(Credit: Olivier le Moal - stock.adobe.com)
Azimuth Check
Providing Principled Counsel to Innovative Organizations
By Colonel Ryan Beery and Lieutenant Colonel Trenton “Trent” W. Powell
On 10 May 2022,two top U.S. intelligence officials testified before the Senate Armed Services Committee on global threats to the United States and its allies.1 Army Lieutenant General (LTG) Scott B. Berrier, Director of the Defense Intelligence Agency, and Avril D. Haines, Director of National Intelligence, provided the committee an overview on the U.S. intelligence community’s 2022 assessment of worldwide threats (focusing specifically on those posed by China, Russia, and Iran, as well as violent terrorist organizations).2 In articulating these threats, LTG Berrier’s comments highlighted U.S. competitors’ modernization efforts and institutional reforms:
The United States faces military and intelligence threats from competitors . . . who have, and are developing, new capabilities intended to contest, limit, or exceed U.S. military advantage. States and non-state actors are selectively putting these capabilities into play globally and regionally. These capabilities also span all warfighting domains—maritime, land, air, electronic warfare, cyberspace information and space.3
Determined to counter these threats and gain a competitive edge among global powers, the U.S. military seeks to transition from a more than twenty-year focus on counter-terrorism operations to efforts to modernize all warfighting domains.4 Challenges drive innovation, and innovation propels a convergence of intelligence, cyberspace, information, and electronic warfare capabilities in novel and innovative ways.
The legal landscape of multi-domain operations (MDO) is complex. It is comprised of different lines of authority, funding, and oversight, and a structure of stove-piped units with varying authorities and capabilities. Future (and present) national security law (NSL) practitioners will not just provide legal advice on technical innovations, modernization of weapon systems, and force structure during MDO in conflict, but will also advise on these capabilities in competition outside armed conflict.
As the Army and the larger defense community modernizes into a truly multi-domain force, U.S. military organizations are innovating and exploring novel ideas and concepts.5
As usual, law and policy are behind innovation. Faced with these gaps,
innovative organizations seek advice from their attorneys. These
attorneys must provide principled counsel to best advise their
organizations as they attempt to innovate.6
This principled counsel is not usually a simple yes or no answer.
Instead, attorneys who best practice principled counsel provide clients
advice that leads them on the path to yes; they ask the right questions,
help commanders and staff develop oversight and risk mitigation
measures, and collaborate among the NSL enterprise. Ultimately, this
principled counsel will enable their commanders to make the informed
risk decisions necessary to innovate to compete in MDO.
Attorneys providing principled counsel need candor and moral courage to
not give in to organizational pressure to “get to yes” through a legal
opinion that fills authority, mission, or policy gaps instead of
interpreting existing execution orders, law, and regulation. (Photo
courtesy of authors)
Principled Counsel: A “Maybe” Instead of “Getting to Yes”
When advising on innovative ideas and novel issues in innovative
organizations, attorneys may quickly identify that there are gaps in
law, regulatory authority, and mission authorities, or enough ambiguity
in these authorities to raise risk in execution. The organization’s
innovative idea is neither specifically authorized nor explicitly
prohibited by these authorities. Commanders may decide to assume risk in
this ambiguity, assessing that their superiors at higher echelons will
underwrite their decision, and the required authorities, regulations,
and policies will eventually catch up to their innovation.
In competition, the innovative organization may not have time to wait
for policy or law to catch up to what the commander assesses the
organization must do now. Often in the guise of “get to yes,” staffs may
pressure their attorneys to give a legal opine that fills these
authority gaps or underwrites bypassing existing processes or
policy.7 In this situation, attorneys must practice principled counsel by resisting staff and command pressure to “get to yes.” Attorneys providing this principled counsel need candor and moral courage to not give in to organizational pressure to “get to yes” through a legal opinion that fills authority, mission, or policy gaps instead of interpreting existing execution orders, law, and regulation.
Commanders trust our legal advice, judgment, and ability to see issues from a critical perspective. Hence, staffs may see a “no legal objections” opine as a quick way to get around these gaps and provide assurance to the commander. Ultimately, these legal opines are counterproductive; they mask risk and prevent the commander from making an informed decision based on a proper risk analysis. Attorneys must understand their role as an advisor and how this role requires they give candid advice, even if the client is reluctant to receive it.
Rule of Professional Conduct 2.1 and its comment8 provide attorneys essential guidance for providing this principled counsel:
A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate.9
When “getting to yes” is either impossible or creates a misunderstanding of the underlying risks to the commander and the organization, attorneys best serve their client by helping identify a path to yes. They ask the right questions for the right decisionmaker to make an informed risk decision and use their skills to help the staff develop control and oversight schemes to further identify and address risks during execution.
Identifying the “Path to Yes” vs. “Getting to Yes”
Under domestic law, an attorney can “get to yes” on any question: If Congress (under Article I of the U.S. Constitution)has appropriated funds for the action and has not passed a law prohibiting the action, the President (under Article II of the U.S. Constitution) has authorized the action through the national command authority, and the judicial branch (under Article III of the U.S. Constitution) have not prohibited or otherwise enjoined the action, it is legally permissible.
While overwrought at first glance, this constitutional framework highlights potential shortfalls in fiscal and operational authorities required to implement an innovative plan or novel concept. By identifying these shortfalls, the attorney identifies a “path to yes.” Ultimately, this “path to yes” is more helpful to getting innovative organizations to their desired end state.
Fiscal law gaps require time and effort to resolve, but they are not insurmountable. G8/resource management channels may resolve some of these gaps via re-programming or other accounting processes to request the correct color of money. Other fiscal law gaps may require new statutory authority. While not an immediate solution, this is an enduring solution. For example, 10 U.S.C. § 127e resolved a fiscal law gap by enabling special operations forces to train and equip surrogate forces to conduct counter-terrorism operations.10 In addition, Congress filled a funding gap in Syria by appropriating funds to train and equip Syrian Defense Forces.11
Specific legislation can also solve gaps in acquisition authorities. In recent years, innovative organizations have asked Congress for more agile and streamlined acquisition authorities and processes needed to innovate, and Congress has provided some of them.12
National command authority (the President, the Secretary of Defense, combatant commands) is an easier gap to fill because it does not require congressional action. In most instances, the Secretary of Defense can fill the gap through an execution order or deployment order. However, some activities may require higher-level approval, implicating the National Security Council and the interagency process. Commanders usually realize they cannot assume risk held at these echelons, but staffs may not have the same level of insight or experience. As a result, they may pressure the advising attorney to just “get to yes” in the name of mission accomplishment. Attorneys must be wary of the ask to fill this gap.
Asking the Right Questions: Helping Commanders Mitigate and Address Risk
Under the Army’s mission command doctrine, staffs must attempt to identify and mitigate risk.13 When working on novel and innovative concepts, staffs may not identify and assess every potential scenario beforehand. Despite their best planning efforts and advice, not all risks, or legal questions, may be apparent at the outset, and unexpected facts or issues will likely arise during execution. Therefore, Army mission command doctrine requires commanders and staffs to establish control measures to understand how risk accumulates over time or how assumptions made during planning affect risk analysis.14 Control measures are essential when working on any novel or innovative concept. Control measures can be anything from sequential operational phasing allowing re-examination of risk (and legal issues), critical commander information requirements, or oversight, review, and governance structures.15
Commanders trust our legal advice, judgment, and ability to see issues from a critical perspective.
As discussed in the introduction, intelligence, cyber, space, information, and special operations require more novel and innovative approaches. All these missions inherently carry a degree of risk in both domestic and international law that could result in a loss of operational (national command authority) or fiscal authority (Congress). Thus, attorneys have a role in helping identify risk and establishing control measures to mitigate and address risk. Control measures not only inform the commander of ongoing risk, but also allow attorneys to proactively identify and address legal issues that arise during execution. Even if these control measures are reactive, mission command systems that identify these issues, rectify them, and incorporate the lessons learned to mitigate future issues will hold up better to scrutiny from higher echelons or civilian leaderships than an organization that had no control measures.
Ideally, developing control measures is not the attorney’s job alone. Control measures should be a coordination between staff and echelons under Army mission command doctrine.16
If the staff is already identifying risks and building control measures,
the attorney’s role may just be in helping refine them.
Collaboration among NSL attorneys is a vital component of providing
principled counsel to innovative organizations. (Credit: Real -
stock.adobe.com)
However, if staff members are disregarding or not identifying risks,
often in the name of mission expediency or “getting after it,” the
attorney has an obligation to ask questions necessary to advise their
clients on these risks, and how these risks could accumulate without
sufficient control and oversight. While attorneys can’t be expected to
have the subject matter expertise of each staff section, their critical
thinking skills and ability to view issues from multiple viewpoints
enable attorneys to ask questions of staffs that help identify risk and
the need for risk mitigation and control and oversight measures.
Staffs may respond in a variety of ways when their attorney asks
questions instead of providing a simple concur/non-concur. Many staff
officers will appreciate the attorney’s critical thinking skills and
consider these questions invaluable feedback to further develop and
perfect their ideas. However, some staff officers may not be as
receptive. Regardless, an attorney should not be deterred by an
operations officer’s admonishment to “stay in your lane” because the
Rules of Professional Responsibility require it.
Rule 2.1’s comment provides guidance to attorneys on their obligation to
provide this advice. A client may “expressly or impliedly ask the lawyer
for purely technical legal advice,” directing the attorney to give a yes
or no opine purely on legal matters.17
However, the comment limits the attorney’s ability to provide such
limited advice, recognizing that “[p]urely technical legal advice . . .
can sometimes be inadequate.”18 More specifically, “when such a request is made by a client inexperienced in legal matters, however, the lawyer’s responsibility as advisor may include indicating that more may be involved than strictly legal considerations.”19
Further, the attorney owes advice to the Army and Department of Defense as a whole, so they should disregard the suggestion from staff or even commanders to “stay in your lane” or “just give me a yes or no.” Under Rule 2.1, “a client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.”20 Thus, the advising attorney is obligated to provide this advice to their organization, which ultimately helps their clients make an informed risk assessment.
Collaboration Among NSL Community
With MDO converging capabilities and enabling innovation across NSL disciplines, attorneys must have a working knowledge of the operational capabilities against which the law applies. However, the cyberspace and intelligence domains, for example, are highly technical and contain multiple sub-disciplines.21 It could take an entire military career for an NSL attorney to gather expert-level experience across these disciplines and sub-disciplines. There are distinctions and nuanced variances between offensive cyber effects operations and protective or defensive operations.22 The same holds true in the intelligence realm between counterintelligence, signals intelligence, and human intelligence.
In most cases, gaining expert-level technical knowledge as legal professionals, especially among our uniformed judge advocates, is compromised by career time constraints and assignment considerations. Instead, it is easier for an attorney to develop one specialized NSL area: special operations forces, cyber, or intelligence, with assignment progression reinforcing this specialization. To expect one attorney, especially a uniformed one, to develop in-depth knowledge of all these disciplines and sub-disciplines may not be feasible. However, this combined expertise is required to provide principled counsel within MDO.
The solution is not to develop one attorney capable of answering all questions posed by MDO. Rather, it is to rely on a collaboration of the Army JAG Corps’s collective NSL expertise. The Army JAG Corps already has a culture of collaboration; MDO and great power competition will require even greater formal and informal collaboration among NSL practitioners to provide the complex, nuanced, and expert legal advice that our respective innovative organizations need.
Collaboration among NSL attorneys is a vital component of providing principled counsel to innovative organizations. Leveraging the talent and collective experience in our ranks will help us all advise innovative organizations and help our commanders make informed risk decisions.
Conclusion
In providing principled counsel to innovative organizations, attorneys must stand firm on principles of law while helping their commanders appropriately assess risk. If commanders assume risk, attorneys must help shape and participate in an oversight and investigative process that will help identify and mitigate unanticipated issues as they emerge. Enabling our clients to proactively address these risks will help maintain trust with the National Command Authority, Congress, and the American people. This, in turn, will ensure the flexibility and trust needed for the Army and joint force to modernize and innovate for myriad complex global challenges. TAL
COL Beery is the Staff Judge Advocate at U.S. Army Cyber Command at Fort Gordon, Georgia.
LTC Powell is the Deputy Staff Judge Advocate at U.S. Army Cyber Command at Fort Gordon, Georgia.
Notes
1. Terri Moon Cook, Top Intelligence Chiefs Testify on Global Threats, U.S. Dep’t of Def. (May 10, 2022), https://www.defense.gov/News/News-Stories/Article/Article/3027208/top-intelligence-chiefs-testify-on-global-threats.
2. Id.
3. Id.
4. See, e.g., Army of 2030, U.S. Army (Oct. 5, 2022), https://www.army.mil/article/260799/army_of_2030.
5. See, e.g., Joe Lacdan, Project Convergence 2022: Army to Work Closely with Allies in the
Future Fight, U.S. Army (Nov. 16, 2022), https://www.army.mil/article/262055/project_convergence_2022_army_to_work_closely_with_allies_in_the_future_fight.
6. Principled counsel is one of the Corps’s four constants. The Judge Advoc. Gen.’s Corps, U.S. Army, Four Constants
(n.d.),
https://www.jagcnet.army.mil/Sites/JAGC.nsf/0/46DCA0CA1EE75266852586C5004A681F/$File/US%20Army%20JAG%20Corps%20Four%20Constants%20Smart%20Card.pdf.
7. This assertion is based on the authors’ combined recent professional
experiences as the Staff Judge Advocate and Deputy Staff Judge Advocate
for U.S. Army Cyber Command from 5 July 2020-present; and Chief,
National Security Law Section/International Law Attorney for U.S.
Special Operations Command from 10 July 2018 to 30 June 2020
[hereinafter Professional Experiences].
8. U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Laywers r. 2.1, cmt (1) (28 June 2018) [hereinafter AR 27-26].
9. Id.
10. Support of Special Operations to Combat Terrorism, 10 U.S.C. § 127e (2021).
11. The National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, 128 Stat. 3292 (2014), and the Fiscal Year 2015 Consolidated and Further Continuing Appropriations Act, Pub. L. No. 113-235, 128 Stat. 2130 (2014), approved up to $500 million to train and equip Syrian forces with the Counterterrorism Partnerships Fund. See Christopher M. Blanchard & Amy Belasco, Cong. Rsch. Serv.,
R43727, Train and Equip Program for Syria: Authorities, Funding, and
Issues for Congress, at Summary (2015).
12. See, e.g., 10 U.S.C. §§ 4021-22 (2022) (covering other transactional authorities for research and prototyping).
13. U.S. Dep’t of Army, Doctrine Pub. 6-0, Mission Command: Command and
Control of Army Forces para. 2-34 (31 July 2019).
14. Id. paras. 2-35 to 2-36.
15. Id. paras. 3-42 to 3-47.
16. Id.
17. AR 27-26, supra note 8, r. 2.1 cmt. (3).
18. AR 27-26, supra note 8, r. 2.1 cmt. (2).
19. AR 27-26, supra note 8, r. 2.1 cmt. (3).
20. AR 27-26, supra note 8, r. 2.1 cmt. (1).
21. See, e.g., U.S. Dep’t of Army, Field Manual 3-0, Operations paras. 2-9 to 2-10, 1-101 to 1-105 (1 Oct. 2022).
22. See Joint Chiefs of Staff, Joint Pub. 3-12, Cyberspace Operations ch. II, para. 1(b) (8 June 2018).