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The Army Lawyer | Issue 5 2021View PDF

Azimuth Check: Leading Lawyers and Advising Senior Leaders During Crisis

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)

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


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/.