(DoD photo by Navy Petty Officer 1st Class Dominique A. Pineiro)
Knowledge is knowing a tomato is a fruit. Wisdom is not putting it in fruit salad.1
Just as a botanist should know that a tomato is a fruit, so too, must a lawyer know the law. But once we master the knowledge of the law, we must know how to use it and employ it. We must be both a botanist and a chef. Premier lawyering and “right context” advice requires both knowledge and wisdom. The application of law in life, with its impact on human beings and military organizations, requires a judge advocate who is a subject matter expert in black letter law as well as a wise counselor for the commanders we advise. Our unique practice of law requires a wisdom that understands military discipline and where it intersects with the application of military justice. Nowhere is that more true than in courts-martial in combat.
“These young [S]oldiers no doubt assumed that military justice matters would be postponed until combat operations ended. Holding a trial on the eve of battle, however, demonstrated to every division [S]oldier that the maintenance of discipline was an integral part of preparing for the upcoming attack. High standards of military discipline would remain in place.”2
Military discipline is the touchstone for military justice. In most instances, military discipline works to ensure that Soldiers and leaders act lawfully and properly in the most exacting and dire situations. Military discipline is instilled in every recruit and encapsulated in the Army’s three general orders.3 The first of which is wise advice in most life situations, “I will guard everything within the limits of my post and quit my post only when properly relieved.” In other words, “I will do my duty.” This ethos becomes part of you as you become a Soldier. All around this world, at the time of this writing, there are Soldiers’ guarding posts in the bitter cold, unyielding heat, darkness, and danger and they stand at that post, alert, until their relief comes. Our military is held in high regard because of this fact. It is not the threat of punishment that is foremost in most Soldier’s minds as they face the enemy, jump out of an airplane, pull a guard shift, or clear improvised explosive devices from a road. But it is crucial that all Soldiers know that there are serious consequences, and criminal consequences, that arise from a lapse in discipline.
There certainly are times when criminal sanctions and adverse actions must be employed. A wise commander’s calculus begins with military discipline and how justice is employed to ensure we have disciplined Soldiers. In a commander, there is authority to mete out a wide spectrum of sanctions ranging from minor to serious administrative actions with an option of charging a Soldier with felony offenses at a General Court-Martial at the far end of that spectrum.
The leadership involved in weighing those decisions comes at echelons of growing responsibility, but also concomitant experience and judgment. The same is true for judge advocates. And, so how do judge advocates develop our own leadership, expertise, and judgment to be able to provide the right options and sage legal advice to the officers vested with the responsibility for discipline, and, therefore, justice within their ranks? And, how do we ensure that we are always poised to be able to provide knowledge and wisdom to combat commanders in the middle of battlefield operations? It is easy to lapse into a garrison mindset and to forget that we may need to address combat-specific misconduct in a court-martial. Military discipline is paramount in combat. It allows for mission accomplishment, gives Soldiers confidence in their peers, subordinates, and superiors, it prevents fratricide, and allows commanders confidence in the fidelity of the information they are provided. It gives our operations legitimacy. In the rare instances where discipline lags, the battlefield judge advocate must be prepared to provide knowledge and wisdom to a commander.
Our history of judge advocates, as chronicled in Judge Advocates in Combat demonstrates that we will be called upon in short order to convene a court-martial in a deployed setting. The charges at these cases will almost certainly involve military discipline and may involve scenarios that are either unlikely or impossible to arise in a peacetime, garrison courtroom.4 Our line officer counterparts engage in realistic training to test their combat systems and ability to command and control formations. We do not have that luxury. A warfighter exercise does not test our ability to investigate a crime, advise a commander, prefer charges, and conduct a court-martial in combat. Nevertheless, we must be able to accomplish that task and to do so without any formal additional training. We must ensure that we have the requisite knowledge of the law and the wisdom to know how to employ that knowledge.
Since the enactment of the Uniform Code of Military Justice (UCMJ) we have had episodic experience with courts-martial in combat situations. They were common in Vietnam but for many years after the withdrawal of U.S. forces from Vietnam, there were sections of the UCMJ and corresponding portions of the Manual for Courts-Martial that lay dormant. A large scale deployment made those dusty sections relevant quickly. Even in a highly disciplined and all volunteer force, there are situations that must be addressed to ensure discipline throughout the force. In 1990, during Desert Shield and Desert Storm, courts-martial were conducted near the front lines on the eve of the assault into Iraq.5 Courts-martial also addressed criminal misconduct in Panama and Haiti for situations that undermined military command authority and the law of armed conflict.6 In more recent years, courts-martial were routine in Iraq and Afghanistan and frequently involved either unique military offenses or scenarios that only arise in combat. Therefore, it is imperative that we can deploy fully formed military justice resources so that commanders have all options available when incidents of criminal misconduct occur.
Part of the wisdom for a judge advocate, and especially a staff judge advocate, is to realize how and where discipline, command authority, the warrior ethos, mission accomplishment, and military justice intersect. This unique practice of law is only accomplished by judge advocates—criminal trials during combat. As we contemplate the new National Defense Strategy and we train for potential confrontations between peer and near-peer opponents, we must ensure that we will always be ready to deliver premier military justice wherever we may be called upon to do our mission. TAL
BG Escallier is the Assistant Judge Advocate General for Military Law and Operations
1. Philip Sheldrake, The Business of Influence: Reframing Marketing and PR for the Digital Age 153 (Chichester: Wiley 2011) quoting Miles Kington.
2. Frederic L. Borch, Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti 190 (2001) [hereinafter Judge Advocates in Combat]. Describing two courts-martial from 1st Armored Division. One involved the deliberate injury of a Soldier who shot himself to get returned to Germany; the other involved disobedience and other offenses by a Soldier who had claimed conscientious objector status.
3.U.S. Dep’t of Army, Pam 600-4, The Soldier’s Blue Book para. 10-4 (23 June 2017).
4.Judge Advocates in Combat,supra note 2.
6.Judge Advocates in Combatis replete with stories and anecdotes of military discipline issues that arose quickly following deployment orders or the onset of the mission in theater. Id. Describing a court-martial for a Soldier who shot himself to avoid combat. Id. at 224. Describing the actions of Captain Rockwood and his defiance of orders.Id. at 247. Describing the court-martial of Captain David Wiggins for inter alia disobeying orders and conduct unbecoming an officer. Describing the court-martial of a specialist who publicly attempted to solicit Soldiers to go AWOL and avoid service after being activated out of the Louisiana National Guard. Id. at 190. Describing civilian deaths in Somalia that resulted in courts-martial.Id. at 212-214.