No Legal Objection, Per Se
By Eric M. Liddick
The commander turns to me. “Any issues, Eric?” I am the legal advisor to a special operations task force conducting counter-terrorism operations. Our mission: locate and capture—or kill—terrorists.
My “morning,” like so many others, began a few hours earlier, but that means little when day blurs into night, night into day. I had removed my boots and lain down in my uniform on my well-worn twin-sized mattress shortly before the last of our teams began their return to base at about 3 a.m.
The pager, habitually positioned on a ledge near my head, buzzed obnoxiously around 5 a.m., jolting me awake, spiking my heart rate. I reached for it, desperate to reclaim the silence, before swinging my legs off the bed and exhaling an audible groan.
Sleepwalking and squinting, I made my way down the hall to the joint operations center to answer the page. A flurry of activity had replaced the normal quiet found in the few hours between an operation and sunrise. As the commander and operations officer intently focused on an unfolding situation, I walked over to the chief of operations. With a quiet and solemn voice, he broke the news: We just lost one of our men.
With a start, the fog lifted. My brain revved from zero to 60, rifling through battle drills and searching for potential legal issues. Knowing this tragedy could beget more, I sent a runner to wake my deputy and paralegal. When they arrived, I explained the situation and assigned tasks, reminding them that, though we all justifiably felt anger, we needed to be the ones who remained unemotional. I tried to exude confidence and certainty, but my face, I fear, betrayed insecurity and anxiety.
Now, roughly four hours after that obnoxious buzz, I find myself staring at an oversized screen. On it, I observe three congregating individuals, two on bicycles, one who appears young—perhaps a boy, but I can’t be sure—and I, as the legal advisor, am being asked by the commander whether he may legally kill these three humans. I am the judge—he the jury and executioner.
This is a story about how a lawyer’s professional responsibilities, when tossed into the pressure cooker of combat, can produce unpalatable consequences; a story about the reaches of war and post-traumatic stress and moral injury on its less obvious participants; and how the hidden costs of war may be more expansive than we realize.
The reports began surfacing almost a decade into the “Global War on Terror”: drone pilots operating from within the safety of the United States were beginning to show signs of post-traumatic stress.
I remember balking, laughing even. How could a drone pilot who worked in an air-conditioned box in Nevada or wherever, a pilot who worked eight or ten or twelve hours before returning home for dinner, a pilot who faced no real physical danger suffer from post-traumatic stress or moral injury? Absurd, I thought.
Now, almost two decades into that same war and confronting my own grief, I ask: How could I be so scornful, so wrong, so quick to judge?
Much has been written about the invisible wounds of combat, injuries suffered by, among others, infantry soldiers,1 medics,2 drone pilots,3 interrogators,4 special operations forces,5 and even journalists.6 Their wounds seem easy to comprehend, with their proximity to the action or direct causal link between the push of a button and manufactured death. But no one speaks about the potential for these wounds to affect others,7 like judge advocates, who find themselves far removed from the physical danger or the direct causal link. Yet, I feel these wounds 8 within me.
Instead, I was a mere cog in the machinery of death, advising in relative comfort away from the action, fueled by a steady supply of caffeine, snacks, and adrenaline, providing a cloak of legality to the decision-maker’s choice to approve a strike, to pull a trigger—to kill.
Sure, I was geographically closer to the action, but, psychologically, I remained nearer to Nevada and those drone pilots. I faced little danger beyond sporadic, and ineffective, mortar attacks. I didn’t receive or return fire, didn’t experience “friendly fire,” didn’t fear improvised explosive devices, and, most importantly, didn’t order the strikes or pull the trigger that took another human life. Instead, I was a mere cog in the machinery of death, advising in relative comfort away from the action, fueled by a steady supply of caffeine, snacks, and adrenaline, providing a cloak of legality to the decision-maker’s choice to approve a strike, to pull a trigger—to kill.
Even so, every cog contains some thing. And this something has changed since I returned home. I am different, and the difference is the weight of the guilt I feel. But it is not only the moral weight of how even legal advice kills, but also the burden of feeling guilty for feeling guilty. Post-traumatic stress and moral injury are reserved for those warriors who have stared down the barrel at another human and pulled the trigger, not some lawyer chasing frosted blueberry Pop-Tarts with hot coffee. Their suffering seems somehow legitimate, whereas mine does not.
But post-traumatic stress and moral injury—“the damage done to one’s conscience or moral compass when that person perpetrates, witnesses, or fails to prevent acts that transgress one’s own moral beliefs, values, or ethical codes of conduct” 9—don’t work that way. No one possesses a monopoly on suffering. Death is a universal truth without a universal response. Trauma knows no geographic limits, affects each of us uniquely, and chooses its victim at random. This is why the Diagnostic and Statistical Manual of Mental Disorders recognizes not only “directly experiencing” actual or threatened death or serious injury, but also “repeated or extreme exposure to details surrounding” those events, including through “electronic media” so long as the “exposure is work related,” as a basis for diagnosis.10 None of us—not even lawyers—are immune.
My job was to provide legal advice to the task force on the application of international law to military operations in furtherance of our mission. I had a room off the operations center and carried a pager with a limited range everywhere. Not because of any outsized importance, but because every decision the task force made moved us linearly toward a singular end: the defeat—often synonymous with death—of those who terrorized civilians and who also wished us harm. And in this carefully orchestrated dance with death, my role was to ensure the task force operated within legal constraints every step along the way.
Every member of the team experienced the hardships associated with a special operations task force deployment. In this regard, my job was hardly unique. But it was uniquely hard. As the legal advisor, I often felt alone, isolated on what seemed like an island in shark-infested waters. While each member, including the legal advisor, contributed in some way toward accomplishing the mission, some viewed the lawyer—rightly or wrongly—with skepticism or scorn, as an obstructionist outsider. As such, my effectiveness depended on working hard to ingratiate myself, to be seen by teammates as something other than a naysayer, to identify solutions and not just problems. The organization, like all special operations task forces, was an unstoppable train, and the pressure to gain acceptance by bowing unquestionably to its lethal mission and intense human passions could be overwhelming. No one wanted to hear “no.” They wanted—demanded—that I find a way to say “yes.” And so, I had to decide whether to stand on the tracks or hastily jump aboard.
At the same time, I possessed obligations to something larger. The mission of the Judge Advocate General’s Corps 11 is to provide “principled counsel,” defined as “professional advice on law and policy grounded in the Army Ethic and enduring respect for the Rule of Law, effectively communicated with appropriate candor and moral courage, that influences informed decisions.” 12 Although a part of this team, I owed a greater duty to protect the Army— and not any one person—by upholding my solemn oath as an officer and attorney to the Constitution and rule of law in the relentless fight against consequentialism. This required a certain amount of neutrality, dispassion, and detachment that only isolated me further.
A brilliant officer once cautioned me to provide only legal advice. In the military, we refer to this as “staying in your lane.” His caution concerned less professional protectionism of discrete tasks and more the weight accorded words spilling from a lawyer’s mouth. Other teammates could express concern about a particular action and the commander would feel free to disregard those concerns. But those words, when expressed by a lawyer, would suddenly become imbued with some mysterious legal aura that might cause the commander to hesitate, to not follow his intuition.
One can certainly adopt this narrow view, that a judge advocate’s job is to advise on the law—nothing more, nothing less. And one would be correct, and not. Because this seemingly limited duty is, in reality, quite expansive.
Baked into “principled counsel” are the Rules of Professional Conduct for Lawyers outlined in Army Regulation 27-26. 13 These rules require resolving issues “through the exercise of sensitive professional and moral judgment” and permit advice encompassing moral considerations “relevant to the client’s situation.” 14
But “principled counsel” goes further, folding back on itself to make the permissive prescriptive. The reference to “the Army Ethic” incorporates the Army Values 15—values like honor and integrity. Honor represents a core principle in the law of armed conflict, providing a safe harbor of legitimacy to our actions in the nation’s defense.
No body of law, however, can comprehensively codify all that honor demands. A lawful action represents a necessary, but not sufficient, stop on that unpaved road. So, integrity fills the potholes. It requires us to act legally and honorably under all circumstances, and underpins the mandate to exercise moral courage, to choose the hard right over the easy wrong without concern for personal or professional consequences.
Legal advice, then, represents more than the prescriptive rules 16 outlining right from wrong, lawful from unlawful. It also represents and embodies our nation’s collective values,17 a notion found in the murky distinction between the permissive “may” and the normative “should.” “Any legal objections, Eric?” asks both. Can I take this strike, and should I take this strike? Can I kill, and should I kill? The legal advisor needs the integrity to answer both questions fully and candidly. Because the law is not devoid of morality, even when the lawyer is.
It’s these unrelenting pressures—accomplishing the mission; protecting our teammates; advancing the nation’s interests; providing quick and accurate legal advice; ensuring compliance with the law and respect for the rule of law; finding a legal, ethical, and moral way to utter “yes”; being seen as a team player; and exercising moral courage—influenced by innumerable variables—atmospherics, optics, personalities, and differences in rank between me and those I advised—that generated the weight seated squarely upon my, and so many other legal advisors’, shoulders.
I felt these pressures greatest during strikes targeting the enemy and its objects. These strikes 18 represented the bulk of my day-to-day responsibilities. In many instances, they were dynamic, arising spontaneously and providing no real moment for deliberation or second opinions, instead requiring a rapid assessment of the known facts and a split-second application of myriad international legal principles, rules of engagement, and theater-level directives and policies.
While every decision demanded precision, few carried the opportunity for error presented by dynamic strikes. Yet, because they ultimately coalesced around life or death, these strikes offered no real margin for error. The pressure to provide advice quickly, and accurately was indescribable— the consequences grave, and irreversible. Wait too long, and teammates die. Wait too little, and a life may be taken unjustly.19 Though my answers took seconds, the questions forever remain.
Sometimes, when the night terrors relent, I wonder whether distance from mortal danger adds gravity to one’s moral responsibility. Perhaps when you are not on the ground facing existential danger, your role in taking another human life feels more attenuated. Had I been receiving fire, the decision to kill would have been, in some ways, simpler—no easier and no less serious, but simpler: kill or be killed. But stripped of that human instinct for survival, my role assumed an air of profoundly unjust omnipotence, particularly where my decisions traced forward to the unfortunate, unintended taking of innocent lives. And that—the meaningless, unnecessary loss of innocent lives—is why living still feels like purgatory.
Many reassure me. “The decisions rested with the commander,” they say. “He—not the staff officers, not the machinery, and least of all, not the judge advocate—determined when and where life would be extinguished.” If the air of omnipotence surrounded anyone, it surrounded him.
Rationally, I know this to be factually accurate. But factual accuracy is not the mark of moral solvency. Because we fought as a team. The commander’s decisions represented the sum of all parts, the accumulation of every effort, every insight, every decision, every analysis, every action up and down the chain. We all partook in that accumulation, and its cumulative effect. We all shared in the victories, and the mistakes. And any postmortem that attempts to pin an action and its consequences on the commander alone represents little more than a self-serving slippery slope, a foolish sentiment intended to assuage the conscience and avoid individual responsibility. I cannot wash my hands so easily.
Sure, mistakes happen—whether through oversight or impatience or recklessness. The proverbial fog of war, we’re told. Yet, rationality cannot erase the truth that, sometimes, innocent lives are lost. So, I find no comfort in knowing I did my best with the information available at the time. That fiction concerns itself with legal, not moral, responsibility and, as such, cannot offer moral absolution. An action may be legal, yet unjust—a decision right, yet wrong. And no hollow platitude or legal doctrine or empty “accidents happen” can so easily console or delude the moribund soul of one who participated in an ultimately unjust act.
The pressure builds as all eyes turn toward me. We’ve located three individuals who we believe participated in the firefight that claimed one of our own—or were, at the very least, sympathetic to the cause— and now the entire operations center waits, wanting and willing to exact justice, to destroy the enemy. I am the sole remaining impediment to a sentence of death.
The pressure generated by the morass of seething anger, hostility, and vengeance and by the demand for quick judgment mixes with the pressure generated by the very gravity of the question being asked. And, as this volatile mixture swirls, time collapses, making the seconds feel like hours as 40 eyes glare. I’m running on autopilot, the result of too little sleep, too much caffeine. My heart races, my eyes expand ever wider, screens lining the wall flash, the air fills with an underwater cacophony of ringing phones and static punctuated by intermittent radio chatter and the murmur of disembodied voices and the click of a pocket knife repeatedly, and unnervingly, flicked open and closed, open and closed, open and closed. I can hardly think over the silent din and pounding in my ears.
I turn to the commander. I’m leery. I have no legal objections, per se. But this isn’t clean-cut. And I’m uncomfortable. My intuition demands caution, patience, but no one cares about my intuition. They only want the law.
“Any issues, Eric?” “
“No legal objection,” I decree.
I will never know with absolute certainty whether those three congregating individuals deserved to die. 20 But I will also never unsee, 21 in forever echoing minute detail, the child who sprinted into view from an adjacent courtyard or the crowded marketplace full of children or the slender man as he cradled a child’s limp and lifeless body or the frightened family as it sought cover or the woman as she lamented God’s indifference. I will never know whether I could have altered fate or prevented the loss of innocent lives had I only done more, had I only spoken up, had I only insisted on something—anything—different.
This is the punishment for my crimes— an agonizing purgatory of eternal remorse and what-ifs. Befitting the job, it’s a lonely place indeed. TAL
Eric Liddick is a judge advocate assigned to The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. He hopes this article reminds those suffering from trauma, whatever the source, that they are not alone, and that it encourages them to seek help from others.
No Legal Objection, Per Se is a reprint of Eric Liddick’s article that was published on War on the Rocks on 21 April 2021. It has been reprinted with permission by War on the Rocks.
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13. U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers (28 June 2018).
14. Id. para. 6, r. 2.1.
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