New Jersey National Guard Soldiers and Airmen arrive near the U.S. Capitol to set up security positions in Washington, D.C., on 12 January 2021. National Guard Soldiers and Airmen from several states traveled to Washington to provide support to federal and district authorities leading up to the 59th Presidential Inauguration. (Credit: Master Sergeant Matt Hecht)
Azimuth Check
Leading Lawyers and Advising Senior Leaders During Crisis
Reflections on the Army’s January 2021 Civil Disturbance Operations Response
By Colonel (Retired) Gail A. Curley
The time since February 2020 has
been full of major surprises on the domestic operations front.
After responding to the global pandemic last spring, the National
Security Law Division (NSLD) spearheaded the Office of The Judge
Advocate General’s (OTJAG) legal support to the Army for nation-wide
civil disturbance operations (CDO) beginning in late May 2020 and
continuing into the fall. The shocking attack on the Capitol on 6
January immediately pulled the Headquarters, Department of the Army,
into an unprecedented crisis as the Secretary of the Army (SecArmy) is
the equivalent of the Governor for the District of Columbia National
Guard (DCNG). Thus, when civil authorities requested DCNG support to
reestablish security and protect the Capitol, the Acting Secretary of
Defense (SecDef) approved the request and directed SecArmy to coordinate
the provision of all National Guard (NG) support. In the succeeding two
weeks, governors sent approximately 25,000 NG Soldiers and Airmen to
Washington, D.C., to serve under the direction of the Commander, DCNG
and under the coordinating authority of SecArmy.
There are many lessons learned and insights from OTJAG’s response that
are worth sharing with legal personnel as best practices for advising
clients and responding to crisis. These insights fall into two
categories: 1) leading the legal team and 2) advising senior clients.
Leading the Legal Team
Assemble a Dedicated Team
The National Security Law Division was engaged in its normal daily
business when the crisis on 6 January occurred. Immediately, NSLD
transformed into a legal operations center to provide support to The
Judge Advocate General (TJAG), the Army Operations Center,
and—ultimately—SecArmy. We pulled in additional judge advocates (JAs)
from the Administrative Law Division, OTJAG; designated two JAs as
“battle captains”; instituted a battle rhythm; created knowledge
management systems; started creating products; and developed portfolios.
As many of our teammates were teleworking due to the pandemic, the
extraordinary events of 6 January brought everyone physically into the
Pentagon to flatten communications and improve collaboration. This was
difficult, but necessary. In essence, we recreated the battle drill that
we used in March 2020 for our response to COVID-19. We also drew heavily
from lessons learned during the civil disturbances in Washington, D.C.,
in June 2020. One of those lessons learned was to send a JA liaison
officer to embed in the DCNG; we ultimately sent two JAs who became
crucial enablers.
Building and Expanding the Network Is Critical
While getting our internal operations started, we simultaneously built
and expanded the technical chain network. Communication is always
critical and this crisis was no different. We quickly identified the key
attorneys at various headquarters including the DCNG, National Guard
Bureau (NGB), Joint Staff, Army Office of the General Counsel (OGC), and
the Department of Defense (DoD) OGC. Because we had previously
established good working relationships with these attorneys during
COVID-19 and the previous CDOs, the network was already in place. We led
from below by flattening communications, including setting up regular
syncs on Microsoft Teams, sharing information through knowledge
management (KM) systems, participating in syncs hosted by other legal
offices, and always asking ourselves, “who else needs to know?” For
example, NGB OGC conducted a daily teleconference with JAs from the
fifty-four States and territories; this was a tremendous opportunity to
share critical information with the JAs who were advising commanders as
units moved into Washington, D.C., and began operations. The DoD OGC
also held regular phone syncs that provided the opportunity to learn
about higher level issues and emergent requests for NG support; it also
provided an invaluable opportunity to communicate Army concerns directly
to the DoD General Counsel and other senior lawyers.
The Legal Work Must Be Done Well
The NSLD used the time period from 6 to 11 January to establish an
operational cell, educate our teammates on the unique authorities of
SecArmy over the DCNG, and to establish—in coordination with other key
players—governing principles for the civil disturbance operation (CDO).
Those governing principles were that 1) SecArmy is the coordinating
authority for the entire NG response (per Acting SecDef written
delegation); 2) the Commanding General (CG), DCNG will provide tasks to
out-of-state NG personnel (even though they remained under the command
and control of their governors); and 3) all NG personnel will follow the
DCNG Rules for the Use of Force and the arming decisions of SecArmy and
the CG, DCNG (with the consent of the governors).
12 to 20 January was an extraordinary period where SecArmy led CDO for
the DoD. On 12 January, the Acting SecDef delegated essentially all of
his authorities over the CDO response to SecArmy, which meant that
SecArmy was responsible for approving all requests for assistance from
federal agencies and for coordinating with the Chief, NGB to request NG
members from across the nation to provide support. On the same day,
SecArmy requested a dedicated legal advisor for CDO, so TJAG, Lieutenant
General Charles N. Pede, directed me to start working in SecArmy’s
office. The NSLD Deputy Chief, Colonel Josh Berry, led our legal
operations center while I accompanied SecArmy to various meetings,
including: a planning session with the Secret Service and other agencies
for the presidential inauguration; a meeting with the Speaker of the
House of Representatives; a trip to the D.C. Armory to meet with key
leaders to discuss sensitive issues including arming; and two
interagency rehearsal of concept (ROC) drills for the inauguration.
These meetings were important for discerning critical facts and to
understanding the perspectives and concerns of senior leaders.
During this timeframe, NSLD worked on several memorandums and letters
for SecArmy’s signature before the inauguration. Because of the
uniqueness of SecArmy’s oversight of the DCNG, there is no established
orders process for conveying operational orders and guidance to the CG,
DCNG, and the 25,000 NG members operating under his direction. Thus,
SecArmy communicated all of his key decisions via memorandums and
letters that NSLD drafted—and which were extensively coordinated with
multiple stakeholders—including the Office of the Under Secretary of
Defense for Policy, DoD OGC, Joint Staff, NGB, Army OGC, and DCNG. These
documents included approvals for NG support to the federal agencies and
civil authorities, as well as employment guidance on use of military
equipment, arming, and quick reaction forces. It was essential that NSLD
wrote the memos and letters—we had “the pen”—to ensure that all
important pieces were addressed, including documenting verbal approvals
to ensure that there was a record of all decisions. We were then able to
adjudicate edits and comments from the legal enterprise in a
collaborative manner. Likewise, once SecArmy signed documents, it was
important for NSLD to rapidly disseminate them to the legal enterprise
and to make them accessible in our KM systems.
Advising Senior Clients
An Effective Lawyer Understands the Client’s Intent and Risk Tolerance
Senior leaders are generally concerned about the strategic environment,
clearly communicating their intent, and risk. In this case, SecArmy
worked diligently to understand the strategic environment and to assess
the potential risks involved in his decisions. The Secretary of the Army
met and spoke continuously with numerous senior government officials in
the days leading up to and through the Inauguration to understand their
concerns. This was key to his understanding of the situation, the
requirements for NG support, and to his risk calculus for how NG support
would be provided. The final ROC drill for the Inauguration was attended
by Cabinet-level officials and was crucial for ensuring that the various
law enforcement agencies—U.S. Secret Service, U.S. Capitol Police,
Metropolitan Police Department, and U.S. Park Police—and the DCNG were
fully synchronized and aware of each other’s capabilities and plans. The
senior leaders discussed, by time and geography, how the Inauguration
would be conducted, including how the agencies would react if unplanned
incidents occurred. The ROC drills helped provide a common operating
picture and ensured unity of effort.
Access to the Client is Essential
As the legal advisor, it was necessary to understand SecArmy’s intent
and risk tolerance on multiple issues. Being in the room was essential
to obtaining that understanding—both in terms of attending the key
meetings and having ready, in-person access to the client. It was very
important for the legal team to take a prudential perspective in
preparing the memorandums and documents that SecArmy signed. We
continually thought about what others—Congress, the public, the
media—might think when they looked back on the NG response and
protection mission. We tried to thoroughly document all decisions and
the factors and coordination surrounding those decisions. This was
challenging since some decisions were made verbally, but we were
diligent in ensuring that decisions were reduced to writing.
Lawyers Get Paid from the Neck Up
We were working very long hours and fatigue was a factor for all
personnel. After about a week, I realized that I needed to get
sufficient sleep in order to provide the best possible legal advice.
After all, lawyers get paid to think clearly, and being exhausted
impairs cognitive function. The same was true for the OTJAG team, and
our battle captains took care to manage the shifts so personnel were
able to get adequate rest.
Having a Smartbook is Essential
While automated KM is a critical aspect of running an effective legal
operations center and providing a common operating picture across the
legal enterprise, equally critical for me was having a physical binder
with all the key documents in it. I was able to quickly turn to the most
important documents—Acting SecDef memos, SecArmy memos, and requests for
assistance from civil authorities—in meetings to ensure that senior
leaders were aware of the latest decisions or requests. Likewise, I
carried multiple copies of NSLD’s legal products, including authorities
charts, that I could hand to senior leaders when needed. Given the fast
pace of operations and the need to operate while on the move, having an
old-fashioned smart book was a key to success.
Trust Is the Coin of the Realm
At the end of the day, trust between client and lawyer is what really
matters. It is hard to surge trust. In this case, we were able to build
on TJAG’s already established trusting relationship with SecArmy and on
NSLD’s close relationships with the HQDA G-33/Army Operations Center
team. We were fortunate in that SecArmy had complete confidence in the
legal abilities and judgment of his attorneys and accepted all of our
advice and recommendations without hesitation. I think that fully
understanding his perspective and intent was instrumental to the
effectiveness of the legal advice and support we provided; and that
understanding came from having unfettered access and from actively
listening to what SecArmy, the Chief of Staff of the Army, and other
senior leaders said.
As St. Francis of Assisi so famously said, “[do not so much seek] to be
understood, as to understand.”1It is critical for lawyers to listen to their clients and fully digest what they hear. Listening develops the lawyer’s understanding of the client’s intent and risk tolerance. The lawyer should then apply their critical thinking skills and judgment to the factual situation and meet in person with the client to discuss the legal advice. That is an ideal recipe for how lawyers and clients develop mutual trust and respect. Relationships matter—SecArmy constantly sought to meet or speak with key leaders outside the Army so he could understand their perspectives. The same should be true for military legal advisors. They must have unfettered access to their clients and listen. They must also develop their legal networks before there is a crisis so they know who to call when a crisis occurs.
Trust is also necessary within the legal team. The Judge Advocate General trusted the NSLD team to prepare thorough, well-written legal products concerning complicated legal issues that OTJAG had never previously handled. However, as I learned at the start of COVID-19, a group of smart, dedicated JAs and paralegals can move mountains and deliver perfectly-targeted legal advice in a crisis. That was borne out once again in January 2021. TAL
COL Curley retired after 30 years of active duty service in the U.S. Army, serving as the Chief, National Security Law Division, Office of The Judge Advocate General, at the Pentagon in Washington, D.C., in her final active duty position. She is currently the Marshal of the U.S. Supreme Court in Washington, D.C.
Notes
1. St. Francis of Assisi, Peace Prayer (n.d.), https://www.loyolapress.com/catholic-resources/prayer/traditional-catholic-prayers/saints-prayers/peace-prayer-of-saint-francis/.