No. 2: Advising Commanders During High-Profile Investigations

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No. 2

Advising Commanders During High-Profile Investigations

Balancing the Rights of the Victim and the Accused in the Age of Social Media

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By Lieutenant Colonel Shaun B. Lister & Major Joseph A. Morman

The Army was ineffective at engaging in social media. Media, and more specifically social media, played a central role in establishing the negative information environment surrounding Fort Hood’s response to the disappearance of the SPC Guillén. [The] Fort Hood Public Affairs Office and CID Public Affairs Office were ill-staffed, ill-trained, and ill-prepared to effectively address the social media information environment. The Army ceded the social media space, lost the opportunity to inform and educate the public in a timely fashion, and allowed the unhindered growth of damaging narratives about Fort Hood and the Army.1

In the wake of Specialist (SPC) Vanessa Guillén’s disappearance and murder, Fort Hood experienced unprecedented media scrutiny. In the aftermath, the Fort Hood Independent Review Commission (FHIRC) conducted an investigation into Fort Hood’s culture, command climate, Sexual Harassment/Assault Response and Prevention (SHARP) program, and Criminal Investigative Division (CID) detachment.2 Afterward, the United States Army Forces Command (FORSCOM) Commanding General (CG) appointed an Army Regulation (AR) 15-6 investigation to review the criminal investigation and command response to SPC Guillén’s murder.3 The report of investigation included a scathing assessment of Fort Hood’s public affairs (PA) and public relations response.4

Both the FHIRC and the FORSCOM AR 15-6 investigations identified problems that are not unique to Fort Hood.5 Also, the III Corps Public Affairs Office was not solely responsible for these problems. Had this tragedy occurred at other similarly situated U.S. Army installations, it is likely that the same systemic problems that plagued the Army’s response would have similarly afflicted those installations. Furthermore, legal advisors at all levels must own part of this problem. In an effort to safeguard the rights of the accused and protect the integrity of criminal investigations, judge advocates (JAs) may become overly conservative when advising the public affairs officer (PAO) and the command but, as we will discuss, this effectively eliminates any maneuver space to stop the spread of disinformation and misinformation. In this context, disinformation is defined as “false information deliberately and often covertly spread . . . to influence public opinion or obscure the truth.”6 Misinformation is defined as “incorrect or misleading information.”7

The root problem is a failure to plan for and properly execute a forward-thinking PA8 response to high-profile investigations at the installation level. While it is true that high-profile investigations are uncommon, the consequences for failing to properly engage in meaningful discourse with the national news media and the American public can be catastrophic.9 The Army’s risk assessment matrix is a useful tool to highlight this point.10 By measuring the probability of occurrence against the severity of outcome, a decision maker can assess the level of risk inherent to a certain action.11 Applying the Army risk assessment matrix, even a seldom or occasionally occurring event like a high-profile investigation can result in a high-risk determination.12 The bottom line is, being unprepared to engage the public during a high-profile investigation is likely to result in serious consequences for the Army and the command. Staff judge advocates (SJAs) and legal advisors can be a part of the solution!

A commander is behind the information dissemination power curve if they have failed to develop a plan for engaging with the media and the general public before a high-profile investigation garners public interest. As soon as an investigation piques public interest, the clock is ticking and every hour that passes without a comprehensive PA response increases the likelihood of an information void.13 This information void can, and often does, lead to the proliferation of misinformation and disinformation that misleads the American public and paints the command in a negative light.14 Furthermore, the advent of social media as a primary news source has increased the speed at which misinformation and disinformation proliferates. Any commander who fails to acknowledge this fact and devise a PA strategy to account for it, will have a difficult, if not impossible, time keeping the public accurately informed. This article will provide JAs in leadership positions with a blueprint to coordinate with the command PAO and develop installation-specific strategies for advising the commander on PA during high-profile investigations.

The first section of this article will thoroughly define the PA problem facing commanders during high-profile investigations. This section will highlight concerns that are unique to modern times by examining how social media complicates the PA mission. To use a well-worn idiom, social media is a PA “game changer.” The second section of this article will outline the Army’s current approach to PA during high-profile investigations, fully exploring the law and rules that constrain extrajudicial statements by commanders and their staff during ongoing investigations. The final section of this article will provide JAs with a sample playbook on how to engage with the media during high-profile investigations in a more forward-thinking way. At the conclusion of this article, JAs will fully appreciate the problem facing commanders as they navigate PA during high-profile investigations and be prepared to work closely with the PAO to develop a plan to address it.

Public Affairs and Media Relations in the Age of Social Media

The PAO’s mission is to “fulfill[] the Army’s obligation to keep the American people and the Army informed, and helps to establish the conditions that lead to confidence in America’s Army and its readiness to conduct operations in peacetime, conflict, and war.”15 Army PAOs accomplish this by “leverage[ing] communication techniques to effectively tell the Army’s story to the right audience using the right tools, doing so as rapidly as possible.”16 While this mission and its execution are squarely within the purview of the command’s PAO, it intersects with the mission of the Office of the Staff Judge Advocate (OSJA) when the subject matter touches upon high-profile investigations. The SJA is responsible for providing legal advice to the CG on all matters pertaining to the investigation17 and it is here where the missions intersect. Therefore, the responsibility for providing advice to the CG regarding PA during high-profile investigations is a joint effort between both the SJA and the PAO.

If the SJA and the PAO fail to coordinate and develop a plan to address PA during high-profile investigations, it increases the likelihood that the command’s response will be untimely or unsuccessful.18 As mentioned above, the resulting information void creates an opportunity for the spread of misinformation and disinformation.19 If left to proliferate on social media, these false narratives can take hold in the public consciousness.20 Once these false narratives dominate public discourse, their veracity becomes largely irrelevant and commanders are faced with the near impossible task of correcting the record.21

With the ubiquity of social media, it is no longer a question of whether a high-profile investigation will stay out of the media, it is a question of what information the public will receive and who will provide it. General Robert B. “Abe” Abrams summed up the role of social media as a communications platform when he wrote, “At the end of the day, social media will proliferate with or without the presence of senior military leaders . . . it’s better for us [commanders] to get on the bus and enjoy the ride.”22 General Abrams was referring to communication with subordinates in general terms, but his message is timely and relevant to PA in high-profile investigations. Hunkering down and ignoring the “bad press” is no longer tenable.

Public Relations, Social Media, and High-Profile Criminal Investigations

The complexity of today’s media landscape and the speed at which information is disseminated has put to bed any question regarding the invalidity of the “no comment” response.23 Sound communications strategies must be rooted in strong foundational concepts rather than trying to “deprive the story of oxygen.” Commanders must educate the public about the Army’s complex processes and be as transparent as the law allows. In doing so, Army representatives must convey empathy, use plain language, and never forget to engage in person. This is especially true when engaging with the victim’s Family.

Failing to Care for the Family can be Catastrophic

Public affairs and command engagement during high-profile criminal investigations have far-reaching impact, particularly when it comes to a victim’s Family. Family members are primarily concerned with the safety and wellbeing of their loved ones. This concern drives their motivation to be fully informed and to search for answers.24 If the command does not fully address these honest and sincere motivations, they can spur advocacy that does not necessarily align with the Army’s interest.25 With this in mind, caring for the Family must be a commander’s paramount concern. Caring for Family members is a high-stakes situation and getting it right can have the dual effect of addressing the Family’s concerns while simultaneously fostering confidence in the command and the Army.

On the other hand, failing to care for the Family can have negative strategic-level implications. For example, the 2022 National Defense Authorization Act contains the most drastic changes to the military justice system since 196926 and these changes are arguably the result of Fort Hood’s PA struggles in the wake of the disappearance and murder of SPC Vanessa Guillén. Calls to remove commanders from the referral process predated the murder of SPC Guillén,27 but the Army’s struggles at Fort Hood were likely the straw that broke the camel’s back. At the very least, advocates for change were able to reference the aforementioned struggles to push for military justice reform.28

Army Secretary Ryan D. McCarthy briefs the media on the Fort Hood Independent Review, with SMA Michael A. Grinston, and Army Chief of Staff, GEN James C. McConville, at the Pentagon on 8 December 2020. (Credit: Lisa Ferdinando, DoD)

Disinformation as an Advocacy Tool

It is beyond the scope of this article to comment on the constitutional right to free speech that every citizen enjoys, but commanders must be aware of certain PA strategies that advocates employ if they are to effectively tell the Army’s story using the right tools at the right time. Victim advocacy groups can, and often do, use the public and media interest surrounding high-profile investigations to magnify their message.29 This presents unique challenges for commanders who are trying to keep the public informed of the facts. With social media, groups can instantly connect with the public and establish the discourse surrounding the investigation.30 Moreover, anyone with a social media account can fill information voids with whatever they want, including misinformation or disinformation.” Once this disinformation shapes the narrative surrounding the high-profile investigation, their PA focus shifts towards influencing elected officials and commanders.31

In most cases, traditional media bolster these efforts.32 When this occurs, the media is not necessarily coordinating directly with advocacy groups, but the blanketed news coverage creates additional command considerations.33 The social media narratives and traditional media reporting operate in concert to generate a ground swell of support from the American public for a particular outcome.34 This paper does not stand for the proposition that commanders should take an adversarial position to advocacy groups. Rather, commanders should be aware of the information dissemination dynamics at play during high-profile investigations and develop strategies to keep the public informed of the facts. This is important whether advocacy groups confront the command with deliberately deceptive content, known as disinformation, which should not be confused with unintentionally incorrect or misleading information, known as misinformation, in the form of viral storytelling.

Photo image from KHOU news in Houston (dvids). (Credit: KHOU News, Houston)

Misinformation Can Become the Narrative

The proliferation of misinformation on social media during high-profile investigations is arguably more insidious than disinformation because anyone with a social media account can unwittingly contribute to the problem. Misinformation on social media can lead to viral storytelling, false narratives, and the rooting of untruths in the public consciousness despite command efforts to inform the public.35 Social media provides anyone with access to an account with a platform to post information, whether or not that information has been vetted or verified. During a high-profile investigation, the command is in a race to inform the public before misinformation proliferates.

If the command gets behind the information dissemination curve, it has lost the chance to initially frame the issues in the minds of the public. To make matters worse, the people doing the framing will not have all the available facts,36 and they may not necessarily have the Army’s or the victim’s interests in mind. If these initial false narratives proliferate unanswered on social media, they can evolve into viral storytelling, making it nearly impossible for the command to set the record straight and in some cases, regain the public’s confidence.37 Consequently, it is critical for the command to develop forward-leaning communications strategies. However, before discussing how an OSJA can contribute to developing those strategies, it is important to understand the Army’s current conservative approach to PA during high-profile investigations.

An Overly Conservative Approach

The Army’s conservative PA strategy during high-profile investigations results primarily, though not exclusively, from risk-averse interpretations of three legal considerations. First, a commander engaging with the public and the media during an investigation is constrained by the Privacy Act of 1974 (Privacy Act)38 and the Freedom of Information Act (FOIA).39 The privacy rights of Soldiers involved in an investigation can limit the release of information. Second, commanders are constrained in their media engagements by the rules pertaining to Unlawful Command Influence (UCI).40 This is especially true when a commander makes extrajudicial statements,41 which are defined as statements “not forming . . . part of regular legal proceedings”42 during pending investigations. Third, both commanders and JAs must safeguard against pre-trial publicity that impacts an accused’s right to a fair trial under the Fifth Amendment of the United States Constitution.43

Legal advisors have traditionally rendered advice that approaches these considerations in an overly risk-averse way. They prioritize protecting the various due process rights of the subject(s) of an investigation over the potential harm that the command incurs through silence. This risk-averse approach ensures that issues do not manifest at trial, but often results in “no comment” PA responses that negatively impact the Army in the court of public opinion.44 Even when the command provides a response, it is typically devoid of substantive information because most investigators and JAs do not want to prejudice ongoing proceedings.45 This approach unquestionably shields high-profile case outcomes from prejudicial effect during appellate review. However, this approach is unduly risk averse because the public’s thirst for immediate information, sated by inaccuracy, often does not result in renewed interest once accurate information comes to light months or years after the public has lost interest and the accused has run out of appellate opportunities.

The Privacy Act and the Freedom of Information Act

Judge advocates must have a comprehensive understanding of the Privacy Act when advising commanders on PA during high-profile investigations if they are to help commanders develop forward-leaning PA strategies. The Privacy Act prohibits federal government agencies from disclosing any personal information contained within a system of records without the consent of the person to whom the record pertains.46 There are statutory exceptions to this provision,47 but for JAs advising commanders on PA, the relevant statutory exception is when FOIA requires disclosure.48 Stated another way, the Privacy Act may prohibit a government agency from disclosing information, but if FOIA requires disclosure, the Privacy Act will not stand in its way.49 Therefore, the relevant inquiries are whether FOIA requires release of information pertaining to high-profile investigations and under what circumstances? Does FOIA require commanders to release information solely because an investigation has captured public interest? The short answer is no.

But one cannot fully answer this question without first analyzing FOIA exceptions that complicate the interplay between the Privacy Act and FOIA in the PA context. Exceptions 6 and 7(c) exempt personnel files and law enforcement files from mandatory disclosure when their disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy,”50 but when asked to decide whether public or private interests hold more weight, the Supreme Court of the United States (SCOTUS) addressed FOIA Exception 7(c) regarding law enforcement files by looking to the purpose of the FOIA.51 In determining whether a disclosure was required or exempted, SCOTUS instructed the Government to look at whether disclosure would shed light on a Government agency or it was merely the provision of records that happened to be stored by law enforcement.52 Further, when considering whether FOIA created a blanket exemption for personnel records, SCOTUS, in Department of the Air Force v. Rose, affirmatively noted that FOIA did not create a blanket exemption for personnel records, but rather created a limited exemption requiring a balancing of interests.53 The Rose Court concluded, “Exemption 6 does not protect against disclosure every incidental invasion of privacy only such disclosures as constitute ‘clearly unwarranted’ invasions of personal privacy.”54

The Department of the Air Force has published regulatory guidance that directly addresses the SCOTUS Privacy Act analysis. The Air Force requires disclosure under FOIA when the public’s interest in disclosure of the investigation outweighs the individual’s privacy interest.55 The same Air Force regulation provides JAs with relevant factors to consider when determining whether a disclosure would constitute an unwarranted invasion of an accused’s privacy. These factors include, “the accused’s rank, duties, alleged offense(s), existing publicity about the allegation(s), and stage of the proceedings.”56 A plain reading of the Air Force instruction indicates that these factors address FOIA exceptions 6 and 7(c), but this is an analysis of when FOIA authorizes release, not when FOIA requires it.

There is a strong argument that the Privacy Act does not apply to the Government release of current newsworthy information, but not because of a FOIA requirement.57 In a case where Army officials released a general officer’s non-judicial punishment to the media after disposition,58 after dismissing the lawsuit on other grounds, the United States Court of Appeals for the Eleventh Circuit opined that this type of disclosure may be outside of the purpose of the Privacy Act.59 The court noted that the Privacy Act intended to stop the release of stale private information, not “current newsworthy information of interest to the community.”60

The takeaway for JAs advising in this space is to use the SCOTUS analysis outlined above to determine if FOIA permits or requires disclosure regardless of whether the high-profile investigation is current, newsworthy information. If an investigation is current and newsworthy, that should be incorporated into the FOIA analysis, not serve as a substitute for such analysis. This is particularly important when advising on PA during high-profile investigations because timely and fact-based command updates can significantly contribute to the public’s understanding of the operations or activities of the Army. Judge advocates should recognize this legitimate public and command interest and lean forward where appropriate.61 Judge advocates should acknowledge that although privacy interests are important and the body of law surrounding them is complex, a forward-leaning media strategy need not harm privacy interests of those involved in an allegation. It is possible to engage in such a strategy without naming any of the parties involved.62 This includes the subject(s) of the investigation. The next consideration for JAs advising on PA is UCI.

Unlawful Command Influence and Extrajudicial Statements

There is legal precedent that in some cases, a commander’s extrajudicial statements can constitute UCI.63 It appears at first glance that the mere possibility of UCI warrants risk-averse legal advice. However, a more nuanced review of UCI case law and applicable rules establishes the contrary. As discussed below, while commanders must be careful not to commit UCI during media engagements, they are not altogether prohibited from engaging in the first place.

Unlawful command influence is not cognizably raised until defense meets its burden of production.64 “The quantum of evidence necessary to raise [UCI] is the same as that required to submit a factual issue to the trier of fact.”65 Once the issue of command influence is cognizably raised,66 the Government has the burden to “prove beyond a reasonable doubt: (1) that the predicate facts do not exist; (2) that the facts do not constitute unlawful command influence; or (3) that the unlawful command influence . . . did not affect the findings and sentence.”67 “Proof beyond a reasonable doubt of any of these three factors is sufficient to rebut a prima facie case of unlawful command influence.”68 Practitioners must be cognizant that Article 37 of the Uniform Code of Military Justice now requires that the accused demonstrate that the alleged UCI materially prejudiced a substantial right before a finding or sentence of a court-martial may be held incorrect.69 Stated another way, for accused Service members to cognizably raise UCI, they must present some evidence of actual UCI before the burden shifts to the government as outlined above.

While courts review every allegation of UCI as a fact-specific determination,70 there is clear guidance for reviewing UCI where it intersects with pretrial publicity and a commander’s extrajudicial statements. A commander, or one acting with the mantle of command authority, can commit UCI when they orchestrate pretrial publicity to influence a case or a series of cases.71 However, the prohibition against UCI of this nature does not require commanders to refrain from addressing their concerns with the public “through press releases, responses to press inquiries, and similar communications.”72

SPC Vanessa Guillen. (Credit: Angie Thorne)

High-profile investigations often garner national media attention, which heightens the public’s interest in the general state of discipline, at least as it pertains to that command. Consequently, commanders have a legitimate interest in addressing the public on a wide array of issues during such cases, provided they relate back to some legitimate function of command.73 So long as commanders, or their PAOs, are not using press releases to put a finger on the scales of justice, they are free to use communications platforms to keep the public reasonably informed about the investigation. Commanders are not prohibited from providing updates to the public regarding ongoing criminal investigations. This should be a case-by-case determination made in consultation with the SJA and the PAO. To be in the best position to advise the CG on PA during high-profile investigations, these two command advisors should appreciate the legal parameters of UCI in this context and reflect upon the failures of the past ultraconservative approach. An SJA can advise the CG to take a forward-leaning PA strategy by the following: balancing the UCI-related legal considerations with the command’s interest in keeping the public adequately informed, explaining the process, and providing status updates.

The Marines United case is one example of a forward-leaning PA strategy amid a high-profile investigation.74 Marines United was a closed Facebook page comprised of tens of thousands of active-duty Service members and retirees. In January of 2017, a retired marine informed the Marine Corps that certain members of this group were sharing explicit images of female Service members.75 Early reporting on this incident suggested that hundreds or thousands of Marines were implicated in this criminal behavior when the actual number of dispositions linked to the crackdown of online-related misconduct totaled eighty.76 It included seven courts-martial, fourteen nonjudicial punishments, six administrative separations and twenty-eight adverse administrative actions.77

There are two important takeaways from the official PA response to the Marines United scandal. First, the Marine Corps got out in front of the issue early and condemned the actions of those Marines who were ultimately punished. Sergeant Major Ronald L. Green, the most senior enlisted Marine at the time, stated, “We need to be brutally honest with ourselves and each other: This behavior hurts fellow Marines, family members, and civilians. It is a direct attack on our ethos and legacy. . . . It is inconsistent with our [c]ore [v]alues, and it impedes our ability to perform our mission.”78 Sergeant Major Green directed these statements to the American public, and he made them while the investigation was still ongoing.

Second, the Marine Corps was able to inform the public of the actual scope of the online-related criminal misconduct. Rather than let a fact-free environment run rampant, the Marine Corps published the actual number of Marines United related dispositions, thus limiting the opportunities for the American public to speculate.79 The Marine Corps reinforced a values-based message to the American public and set the record straight regarding misinformation. Importantly, the command was able to pursue UCMJ action against the accused Marines despite making public statements that condemned the abhorrent behavior.

Another example of a timely, forward-leaning PA strategy occurred at Fort Sill in the Spring of 2021. A female Soldier stationed at Fort Sill for training reported that she was sexually assaulted on 27 March 2021.80 Less than one week later, Major General (MG) Ken Kamper released a statement detailing that the command cared for the victim, that they had immediately suspended the alleged perpetrators from duty, and swiftly launched a thorough CID investigation.81 Critically, MG Kamper expressed support and empathy for the victim when he said, “We’re proud of the courage she displayed in coming forward with these allegations. We will stay connected with this [S]oldier and her [F]amily.”82 MG Kamper accomplished all of this without naming the victim and the subject(s) of the investigation and thereby avoided implicating their privacy interests. While press conferences immediately following criminal allegations are rare,83 this is a prime example of a commander being transparent with the public during an ongoing criminal investigation. The amount and substance of information provided to the public should be narrowly tailored to the circumstances of each case and, in addition to Privacy Act and UCI concerns, the command should consider the accused’s right to a fair trial.

Pre-Trial Publicity and the Right to a Fair Trial

The doctrine of unfair pretrial publicity is based upon the constitutional right to due process under the Fifth Amendment.84 The defense may raise the issue of unfair pretrial publicity by demonstrating either presumed prejudice or actual prejudice. To establish presumed prejudice, the defense must show that the pretrial publicity (1) is prejudicial, (2) is inflammatory, and (3) has saturated the community.85 To establish actual prejudice, the defense must show that members of the court-martial panel had such fixed opinions that they could not judge the guilt of the accused impartially.86 Using these legal standards, the United States Court of Appeals for the Armed Forces (CAAF) reviewed the facts in United States v. Simpson.87

Staff Sergeant Delmar Simpson was a drill sergeant at the center of the Aberdeen sex scandal of 1996.88 He was one of twelve Soldiers charged with sex crimes related to what was referred to at the time as the largest sex scandal in the Army to date.89 Consequently, there was a blitz of media coverage for the associated courts-martial.90 Despite all the pretrial publicity, CAAF held that no actual or presumed prejudice occurred.91 Legal advisors must balance the requirement to limit prejudicial and inflammatory pretrial publicity with the command’s legitimate interest in increasing both transparency with the public and the public’s understanding of the military justice system and the state of discipline in the military.92

Regulation requires the U.S. Army “to communicate with its members, the U.S. public, and international publics.”93 Public affairs operations help to establish conditions that lead to confidence in the Army and its readiness to conduct a broad array of military missions.94 The release of accurate information pertaining to high-profile cases puts command actions in context, facilitates informed perceptions about the military justice system, counters misinformation and disinformation, and reinforces public support.95 Again, any statement made by the command during high-profile investigations should be narrowly tailored to these stated objectives and carefully balance the accused’s right to a fair and impartial proceeding.

Stick to the Facts while Shaping the Narrative

The starting point for any Public Affairs Guidance (PAG) for dealing with the media during high-profile investigations must include a plan for dealing with social media and misinformation. Retired General (GEN) Scott Miller was the commanding general of Fort Benning in 2015 during a social media blitz that included attacks against the first women who attended the U.S. Army Ranger School.96 Emotions ran high as there were entrenched opinions on both sides of the discussion, and the Army had to become social media savvy in short order.97 GEN Miller summed up his very direct approach to this problem when he stated, “Just make sure you stay with the facts. Don’t let a fact-free environment stay out there. There was a lot of misinformation out there . . . . You can ignore it[,] but conspiracy theories build up fast[,] and you need to address them early.”98 General Miller also brought in the media to report on the facts firsthand, which contributed to accurate, fact-based reporting. Judge advocates should incorporate GEN Miller’s guidance as they collaborate with PAO to develop strategies for dealing with the public and the media during high-profile investigations.

There are three basic components that JAs must include in their local PAG playbook. First, JAs should have a plan outlining the nature and extent of PAO collaboration and support during high-profile investigations. This plan should be the baseline for support, but it should, at a minimum, include personnel support and outline the nature and extent of legal advice rendered to the commander during high-profile investigations. Second, the OSJA must have a PA training plan that includes training on key legal issues and training with the local PAO on Army PA policy and regulations. Third, the plan should include a strategy for engaging with the public and the media during high-profile investigations. This strategy should also incorporate basic crisis management techniques. For the purposes of developing the PAG in this context, it is helpful to think of high-profile investigations as crisis communications events. Army regulations define crisis communications as those communications in response to sudden, unpredictable incidents or situations that “develop rapidly, have the ability to affect long-term public opinion and trust in an organization, and have the potential to create conditions of . . . military importance.”99

Taking care of Army families involved in the investigations needs to be a priority. The Guillen Family comfort each other after the unveiling of the SPC Vanessa Guillen gate at Fort Hood, Texas, on 19 April 2021. (Credit: SGT Melissa N. Lessard)

Collaboration with the PAO and Legal Support During High-Profile Investigations

The commander of a military organization is ultimately responsible for crisis communication.100 Public affairs officers at all levels serve as the principal communication advisors to command teams, advising commanders on all communication and PA requirements across all mission phases and domains.101 Consequently, the PAO is primarily responsible for advising the commander regarding communications and PA requirements during high-profile investigations.

Nonetheless, the PAO does not have the requisite legal training to navigate the complexities of how PA can implicate the Privacy Act, UCI concerns, or the accused’s right to a fair trial if the command ultimately prosecutes the accused. Judge advocates are of particular importance to the command and the command PAO in these areas. Building the PR team is the essential first step in preparing to deal with the public and the media during high-profile investigations.

When an SJA is first alerted to the possibility that a highprofile investigation may become a crisis communications event, they should immediately assign a JA to provide direct legal support to the command PAO.

Build the Team

When an SJA is first alerted to the possibility that a high-profile investigation may become a crisis communications event, they should immediately assign a JA to provide direct legal support to the command PAO. This concept of personnel support to the PAO is not without precedent in the Army or in the Department of Justice (DOJ). Army Regulation 27-10, Appendix L-5, contains guidance for the appropriate composition of a capital litigation team, and it contains a PA representative.102 The regulation further advises that the command should relieve the capital litigation public affairs representative of other duties to the maximum extent practicable.103 When a high-profile investigation reaches the point when it becomes a crisis communication event, the command should treat it as complex as a capital case, at least in terms of PA and media relations.

The Justice Manual for the DOJ outlines guidance for media coordination when a federal case garners interest from the news media. The DOJ’s Media Contacts Policy states that “[e]ach United States Attorney’s Office and DOJ component field office shall designate at least one person to act as a point of contact on matters pertaining to the media.”104 Even in the DOJ, where the primary mission is to prosecute cases, there is still a recognition that engaging with the media can become a full-time job and should require special emphasis.

Assigned PA representatives for high-profile investigations must, as their number one priority, immediately begin coordinating and information sharing with the PAO. Public affairs officials must seek out experts and either support those experts in their efforts to brief the media in support of media queries or request information and training to adequately fill that role.105 Put another way, when handling military justice (MJ) matters, the JA must either be prepared to brief the media directly106 or bring the PAO up to speed. A good example of the type of information sharing required when the PAO takes the lead is to educate the PAO on basic MJ terminology and processes so that the PAO is capable of fielding general inquiries about the process. The JA PA representative would then work in close consultation on all future inquiries to assist the PAO with more legally complex issues. Which type of PAO support that PA representatives provide is a case-specific determination made by their SJA.

The SJA should, if mission requirements allow and to the greatest extent practicable, assign a JA with experience in FOIA, the Privacy Act, MJ, and special victim support as the public affairs representative. Assigning the right JA is critical and SJAs should take care to ensure that the PA representative has the requisite maturity and overall experience to handle this mission. At a minimum, the JA should understand special victims support programs including, at a minimum, victim witness liaison (VWL) and special victims’ counsel (SVC) services.107 As the supervisory JA for the command, the choice regarding what JA to assign this critical role is within the SJA’s sole discretion and purview.108

This PA representative will work in close coordination with the trial team and will likewise be constrained by the rules of professional conduct for lawyers.109 The key difference between assigning the PA representative as a primary duty versus an additional duty to the trial counsel is the amount of time dedicated to this essential mission. The SJA must make this critical personnel decision as soon as he or she becomes aware of the possibility that a high-profile investigation may become a crisis communications event. Managing personnel within an OSJA presents many difficult choices and there is no “good time” to face this type of decision. However, this personnel decision can become less difficult if the SJA makes it immediately and aligns it with reporting requirements to the Office of The Judge Advocate General (OTJAG), Criminal Law Division (CLD).

Coordinate with Higher

Army Regulation 27-10 mandates that the SJA coordinate with OTJAG, CLD, prior to making any decision pertaining to interviews or responses to the news media.110 Forming the PA team does not directly implicate this reporting requirement, because if the SJA is addressing this matter in a timely manner, it should be done before media inquiries. However, the best practice here is to notify CLD at the earliest opportunity because that enables TJAG to track the high-profile case and potentially lean forward on critical decisions that may present themselves later in the process. Thus, to facilitate this forward-leaning strategy, SJAs should notify either TJAG or his executive officer (XO) in addition to the requirements outlined in AR 27-10.

An added benefit of early reporting is that the SJA can potentially tap into the resources of the Army JAG Corps by also coordinating with OTJAG, Personnel, Plans, and Training Office (PPTO)111 and the Trial Counsel Assistance Program (TCAP).112 If the SJA is struggling to resource the PA team internally, he or she can leverage PPTO to potentially resource the requirement external to the OSJA.113 Whether PPTO can assist with external resources is a case-specific determination. Additionally, if PPTO cannot assist, TCAP may be able to resource this critical personnel requirement with either training assistance or direct litigation support. Early reporting and prior coordination will put the SJA in the best possible position to receive this level of support. As with most military missions, prior planning and early reporting will place the OSJA in the best posture to receive external personnel support and to implement training programs that prepare personnel for this unique mission.

Training the OSJA Public Relations Team

The SJA is responsible for ensuring that all legal personnel under his or her supervisory chain are adequately trained to accomplish the legal mission.114 This is done through formal schooling and local training.115 The local training mission for MJ matters is typically delegated to the chief of MJ (COJ). It is critical that COJs develop a MJ training plan that nests within the SJA’s larger PA training initiative. This PA training should have three distinct training objectives.

Training Focused on How Statements Can Impact the Legal Process

The first training objective should focus on the ways that statements made by the commander and JAs impact high-profile investigations and courts-martial. This training should contain three classes. The first class should cover UCI. The second should cover the rules of professional conduct for lawyers. The final class should cover the accused’s right to a fair trial. These three classes should build off each other to work in concert to accomplish the first training objective.

It is critically important for JAs advising on PA during high-profile investigations to possess a comprehensive understanding of UCI as it pertains to pretrial publicity and the accused’s right to a fair trial. The first training objective must contain a thorough analysis of UCI case law and focus on the 2019 amendments to Article 37, UCMJ, particularly the requirement to demonstrate actual prejudice.116

Judge advocates must also have a firm grasp of the rules of professional conduct for lawyers. This second class should emphasize Rule 3.6 and Rule 3.8, since those rules cover a JA’s duty as it relates to extrajudicial statements.117 While the investigative phase of the case may not implicate these rules, it is important to plan for the possibility that an investigation may evolve into a court-martial. In those circumstances, your JAs will be prepared to support the PAO during the trial. A high-profile investigation may quickly become a high-profile court-martial.

Training Focused on Public Affairs During Investigations

The second training objective should include cross-section training with the command PAO as the lead. This training objective should focus on PA, which as noted above, is defined as any communication activity with internal or external audiences.118 For these training purposes, the PA training should emphasize communications strategies that are related to high-profile investigations.

Command PAOs receive specialized training through the Defense Information School and are primarily responsible for the public affairs mission.119 Furthermore, the PAO is responsible for PA training for commanders and other members of the command, including JAs.120 This training should focus on principles of crisis management and the fundamentals of PA during crisis communications. This training should occur before a crisis communications event materializes in order to posture the PA team to quickly and confidently respond when needed. As with all Army training, this should be done in preparation for the mission, not after the mission is already underway.

Training Focused on Victim Services and Taking Care of the Family

The third training objective, with arguably the highest visibility, should focus on victim services and include cross training with the regional special victims counsel (SVC). The Regional SVC is likely the most up to date on changes in the law as it pertains to victim rights within the OSJA, so the OSJA should leverage them to the greatest extent possible. The training should also include the special victims’ prosecutor (SVP). By leveraging these local subject matter experts, the OSJA can put together valuable training that provides JAs with tips that they can incorporate into their practice immediately.

At a minimum, this training should focus on how the various stakeholders in the victim’s services arena work collaboratively to care for victims and their Families. As an example, JAs train on what SHARP services are available and how unit victim advocates (VA) fit into the picture.121 Additionally, JAs should train on what services the sexual assault response coordinator (SARC) and SVC provide and to whom they provide it.122 The training should place special emphasis on how all these important players work together to care for victims. Lastly, JAs must understand what tools are available to commanders vis-à-vis victim care. A thorough understanding of expedited transfers,123 command-issued protective orders,124 safety reassignments,125 and other command-initiated programs is vital to the success of the PA representative. With the PA team set and supporting JAs trained, the main effort shifts to advising on the development of a forward-leaning PA strategy.

Developing Public Affairs Responses and Public Relations Strategies

The media frenzy surrounding the disappearance and murder of SPC Vanessa Guillén and subsequent proliferation of misinformation on social media illustrates the importance of timely, compassionate, and effective PA during high-profile investigations. It is the earliest opportunity for commanders to positively impact public perceptions and discourse.

Focus on the Investigative Process

Any commentary or public statement pertaining to an ongoing criminal investigation is challenging because of sensitive law enforcement concerns. Army Regulation 360-1 acknowledges this fact and requires prior coordination with the United States Army Criminal Investigative Command (USACIC) before the public release of information about criminal investigations.126 After prior coordination with USACIC, regulations still constrain the PAO and they generally cannot release information that would violate the Privacy Act or impede an ongoing investigation.127 For example, during a pending murder investigation, CID may not want to share the identity of a suspect with the command or the media for fear that the suspect might become aware of the investigation and subsequently change their behavior. As another example, CID may not want the names of cooperating witnesses to be released out of concern for the witnesses’ safety. These witnesses would also have certain privacy rights and would generally be protected from having their names released.128

Planning for a high-profile investigation must include a public affairs strategy. No public affairs strategy is complete if it does not include social media engagement. (Credit: Patrick Buffett)

Other organizations struggle with the same considerations when faced with PA during criminal investigations. For example, the DOJ has a policy that, generally, the department will not confirm the existence of, or otherwise comment about, ongoing investigations.129 Unless exceptions apply, DOJ personnel “shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress before charges are publicly filed.”130 These policies address many of the same concerns as various Army policies and regulations. However, there is one major distinction. The DOJ policy allows for an exception: when the community needs reassurance that “the appropriate law enforcement agency is investigating a matter, or where release of information is necessary to protect the public safety, comments about or confirmation of an ongoing investigation may be necessary” and approved in accordance with their policy.131

Much like the DOJ exception, commanders need maneuver space to focus PA efforts on the investigative process and relationship building during the criminal investigation. It is essential that the commander communicate early and often that a thorough investigation is underway and that the commander is committed to supporting victims and their Families.132 Focusing on the investigative process intentionally obscures the substantive details, but that does not mean that these efforts are ineffective. The command can highlight its commitment to justice and that the investigation will proceed without constraint.133 The commander can further highlight that he or she is making every resource available to CID to bring a quick resolution to the investigation. In the end, it is about messaging and getting out in front of the harmful narratives.

The command’s public communications should also include substantive investigative efforts to the greatest extent possible when it would not prejudice the ongoing investigation.134 Unfortunately, there is no definition for what it means to “prejudice an ongoing investigation” so that determination is largely up to CID during the investigative phase.135 To ensure that the commander maintains a forward-leaning PA strategy during high-profile investigations, it is critical that the SJA coordinate with CID to determine what information is a sensitive law enforcement matter, the release of which would prejudice the investigation. Critically, the commander must view assertions that law enforcement information is not subject to release with a skeptical eye. If nothing more, this is a vital check on the system that requires collaborative analysis between investigators and JAs. The command’s SJA must coordinate with the SJA for CID command to work with investigators in a collaborative and mutually beneficial way. This coordination at the SJA level can serve the dual purpose of both helping the command develop a forward-leaning PA strategy while also safeguarding law enforcement equities. Maximizing the substance of command communications is important, but SJAs should take note that this effort will be largely wasted if not accompanied by strong relationship building throughout the investigative process.

Build Relationships and Support the Family

The first and most important step to relationship building is to make it a priority. Relationship building should not be an afterthought; it must be a primary line of effort. The most analogous situation to the type of relationship building that coordinating with the Family members of victims requires is found in the Army’s Casualty Assistance Program. In casualty situations, one of the Army’s key objectives is to keep the next of kin (NOK) informed of the status of “any ongoing investigations and assist with obtaining copies of final investigation reports.”136 The casualty assistance officer (CAO) assigned to the NOK must be “emotionally mature, courteous, helpful, and compassionate toward the NOK,” as the CAO is responsible for reflecting the Army’s concern for its Soldiers and their Families.137 If the Army is to emulate this program and apply it to caring for Family members during high-profile investigations when a victim is missing, commanders should assign an assistance officer to help the Family manage the situation. This should occur in those investigations in which the victim is missing, as they would receive this support through various victim-focused services. The assistance officer must thoroughly understand victim services and criminal investigations before there is an incident.

The Army’s Casualty Assistance Program embodies its commitment to relationship building and care for fallen Soldiers and their Families in the requirements for CAOs and their scope of duties.138 This is the type of commitment that commanders must make to the Families of crime victims in high-profile investigations. Regardless of whether the commander has information that the victim is deceased or missing, the commander should nonetheless appoint an assistance officer akin to the CAO to the Family to help them navigate the criminal investigative process. This will further demonstrate the commander’s commitment to keeping the victim’s Family fully informed and supported throughout the process. Importantly, the tone and tenor of the support offered to Family members is almost as important as the support itself. This PA strategy must have a human touch139 because supporting the Family “is the mission” and the PA component is secondary.

Timeliness of the Commander’s Public Relations

While actively supporting the Family, the commander should be simultaneously focused on the timeliness of public updates. The command needs to get out in front of misinformation and disinformation before false narratives take root in the public discourse surrounding the investigation. This is especially true of high-profile criminal investigations, which commanders should treat as a crisis communication event.140 How the commander chooses to address these situations is critically important. Social media platforms are the fastest way to inform and educate the public regarding matters in emerging or breaking news.141 Crisis communication surrounding a high-profile investigation must include social media operations that are integrated into the PA planning efforts.142 A key consideration here is that social media managers must not post details about an ongoing investigation.143 However, there are many ways to use social media in the context of high-profile investigations without posting details. Judge advocates must coordinate with the PAO to ensure that any PA strategy employing social media is done in accordance with Army regulations and policy.144

Ultimately, balancing how to use social media in conjunction with other PA strategies is a commander’s decision made in consultation with his or her PAO. Understanding the reach of social media and incorporating its use into PA strategies requires more than being aware of the misinformation and disinformation. It requires active engagement. Leveraging a forward-thinking PA strategy is critical to shaping the narrative and addressing misinformation and disinformation, and commanders should be empowered to engage in the information space in a proactive way.

Conclusion

The ubiquity of social media has fundamentally changed the way that the American people communicate and receive information.145 Leaders must develop PA strategies to account for this fact. Failure to do so cedes the information space to uninformed individuals and advocates who fill that void with misinformation and disinformation. These social media campaigns are detrimental to the Army’s interests and to commanders’ ability to maintain good order and discipline. The Army’s most recent and notorious example of this hard truth took place at Fort Hood. The failure to develop a timely communications strategy in the wake of the disappearance and murder of SPC Vanessa Guillén resulted in the loss of trust and confidence in Fort Hood and the Army.146

The Army must adapt and update its approach to PA in high-profile investigations to bolster the American public’s confidence in commanders’ ability to promote and maintain good order and discipline in the Army. Staff judge advocates must understand the legal fundamentals that protect the rights of the accused and the integrity of criminal investigations. However, we must not be so conservative as legal advisors that we hamper the commander’s maneuver space to stop disinformation and correct misinformation. TAL

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LTC Lister is the Chair of the Criminal Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

MAJ Morman is a professor in the Criminal Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

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Notes

1. General John M. Murray, Army Regulation (AR) 15-6 Investigation – Fort Hood’s Command Involvement in, and Response to, the Disappearance and Death of SPC Vanessa Guillén and Other Specific Topic Areas 4 (5 Mar. 2021) [hereinafter General Murray AR 15-6 Investigation].

2. See id.

3. Id. at 1.

4. Id. at 4.

5. See Indep. Rev. Comm’n on Sexual Assault in the Mil., Hard Truths and the Duty to Change: Recommendations from the Independent Review Commission on Sexual Assault in the Military 20 (July 2, 2021) [hereinafter IRC Report] (finding that trust between victim service members and their commanders is broken because junior enlisted personnel interviewed do not trust their commanders to do justice in sexual harassment and sexual assault cases across the services).

6. Disinformation, Merriam-Webster, https://www.merriam-webster.com/dictionary/disinformation (last visited Nov. 21, 2022). See Joint Chiefs of Staff, Joint Pub. 3-61, Public Affairs, at III-3 (19 Aug. 2016) [hereinafter Joint Pub. 3-61] (describing disinformation as analogous to propaganda and explaining that accurate and timely public information is an effective counter).

7. Misinformation, Merriam-Webster, https://www.merriam-webster.com/dictionary/misinformation (last visited Nov. 21, 2022). See Joint Pub. 3-61, supra note 6, at F-11 (explaining that a method to counter misinformation is to correct it, implying that the term is used when misleading information is propagated).

8. The Army defines “public affairs” as any communication activity with internal or external audiences. See U.S. Dep’t of Army, Reg. 360-1, The Army Public Affairs Program para. 2-2(e)(1) (8 Oct. 2020).

9. U.S. Dep’t of Army, Pub. 5-19, Risk Management para. 1-38 (8 Sept. 2014) [hereinafter DA Pub. 5-19]. The Army defines catastrophic in the risk management context as severity that occurs when “consequences of an event, if it occurs, are expected to include death, unacceptable loss or damage, mission failure, or the loss of unit readiness.” Id.

10. Id. para. 1-7 tbl.1-1. The risk assessment matrix in Table 1-1 is comprised of a vertical and horizontal axes, with the probability of the risk running along the horizontal axis and the severity or expected consequence running along the vertical axis. The level matrix provides a risk level where the probability intersects with the severity or expected outcome.

11. Id. paras. 1-6 to 1-7.

12. See id. para. 1-7 tbl.1-1.

13. See General Murray AR 15-6 Investigation, supra note 1, at 194. General Murray found by a preponderance of the evidence that social media presented a huge challenge for the command at Fort Hood. He further found that social media filled a void in command messaging that allowed a negative narrative about Fort Hood and the U.S. Army.

14. See Fort Hood Indep. Rev. Comm., Report of the Fort Hood Independent Review Committee 84 (Nov. 6, 2020) [hereinafter FHIRC Report]. The committee found that from the time of SPC Guillén’s disappearance on 22 April 2020, through the remainder of the spring and summer months, the Fort Hood PAO found itself unable to adequately inform the public and pragmatically inform public perception. The facts became largely irrelevant as a groundswell of support for false theories and poorly informed accusations took root through social media outlets. Id.

15. Telling the Army Story, Army Pub. Aff., https://www.army.mil/publicAffairs/ (last visited Nov. 21, 2022).

16. FHIRC Report, supra note 14, at 83 (quoting The United States Army, Army Pub. Aff., https://www.army.mil/publicaffairs).

17. See Off. of The Judge Advoc. Gen., U.S. Army, Judge Advocate Legal Service Publication 1-1, Personnel Policies 33 (June 2020) [hereinafter Pub. 1-1] (outlining the scope of the SJA’s responsibilities as the senior legal advisor to the command).

18. See General Murray AR 15-6 Investigation, supra note 1, at 183. General Murray recommends changes to Army Command Policy that “holds commanders accountable for protecting the reputation of their units and the Army by actively engaging the public through timely and accurate information-sharing while maintaining security and privacy.” Id. at 196 (emphasis added).

19. See id. at 194.

20. See, e.g., FHIRC Report, supra note 14, at 82.

21. See General Murray AR 15-6 Investigation, supra note 1, at 4.

22. General Robert B. Abrams, Social Media; Senior Leaders Need to Get on the Bus, The Green Notebook (Oct. 8, 2019), https://fromthegreennotebook.com/2019/10/08/social-media-senior-leaders-need-to-get-on-the-bus.

23. See Lieutenant Colonel Denise R. Lind, Media Rights of Access to Proceedings, Information, and Participants in Military Criminal Cases, 163 Mil. L. Rev. 1, 5 (2000). Judge Lind opines that the services understand that the days of “no comment” are gone due to recent media scrutiny in military justice cases. Id. See also Joint Pub. 3-61, supra note 6, at I-4 (describing the complexity of the current media landscape).

24. See, e.g., Friends, Family of Missing Soldier Vanessa Guillen Gather Outside Fort Hood Hoping for Answers, Fox News (June 12, 2020), https://www.fox7austin.com/news/friends-family-of-missing-soldier-vanessa-guillen-gather-outside-fort-hood-hoping-for-answers.

25. See, e.g., Update on Missing Ft. Hood Soldier Vanessa Guillen – 6/23/2020, Fox News (June 23, 2020), https://www.fox7austin.com/video/699283. During a 23 June press conference, a U.S. Representative, speaking on behalf of the Guillén Family, made several references to someone important giving her information and that, in her view, this source confirmed that the Army was lying and trying to cover something up.

26. See, e.g., Nat’l Def. Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, §§ 531-539C, 135 Stat. 1541, 1692-99 (2021) [hereinafter NDAA 2022] (changing how charges are referred to trial by court-martial for covered offenses by removing commanders from the process and vesting that authority in JAs).

27. On the official website of Senator Kirsten Gillibrand, her office outlines that she first introduced the Military Justice Improvement Act in May 2013. See Gillibrand Statement on Inclusion of Military Justice Improvement and Increasing Prevention Act in NDAA, Kirsten Gillibrand U. S. Sen. for N.Y. (July 22, 2021), https://www.gillibrand.senate.gov/news/press/release/gillibrand-statement-on-inclusion-of-military-justice-improvement-and-increasing-prevention-act-in-ndaa.

28. On the official website for Congresswoman Jackie Speier, her office outlines a bipartisan bill named after Specialist Vanessa Guillén that would strip from commanders the decision to refer certain charges to trial by court-martial. Speier, Turner Introduce Bipartisan Vanessa Guillén Military Justice Improvement and Increasing Prevention Act to Remove Sexual Assault Prosecution Decisions from the Chain of Command, Congresswoman Jackie Speier (June 23, 2021), https://speier.house.gov/press-releases?ID=27875DF4-BA18-4608-BEDF-364B34F2FDC8.

29. See, e.g., LULAC Launches #La Quiero Viva Campaign for Missing Latina Soldier Vanessa Guillén, League of United Latin American Citizens (June 28, 2020), https://lulac.org/news/pr/LULAC_Launches_La_Quiero_Viva_Campaign_For_Missing_Latino_Soldier_Vanessa_Guillen.

30. See Melanie Lawson (@MelanieLawson13), Twitter (July 3, 2020, 5:19 PM), https://twitter.com/MelanieLawson13/status/1279162777735749632 (tweeting “LULAC president urges Latinas not to enlist in the military after Vanessa Guillen’s disappearance” and linking the corresponding LULAC article with an image of SPC Vanessa Guillen on the cover).

31. See, e.g., Haley Britzky, The Army Vowed Change After Vanessa Guillén’s Murder. One year later, it’s Just Getting Started, Task & Purpose (Apr. 22, 2021, 10:49 AM), https://taskandpurpose.com/news/murder-of-vanessa-guillen. Advocates for change in the wake of SPC Vanessa Guillén’s murder focus their efforts on political change.

32. See, e.g., ABC13 Houston (@abc13houston), Twitter (July 3, 2020, 4:56 PM) https://twitter.com/abc13houston/status/1279157194236268545 (tweeting “LULAC president urges Latinas not to enlist in the military after Vanessa Guillen’s disappearance” and linking the corresponding LULAC article with an image of SPC Vanessa Guillen on the cover).

33. See generally General Murray AR 15-6 Investigation, supra note 1 (discussing the blanket news coverage of SPC Vanessa Guillén’s disappearance and murder). See also FHIRC Report, supra note 14, at 86 (discussing the extensive news reporting around Vanessa Guillén’s case).

34. See, e.g., Rebecca Lopez, LULAC President Urges Latinas not to Join the Military After the Disappearance of Vanessa Guillén, Kens5 (June 29, 2020, 7:23 PM), https://lulac.org/news/in_the_news/lulac_president_urges_latinas_not_to_join_the_military_after_the_disappearance_of_vanessa_guillen [hereinafter LULAC Press Release].

35. See FHIRC Report, supra note 14, at 189 (explaining that the truth about SPC Vanessa Guillén’s case was overshadowed by gross speculation, viral storytelling and false narratives).

36. See FHIRC Report, supra note 14, at 188.

37. See, e.g, FHIRC Report, supra note 14, at 4.

38. See Privacy Act of 1974, 5 U.S.C. § 552a(b) (2019) [hereinafter Privacy Act] (“No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.”). See also U.S. Dep’t of Army, Reg. 25-22, The Army Privacy Program para 7-1 (22 Dec. 2016).

39. Freedom of Information Act, 5 U.S.C. § 552 (2016).

40. United States v. Simpson, 58 M.J. 368, 374-75 (C.A.A.F. 2004).

41. See id. at 375-76.

42. Extrajudicial, Merriam-Webster, https://www.merriam-webster.com/dictionary/extrajudicial (last visited Nov. 21, 2022).

43. Simpson, 58 M.J. at 372 (stating that the doctrine of unfair pretrial publicity is based upon the constitutional right to due process under the Fifth Amendment of the U.S. Constitution).

44. See, e.g., Major Golsteyn’s First TV Interview Since Being Charged in the Death of a Suspected Taliban Bomb Maker, Fox News (Feb. 10, 2019), https://video.foxnews.com/v/6000490779001#sp=show-clips. During a televised interview, Major Golsteyn makes certain allegations of unlawful pretrial punishment, and the Army issued no comment.

45. See, e.g., Dan Lamothe, Matt Golsteyn Planned to Join the CIA and Go to Iraq. Now He Faces a Murder Charge, Wash. Post (Feb. 9, 2019, 12:06 PM), https://www.washingtonpost.com/world/national-security/they-do-not-obey-their-own-rules-soldier-facing-murder-case-says-he-must-defend-himself-against-the-army/2019/02/09/a4cdb5b2-2baf-11e9-97b3-ae59fbae7960_story.html. The article quotes Army spokesman Lieutenant Colonel Loren Bymer, who stated, “As an active law enforcement matter, the U.S. Army cannot comment on or release information related to the case.”

46. 5 U.S.C. § 552a(b) (2019).

47. See id. at § 552a(b)(2).

48. See News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1189 (11th Cir. 2007) (“The net effect of the interaction between the two statutes is that where the FOIA requires disclosure, the Privacy Act will not stand in its way, but where the FOIA would permit withholding under an exemption, the Privacy Act makes such withholding mandatory upon the agency.”).

49. See id.

50. U.S. Dep’t of Just. v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 770 (1989). “[W]hether disclosure of a private document under Exemption 7(c) is warranted must turn on the nature of the requested document and its relationship to ‘the basic purpose of the [FOIA] to open agency action to the light of public scrutiny.’” Id. at 772 (citation omitted).

51. Id. at 772.

52. See id. at 780. (“[A] third party’s request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen’s privacy, and that when the request seeks no ‘official information’ about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is ‘unwarranted.’”).

53. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 371-72 (1975).

54. Id. at 382.

55. See U.S. Dep’t of Air Force, Instr. 51-201, Administration of Military Justice para. 34.2.1 (14 Apr. 2022) [hereinafter AFI 51-201].

56. Id. para. 34.2.1.1.

57. See Cochran v. United States, 770 F.2d 949, 959 (11th Cir. 1985).

58. One should note that at the disposition phase of an investigation, meaningful engagement with the media remains important, but the purpose of this article is to inform the SJA during the investigation phase. For information regarding privacy interests after disposition, see Memorandum from The Judge Advoc. Gen., U.S. Army, to Judge Advoc. Legal Servs. Pers., subject: Policy Memorandum 22-04 – Protecting Personal Privacy and Communication with the Media (1 Mar. 2022).

59. Cochran, 770 F.2d 949, 959 (11th Cir. 1985).

60. Id.

61. See Schmidt v. U.S. Air Force, No. 06-CV-3069, 2007 U.S. Dist. LEXIS 69584, at *31-32 (D. Ill. Sept. 20, 2007) (holding that although Major Schmidt had a legitimate privacy interest in keeping his disciplinary records confidential, the competing public interest in disclosure clearly outweighed said interest).

62. See, e.g., text accompanying notes 76-79.

63. United States v. Simpson, 58 M.J. 368, 374-75 (C.A.A.F. 2004).

64. United States v. Ayala, 43 M.J. 296, 299 (C.A.A.F. 1995).

65. Id. at 300 (citing United States v. Cruz, 20 M.J. 873, 886 (A.C.M.R. 1985)).

66. 10 U.S.C. § 837(c) (2000) (“No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section unless the violation materially prejudices the substantial rights of the accused.”).

67. United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999).

68. United States v. Simpson, 55 M.J. 674, 685 (A. Ct. Crim. App. 2001).

69. 10 U.S.C. § 837(c).

70. See United States v. Simpson, 58 M.J. 368, 375-76 (C.A.A.F. 2004).

71. Id. at 374.

72. Id.

73. See id.

74. The “Marines United case” was an investigation into a group of active duty and retired Marines who were members of a closed Facebook page with over 30,000 members. A smaller number of those members shared nude photographs of female Marines and other women. Certain members also made threats of physical violence against the whistle blower who reported this group to Marine leadership. A criminal investigation ensued, which resulted in disciplinary action for certain perpetrators. See Andrew deGrandpre & Jeff Schogol, A Nude Photo Scandal Has Shaken the Entire Marine Corps, Marine Corps Times (Mar. 5, 2017, 2:45 AM), https://www.marinecorpstimes.com/news/your-marine-corps/2017/03/05/a-nude-photo-scandal-has-shaken-the-entire-marine-corps.

75. Id. See also Shawn Snow, Seven Marines Court-Martialed in Wake of Marines United Scandal, Marine Corps Times (Mar. 1, 2018), https://www.marinecorpstimes.com/news/your-marine-corps/2018/03/01/seven-marines-court-martialed-in-wake-of-marines-united-scandal.

76. Snow, supra note 71.

77. Snow, supra note 71.

78. See Thomas J. Brennan, An Attack From Within: Male Marines Ambush Women in Uniform, The War Horse (Mar. 4, 2017), https://thewarhorse.org/an-attack-from-within-male-marines-ambush-women-in-uniform.

79. See Snow, supra note 71.

80. Army: Soldier Says She Was Sexually Assaulted at Fort Sill, AP News (Apr. 4, 2021), https://apnews.com/article/us-news-army-oklahoma-sexual-assault-lawton-ec74544781e627a640b7470661264f31.

81. Id.

82. Steve Beynon, Fort Sill Army Trainers Suspended Amid Allegations of Trainee’s Sexual Assault, Military.com (Apr. 2, 2021), https://www.military.com/daily-news/2021/04/02/fort-sill-army-trainers-suspended-amid-allegations-of-trainees-sexual-assault.html.

83. Id.

84. See United States v. Simpson, 58 M.J. 368, 372 (C.A.A.F. 2004) (detailing the source of the doctrine of unfair pretrial publicity as it pertains to criminal trials).

85. See United States v. Curtis, 44 M.J. 106, 139 (C.A.A.F. 1996) (citing Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554, (1976)) (outlining the standard that the accused must prove to established presumed prejudice of pretrial publicity).

86. See id. at 139 (citing Mu’Min v. Virginia, 500 U.S. 415, 430 (1991)).

87. United States v. Simpson, 58 M.J. 368, 372 (C.A.A.F. 2004).

88. Jay Apperson & Scott Shane, Who is Sgt. Delmar G. Simpson? Conflicting Accounts of a Man at the Center of the Aberdeen Storm, The Baltimore Sun (Nov. 29, 1996, 12:00AM), https://www.baltimoresun.com/news/bs-xpm-1996-11-29-1996334006-story.html.

89. See generally Three Soldiers Arraigned in U.S. Army Sex Scandal, CNN (Dec. 6, 1996), http://www.cnn.com/US/9612/06/aberdeen.arraign/index.html. Reporting labeled the Aberdeen sex scandal the Army’s biggest sex abuse scandal on record. The U.S. Army recalled a retired Army major general to active duty in order to head a military-civilian panel tasked with looking into allegations of sexual abuse in the military. Id.

90. See United States v. Simpson, 55 M.J. 674, 679-82 (A. Ct. Crim. App. 2001) (detailing the nationwide media blitz that surrounded the investigation and subsequent court-martial); Simpson, 58 M.J. at 372 (reviewing the lower court’s assessment of the “nationwide media blitz”).

91. Simpson, 58 M.J. at 373.

92. See U.S. Dep’t of Army, Reg. 27-10, Military Justice para. 5-67a (20 Nov. 2020) [hereinafter AR 27-10 (2020)] (outlining that those responsible for administering military justice and those providing information to the public pertaining to military justice must “strike a fair balance among the following: protection of individuals accused of offenses, the presumption of innocence until guilt is proven, public understanding and transparency of the military justice system, and the state of discipline in the military”).

93. See U.S. Dep’t of Army, Reg. 360-1, The Army Public Affairs Program para. 1-6a (8 Oct. 2020) [hereinafter AR 360-1] (“The U.S. Army is required, according to DoDI 5400.13, to communicate with its members, the U.S. public, and international publics. The proactive release of accurate information puts U.S. military operations in context, facilitates informed perceptions about military operations, counters misinformation and disinformation, reinforces public support to Army Title 10, United States Code (10 USC) responsibilities, and helps achieve national, strategic, operational, and tactical objectives.”).

94. See U.S. Dep’t of Army, Field Manual 3-61, Communication Strategy and Public Affairs Operations para. 1-1 (25 Feb. 2022) [hereinafter FM 3-61] (setting forth the communication strategy for the Army and the intended goal of “establish[ing] conditions that lead to trust and confidence in the Army and its readiness to conduct multi-domain operations, deter competitors, and defeat adversaries”).

95. AR 360-1, supra note 93, para. 1-6a.

96. Chuck Williams, Part 4: Social Media Uproar Became a Concern During Ranger School Gender Integration in 2015, WBL.com (Sept. 1, 2020, 4:52AM), https://www.wrbl.com/news/military/fighting-for-the-tab/part-4-social-media-uproar-became-a-concern-during-ranger-school-gender-integration-in-2015.

97. Id.

98. Id.

99. U.S. Dep’t of Army, Reg. 360-1, The Army Public Affairs Program para. 7-3 (8 Oct. 2020).

100. Id.

101. Id. para. 1-6e.

102. See U.S. Dep’t of Army, Reg. 27-10, Military Justice para. L-5b (20 Nov. 2020) (outlining the recommended composition of capital litigation team to the SJA but emphasizing that a case-specific determination should be conducted and resourced individually).

103. See id. (suggesting that all members designated to a capital litigation team be relieved from other duties).

104. See U.S. Dep’t of Justice, Justice Manual § 1-7.200 (Apr. 2018) [hereinafter Justice Manual] (This Department of Justice policy acknowledges the importance of a single point of contact within each field office for matters pertaining to the media.).

105. See AR 360-1, supra note 93, para. 6-3 (“PAOs will seek out experts to brief the media in support of media queries or request for further information.”). Legal expertise or expertise on court-martial procedure clearly fall within this provision.

106. Note that directly briefing media requires coordination with OTJAG-CLD. See discussion infra “Coordinate with Higher” Section.

107. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66 § 1701(a)(1), 127 Stat. 672, 952 (2013) (establishing the special victim counsel under the Legal Assistance program authority).

108. See U.S. Dep’t of Army, Reg. 27-1, Judge Advocate Legal Services para. 2-11a(2) (24 Jan. 2017) [hereinafter AR 27-1] (defining the term supervisory judge advocates, which in most cases is the SJA, who has the “authority over, or responsibility for, the direction, coordination, evaluation, or assignment of responsibilities and work of subordinate lawyers, paralegals and other non-lawyer assistants”).

109. See U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers app. B, r. 3.6(a) (28 June 2018) [hereinafter AR 27-26] (“A lawyer who is participating or has participated in the investigation or litigation of a matter, to include adverse administrative or disciplinary proceedings, shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter or an official review process thereof.”); id. at app. B, r. 3.8(f) (“A Trial Counsel in a criminal case shall: . . . except for statements that are necessary to inform the public of the nature and extent of the Trial Counsel’s actions and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the Trial Counsel in a criminal case from making an extrajudicial statement that the Trial Counsel would be prohibited from making under Rule 3.6 or this Rule.”).

110. See AR 27-10, supra note 103, para. 5-67(b)(5) (specifically requiring coordination with OTJAG-CLD prior to conducting interviews with, or giving response to, the news media).

111. AR 27-1, supra note 108, para. 2-8 (establishing that the Chief, PPTO, will act pursuant to authority delegated by TJAG to manage and direct the JAGC).

112. See U.S. Dep’t of Army, Reg. 27-10, Military Justice para. 21-2 (20 Nov. 2020) (“TCAP’s mission is to provide assistance, resources, and support for the prosecution function throughout the Army and to serve as a source of resolution of problems encountered by trial counsel.”). See also id. para. 21-5b (“TCAP counsel and GAD counsel are available for on-site assistance in unique or difficult cases. SJAs may request such assistance through the Chief, TCAP; the Chief, GAD; and the Assistant Judge Advocate General for Military Law and Operations.”).

113. See id. para. 28-6a (“Prosecution support. SJAs will ensure that prosecution teams are resourced. The SJA will use internal resources to the maximum extent practicable. For additional personnel support, the SJA may coordinate with PPTO and TCAP.”). See also AR 27-1, supra note 104, para. 2-8.

114. See AR 27-1, supra note 108, para. 2-11c (establishing that supervisory judge advocates must ensure that legal personnel are adequately trained to accomplish the legal mission, including through local training and attendance at TJAGLCS courses).

115. Id.

116. See 10 U.S.C. § 837(c) (2020).

117. See AR 27-26, supra note 109, app. B, r. 3.6(a), 3.8(f).

118. See U.S. Dep’t of Army, Reg. 360-1, The Army Public Affairs Program para. 2-2e(1) (8 Oct. 2020).

119. See id. para. 1-10b.

120. See id. para. 2-2e(1)(d).

121. See U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 7-1 to 7-11 (24 July 2020) [hereinafter AR 600-20] (outlining the parameters for the Army SHARP program including, but not limited to, the scope, purpose, eligibility, program fundamentals, and other key aspects of the program).

122. See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66 § 1701(a)(1), 127 Stat. 672, 952 (2013) (establishing the special victims’ counsel under the Legal Assistance Program authority).

123. See U.S. Dep’t of Def. Instr. 6495.02, Sexual Assault Prevention and Response: Program Procedures vol. 1, encl. 5, para. 6 (28 Mar. 2013) (C7, 6 Sept. 2022) [hereinafter DoDI 6495.02] (outlining the authority for an expedited transfer and when such a move is appropriate).

124. See id. (establishing a commander’s authority to issue a military protective order). See also 10 U.S.C. § 806b(a)(1) (2019) (establishing a victim’s right to be reasonably protected from an accused).

125. U.S. Dep’t of Army, Reg. 614-200, Enlisted Assignments and Utilization Management para. 5-18d (25 Jan. 2019). See also U.S. Dep’t of Army, Reg. 614-100, Officer Assignment Policies, Details, and Transfers para. 5-8d (3 Dec. 2019).

126. U.S. Dep’t of Army, Reg. 360-1, The Army Public Affairs Program para. 7-14 (8 Oct. 2020).

127. Id. para. 7-15.

128. See Privacy Act of 1974, 5 U.S.C. § 552a(b) (2019).

129. See U.S. Dep’t of Justice, Justice Manual § 1-7.400(B) (Apr. 2018) (establishing the general rule that the DOJ does not comment on ongoing investigations).

130. Id.

131. Id. § 1-7.400(C) (outlining the situations when comment on an ongoing investigation may be necessary).

132. See General Murray AR 15-6 Investigation, supra note 1, at 4 (finding that senior leaders at Fort Hood failed to communicate with the family, the public, and key stakeholders during the disappearance of SPC Vanessa Guillén resulting in a loss of trust in the command and the Army).

133. See Beynon, supra note 82 (discussing how MG Ken Kamper leaned forward with a proactive press release regarding allegations of sexual assault by Fort Sill cadre despite the ongoing nature of the criminal investigation).

134. See U.S. Dep’t of Army, Reg. 360-1, The Army Public Affairs Program para. 7-15 (8 Oct. 2020) (establishing the requirement that PAO coordinate with law enforcement prior to the release of information, but not prohibiting the release of information outright).

135. See id. The Army Public Affairs Program does not define what prejudice of an ongoing investigation is or factors to assess that concept. The PAO must closely coordinate with the OSJA and CID to navigate this rule.

136. See U.S. Dep’t of Army, Reg. 638-8, Army Casualty Program, para. 5-1f (7 June 2019) [hereinafter AR 638-8] (establishing key objectives of the Army Casualty Program).

137. Id. para. 5-3 (establishing the general parameters for the selection of Army casualty assistance officers including, but not limited to, their training, their temperament, leader characteristics, etc.).

138. See id. para. 5-8.

139. See FHIRC Report, supra note 14, at 84 (citing the lack of human touch in Fort Hood’s PAO response to the disappearance and murder of SPC Vanessa Guillén, as well as the negative consequences to the trust in, and reputation of, the command and the U.S. Army).

140. See AR 360-1, supra note 134, para. 7-3 (defining crisis communication).

141. See AR 360-1, supra note 134, para. 8-5 (providing basic guidance regarding how to integrate social media responses into the command PA strategy during a crisis communication event).

142. Id.

143. See id. para. 8-3g(8). The Army Public Affairs Program does not define the term “details” in the context of social media posts pertaining to criminal investigations.

144. See id. para. 2-5m. The PAO is the commander’s web and social media content manager, so any PA strategy to leverage social media must involve extensive coordination with the PAO.

145. See Joint Pub. 3-61, supra note 6, at I-4 (commenting on the complexity of the communications landscape).

146. See General Murray AR 15-6 Investigation, supra note 1, at 4.