The Army Lawyer | 2019 Issue 2View PDF

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The Army Lawyer


Evolving with the Threat


The Changing Nature of our Practice

 PDF Version

This edition of The Army Lawyer is devoted to our National Security Law Practice. Members of the Regiment should take notice. The Army Lawyer is not simply an excellent collection of eclectic writings on our practice of law. Foremost, it is designed to catalyze thought and focus energies on premier lawyering in uniform.

So the focus is deliberate, and the first message I want you to take away with this issue is focus: Focus on the purpose of this issue and the name change to our practice. Understand it so you can own it and explain it, authoritatively. Message two is: “Become part of the effort.” Devote time to recognize and understand what this issue is trying to tell you. At a tactical level, think: “What does this mean to my practice day-to-day in a plans or targeting cell? How do I engage at the Brigade S3 or the Division G2 staff more effectively?”

Think “how do I improve my own, and my team’s understanding of where, for example, U.S. Policy ends and the Additional Protocols leap forward, or where an ICRC ‘interpretation of LOAC’ has gone beyond its moorings in International Agreement or State Practice?”

At the next level, you should ask yourself, “What is my Corps doing with this practice area and why is it important to me and my team—and future teams that I might lead—to understand?”

The first part of the answer is that we’ve renamed the practice of International and Operational Law deliberately to convey a larger strategic embrace of multiple practice areas in a constantly evolving arena. Cyber, intelligence, domestic operations, and information operations are a foundational area of our practice. Alone and without Corps-wide attention and focus, they remain niche practices. As we look to the future, however, relegating these important practice areas to the fringes is untenable. We need the entire arena to be seen as a larger body of practice.

What does this achieve? Integration and synergy—from recruiting to talent management (which is more than assignment decisions), to resourcing (how many billets in what location), to curriculum (what and how often we teach). Ten years ago we had the same challenge in military justice. If we needed an especially skilled litigator, we “cold called” SJAs and asked if they had any especially skilled litigators. Ten years into the SVP program, we now have a known population of accomplished trial attorneys as a direct result of the program. We will do the same thing with NSL—grow, train, educate and assign in such a way as to leverage experience and grow the bench.

NSL is an umbrella term that incorporates multiple practice areas. The choice to change was not a result of “keeping up” with academics or playing to trends. Anyone who leads any organization knows that words matter. Focus matters. And yes, actions matter more. That is why this isn’t fast food. It takes time and persistent effort—which is where you come in.

The National Security Law Division of the Office of the Judge Advocate General and the National Security Law Department of The Judge Advocate General’s School were renamed to reflect the broad expansion of the traditional “operational and international law” practice. This doesn’t mean you’ll stop doing operational law at the small unit level. It simply means “ops” is part of a larger sight picture.

At the higher echelons of our Army, “National Security Law” more accurately describes the strategic nature of our practice covering traditional Jus ad Bellum and Jus in Bello concepts, domestic operations, coalition interoperability, special or clandestine operations, cyber and intelligence law, and the constitutional and international legal underpinnings of the practice.

Emerging technologies (such as artificial intelligence), changing doctrine (such as Multi-Domain Operations), and new threats (such as hypersonic weapon delivery systems) signaled a need to broaden the aperture of our practice area. In addition to capturing the true nature of our practice in this field, the name change serves to create harmony with our interagency and academic partners using a common language. Furthermore, the enhanced approach to the breadth of national security challenges will bring synergy to our talent management. We are committed to building and sustaining experts in a manner that is persistent and deliberate.

This is an evolution in the notion given to me long ago by the inimitable then Captain E.J. O’Brien that, “You don’t have to be sick to get better.”

Keep getting after it. TAL