like.
Principled counsel is also collaborative. Colonel Dallas was already
there, waiting for me to catch up to help. He simply needed some
friction, some alternative, a momentary pause to give himself another
option. And without missing a beat, he found his option on his own. The
mark of an exceptional field commander.
The Drumbeat
Which is why we drumbeat the constant of Principled Counsel. I offer
these various personal examples—told here for the first time—to give
some context to the constant we drumbeat as a Corps and celebrate in
this issue of The Army Lawyer. From humanitarian missions in Somalia, Haiti, Bosnia, and Kosovo to contingency operations in Iraq and Afghanistan, the last thirty years are replete with timeless examples of principled counsel. I can say that, just from my foxhole, having lived it. These timeless examples, however, are only a small piece of our Corps’s history and our members have been providing principled counsel on the battlefield from our very inception. The battlefield and the weapons may change, the rules of engagement and the fiscal authorities may look different, yet the value of a judge advocate saying, “But, Sir” remains the same.
For the past three years, we have showcased our Constants—Principled Counsel, Mastery of the Law, Stewardship, and Servant Leadership—and have depicted them, visually, as points of a North Star. This was deliberate—guiding principles that point the way through the darkness, toward the light. And as we have been an Army in transition and transformation—and know more transitions are still to come—we chose our Constants to lead our way.
As I type this, I am sitting in the study of my house rather than at my desk in the Pentagon. As you read this, months from now, think back to May 2020 and where we were in the COVID-19 fight. We have done much work as a Corps, as an Army, and as a Nation—but there is much work to be done. As states begin to reopen and return to a “new normal,” there is also much uncertainty. As we face uncertainty, we as a Regiment must turn to our Constants as our guide.
Our Corps’s doctrine defines “principled counsel” as “professional advice on law and policy, grounded in the Army Ethic and enduring respect for the Rule of Law, effectively communicated with appropriate candor and moral courage, that influences informed decisions.”1
Professional advice on law and policy is expert, well-researched, and delivered at the speed of war. Principled counsel influences a commander’s exercise of discretion to apply sound judgment and fuels the commander’s intent.
In a crisis, principled counsel is a challenge. As the temperature rises and the pressure builds, commanders want to get after the problems, to solve them and deliver results. In the case of COVID-19, commanders want more than anything to keep people safe. What could be more important than that?
In the rush to solve the problem, you must possess the calm, cool head.
As I know you’ve all heard from me, “If you can keep your head, when all about you are losing theirs.”2
Our charge as judge advocates is to bring the rule of law to the forefront and to provide the commander with options. As in my all-but-accidental case with COL Dallas, allowing commanders to pause, even for a moment, to reassess and reattack the problem can bring down the temperature and relieve the pressure. Never is principled counsel more vital to your commander than in a crisis. But it is often not as lofty or aspirational or refined as you’d like it to be. That is OK. I trust you will have your moment, and take it, as I was lucky enough to have done, to say, “But, Sir.” You too will likely have your moment to say, “But Sir…”
Be Ready! TAL
Notes
1. Lieutenant General Charles N. Pede & Major General Stuart W.
Risch, TJAG and DJAG Sends, Vol. 40-16, Principled Counsel—Our Mandate
as Dual Professionals
(Jan. 9, 2020).
2. Rudyard Kipling, If, in Rewards and Fairies (2010).