• The new cluster bearing laurel, stars and the National Ensign now following the familiar JAA logo reflects the composition of the JAA and collective ethos of Judge Advocates.
• The five stars forming a pentagon represent the core constituencies of JAA members: the U.S. Army, U.S. Marine Corps, U.S. Navy, U.S. Air Force, and the U.S. Coast Guard.
• The National Ensign ensconced within the pentagon waves proudly evincing strength and unrestrained liberty in safeguarding the role of law to support our national security.
• The laurel/oak leaf wreaths – traditional military symbols used in several services’ JAG corps insignia –  bordering the stars and National Ensign represent peace and triumph of military law in preserving the rule of law and peace through military force.
• The "1943" providing a cornerstone for the cluster commemorates the establishment of the JAA and provides a foundation against which to measure the past and future activities and direction of the JAA as a military bar association.

CAREER ARMED SERVICES ATTORNEY AWARDS

2012 Recipients:

U.S. Army (active duty): LTC Nelson J. Van Eck
U.S. Army (reserve/Guard): LTC Nicholas King

U.S. Navy (active duty): CDR Florencio J. Yuzon
U.S. Navy (reserve): CAPT Robert D. Nelson

U.S. Marine Corps (active duty): Lt Col Eric J. Peterson
U.S. Marine Corps (reserve): Col Christopher N. Hamilton

U.S. Air Force (active duty): Lt Col Todd W. Pennington
U.S. Air Force (reserve/Guard): Lt Col Jed J. French

U.S. Coast Guard (active duty): CDR Thomas M. Emerick
U.S. Coast Guard (reserve): CDR Rachael Barrett Bralliar

The recipients of the Marshall, Everett, and Suter awards were announced on Apr 3 2012 and will also be honored at the dinner.

Because there is a limited capacity for this event, we recommend advanced registration. Click on the link below to register online and reserve your seat.

Link to Registration

Register now to attend the Symposium on the Status of the Legal Profession: Facing the Challenges of the 21st Century, to be held at the Georgetown University Law Center from March 31 to April 2, 2011. The symposium is presented by the American Inns of Court and the Georgetown University Law Center with assistance and support from the Honourable Society of the Middle Temple in London.

Join Justice Stephen G. Breyer; Lord Nicholas Phillips, President of the Supreme Court of the United Kingdom; Justice Sandra Day O'Connor; Justice John L. Murray, Chief Justice of Ireland, and other distinguished members of the bench and bar in the United States, the United Kingdom, and Ireland to discuss timely topics relating to the practice of law and the administration of justice.

The complete registration brochure and registration form is available here:

http://www.mmsend75.com/link.cfm?r=18008605&sid=11204218&m=1147368&u=aicf&s=http://www.innsofcourt.org/symposiumregbrochure

Space is limited, so register early! Take advantage of the early registration savings by completing the registration form, which allows you to type in your information, save the file, and e-mail or print the file.

Keep a lookout for the news of additional presenters and other developments at http://www.innsofcourt.org/symposium.

For additional information, contact Cindy Dennis at cdennis@innsofcourt.org or (703) 684-3590, ext. 104.

I. Introduction

At the outset, it is an honor and privilege to be here this morning in

Charlottesville. This event commemorates the career and contributions

of Major General Hugh J. Clausen, The Judge Advocate General of the

Army from 1981 to 1985. The first lecture in this series was given to the

43d Judge Advocate Officer Graduate Course and the 136th Judge

Advocate Officer Basic Course on 22 February 1995, for the dedication

of the Hugh J. Clausen Academic Chair of Leadership. Since that time,

speakers invited to give this lecture have come from various backgrounds

and positions, but all of us share a common respect and admiration for

General Clausen and his enormous and lasting contributions to the Army

legal community. I am grateful to your commander, Brigadier General Miller, and to

your Dean, Colonel Burrell, for their invitation to speak today, and

especially grateful to the Deputy Judge Advocate General, Major

General Tate, for suggesting today’s topic of providing leadership and

advice in high profile cases. General Tate recommended that I provide

you some practical advice based on my years in the Pentagon handling

high profile cases, rather than a more theoretical lecture about leadership.

I am honored that Lieutenant General Chipman, The Judge Advocate

General of the Army, drove down from Washington to be with us today.

I would like to provide special recognition and thanks to Major General

(retired) Altenburg for his presence this morning; John and I were

classmates in the 27th Graduate Course, where we formed a life-long

personal and professional friendship. He was my battle buddy in the

Pentagon during his years serving in the position now known as the

Deputy Judge Advocate General. I would also like to thank my long

time friends and colleagues, John Sanderson and David Graham, for their

intellectual and leadership contributions to the Army and The Judge

Advocate General’s Legal Center and School over many years. I am

honored to have two special outside guests: Colonel (retired) Tom

Strasburg, a former Commander of this School at critical times, and

Colonel (retired) Greg Block, a former Dean here at the School.

My introduction to the Army and the JAG Corps occurred here in

Charlottesville many years ago at the old JAG School, located on the

historic part of Mr. Jefferson’s grounds, where I completed the basic

course. Those were exciting times, as the Army rushed us into

courtrooms around the world to implement changes to the Manual for

Courts-Martial that mandated more attorneys in the legal system,

including the then-revolutionary concept of requiring that the accused

have a lawyer at every special court-martial. Of course, I have returned

many times since then at various stages of my military and civilian

career, including a year at the Graduate Course and several active duty

training tours as the Individual Mobilization Augmentee (in reality, the

Reserve backup) for the Dean. However, I never tire of this place and

always look forward to coming here to talk with other lawyers, greet old

friends, and make new ones.  As I indicated, I want to share with you some

lessons learned from my twenty-seven years of Pentagon experience providing

advice to our most senior Army and Department of Defense (DoD) leaders on

managing high profile cases. However, my first experience with high

profile events came while teaching at West Point in 1976, when the U.S.

Military Academy both admitted the first women cadets and endured the

largest cheating scandal in Academy history, neither of which was

related to the other. Since leaving the Pentagon four years ago, I have

continued to provide advice as a consultant to the Army General Counsel

on management, intelligence, and personnel issues, as well as legislative

and public affairs. Given the size and composition of our force, as well

as the missions that our Soldiers perform, the Army will likely continue

to have a significant number of these cases.

The reality is that, by the time a case becomes of concern to our

senior leaders in the Pentagon, it is already a high profile case in some

respects. Otherwise, we wouldn’t be talking about it. On the other hand,

as I always cautioned my clients, not all cases that come to the

Pentagon’s attention deserve—or even require—the help of higher

headquarters to manage them properly. I have reminded my bosses in

every Administration that lawyers could help them address their

concerns, that there must be no hint of command influence, and that

sometimes their best course of action is patience—a virtue in short

supply in Washington—allowing normal rules and procedures that we all

understand to control the process and work toward an outcome. It is a

fact of life that our senior leaders generally want to be personally and

professionally involved in handling high profile cases, and your job as

lawyers is to provide them comprehensive advice and often to serve as a

buffer for the system to work as designed. For example, you may recall

that the Secretary of the Army and the Chief of Staff travelled to Fort

Hood to demonstrate their concern for the Soldiers, civilians, and

families, and held a press conference on 6 November 2010, just one day

after the tragic shootings.1 However, they carefully refrained from

speculating about the details.2

II. First Things First: Identifying a High Profile Case

You are probably already asking yourself a key question at this

point: How do you identify a high profile case—one of those special

cases that will dominate newspaper, television, and radio coverage; light

up the blogosphere; and provoke extensive public interest? Some facts

and circumstances are so compelling that you will know immediately

that the case will achieve a high profile status. A recent example is the

Fort Hood shootings that I just mentioned. Just look at a few of the

many elements of the case: the cruel irony of the deaths of soldiers and

civilians going through a processing station on a stateside military

installation; the heroism of the first responders; the professional

background and alleged ideology of the accused; the questions about

intelligence failures at various levels; and the promotion and assignment

policies governing a highly-stressed force.

Another example is the alleged Christmas Day bomber last

December, who attempted to ignite explosives during a flight bound for

Detroit. This case contained some of the same elements that marked the

Fort Hood case: the heroism of the passengers on board; the background

and ideology of the accused; the question of intelligence failures at

various levels; and the oversight of air transportation safety. And,

finally, just eleven days ago, another botched terrorist bombing occurred

in Times Square, with many of the same factors: alert street vendors and

professional first-responders and police work; the background and

ideology of the accused; the oversight of air transportation safety and

coordination of threat information; and, eventually, the question of

whether there were intelligence failures, now that government officials

suspect that the Pakistani Taliban appear to have had a role in the

planning and execution of the failed attempt.3

A. Look Under the Radar

It is far more difficult to identify the other category of high profile

cases, those that begin with a somewhat random news story, grow under

the radar for awhile, and emerge full-blown as high profile cases. The

challenge for us as lawyers is to spot just that kind of case, one that first

appears routine but—as the media would say—has “legs” and continues

to play out day after day. Although I’ll say more later about dealing with

the media in high profile cases, my point is that some high profile cases

don’t start that way, but surface routinely in the clutter of other news and

information. For example, the Abu Gharib cases were first reported on

16 January 2004, through a U.S. Central Command press release: “An

investigation has been initiated into reported incidents of detainee abuse

at a Coalition Forces detention facility. The release of specific

information concerning the incidents could hinder the investigation,

which is in its early stages. The investigation will be conducted in a

thorough and professional manner.” Although The New York Times and

Philadelphia Inquirer reported this news contemporaneously, there was

certainly no particular media interest or splash. Meanwhile,

investigations continued throughout the spring by the Criminal

Investigation Division, General Taguba, and the Army Inspector

General. However, the story largely disappeared from the public eye

until the CBS news program, 60 Minutes II, “broke” the story in a

television broadcast, complete with lurid pictures, on 28 April 2004.

Once again proving the old adage that a picture is worth a thousand

words, the story and its images haunted the Bush Administration and

DoD for months and became part of the continuing national conversation

about the conduct of the war and the treatment of detainees.

But this is not just a military phenomenon. Recall the example from

the civilian world just three years ago, when Don Imus made a racially

and sexually derogatory comment about the Rutgers University women’s

basketball team that lost the NCAA championship game. The comment

might have gone unnoticed, but for a media watchdog organization that

posted the video on YouTube. The video prompted protests by some

African-American leaders, but it took another week before the

mainstream media brought the matter to the attention of the wider public

audience. Although Don Imus lost his nationally-syndicated radio show

as a result of the kerfuffle, the subsequent discussion about the roles of

race, hip-hop culture, and the media created a firestorm of controversy.6

Similarly, several years earlier, Senator Trent Lott made a comment

about Senator Strom Thurmond at a party celebrating Thurmond’s 100th

birthday. Referring to Thurmond’s presidential bid in 1948, Lott said: “I

want to say this about my state: When Strom Thurmond ran for

president, we voted for him. We’re proud of it. And if the rest of the

country had followed our lead, we wouldn’t have had all these problems

over all these years, either.”7 Of course, the problem was that Thurmond

had run as a Dixiecrat on a segregationist platform that would have

continued denying fundamental rights to people of color. Although the

mainstream media initially ignored or downplayed Lott’s comments, the

story thrived in the blogosphere and made its way back into a high

profile case that cost Senator Lott his leadership role in the Senate.8

Thus, the challenge is not only to recognize the high profile case as early

as possible when it occurs, but also to spot the case that at first appears

routine, but rapidly develops into a high profile case.

As I tell my graduate students at Duke, in our information age and

twenty-four-hour news cycle, supplemented by blogs, tweets, and

various social media, you can never assume that a bad-news story will

stay under the radar. Rather, you must assume just the opposite: That

someone, somewhere, sometime, will have a cell-phone camera photo, email,

text message, or some other record of practically every

questionable event that occurs, just waiting for the right moment to burst

on to the public stage and play itself out in the media. For example,

recall how the “macaca moment” hurt the senatorial campaign of Senator

George Allen of Virginia in 2006.9 I’ll say more about how to avoid that

mistake later in my remarks.

B. Typical Fact Patterns for High Profile Cases

For now, I would urge you, as you go about your daily work, to

remain alert for the facts and circumstances that will propel a local issue

into the national media. As you might have already concluded, as a very

practical matter, almost every case you handle as lawyers could have the

potential for turning into a high profile case if enough public interest

develops. However, we have learned from experience that certain types

of cases always have potential for that level of scrutiny that I have

described. Here are some of the types of cases with potential to achieve

a high-profile status.

First, suicides and friendly fire incidents are prime examples of

potential high profile cases. Families are usually reluctant to accept the

finding that death resulted from either. It is commonplace for families to

suspect foul play, a conspiracy, or a cover-up. Their feelings are

understandable, so we must go the extra mile to leave no stone unturned

in finding the truth. A recent example is the Tillman friendly fire

investigation, now the subject of Jon Krakauer’s latest book, Where Men

Win Glory: The Odyssey of Pat Tillman, which dissects and criticizes

decisions made at all levels.10 Unfortunately, almost all of you in this

room has probably been, or will be, involved in one of these tragic cases

during the course of your professional careers. Second, crimes which involve the

abuse of a special relationship are always disconcerting. These crimes might involve

misconduct by chaplains, doctors, recruiters, cadre, teachers, or guards—anyone with a

special obligation to provide services in a protected setting where there is

an unequal status. Because these crimes involve an abuse of a trusted

relationship, often in addition to some other underlying crime (such as

sexual assault), we can predict an outpouring of media and congressional

interest. The recurring stories of detainee abuse are prime examples, but

stories persist about abuse of our own military personnel in training and

recruiting environments, as well. A third example includes crimes that involve racist,

extremist, and similar motives, often referred to generically as “hate crimes.” Because

these motives are contrary to the core values of our country and our

military, when they surface as part of a crime, everyone pays attention.

You may recall allegations of these types of crimes at Fort Bragg and

Fort Campbell several years ago. Moreover, whenever skinhead, neo-

Nazi, or militia groups make the news, investigative reporters always

focus on any group members who might have served in the military or

received military-type training in some other setting, such as law

enforcement courses.  A fourth example consists of crimes or other types of misconduct

that involve high-ranking officials, officers, non-commissioned officers

(NCOs), and civilians. During 2005 alone, the Pentagon had cases

involving improper sexual relationships that embarrassed a former Air

Force TJAG and an Army four-star commanding general.12 Of course,

each year brings a new rogues’ gallery of government officials:

governors like Mark Sanford of South Carolina, who gave us a whole

new connotation to “walking the Appalachian Trail,” and former senators

like John Edwards of North Carolina, whose personal lives become

fodder for Oprah and GQ. Again, these leaders occupied positions of

special trust, and the public rightfully expects them to follow the highest

standards of conduct in their personal and professional lives.

Finally—and this by no means exhausts the list—there are cases that

become high profile because of the way that we may have handled or

mishandled an otherwise-routine case that catches the public’s attention

and sympathy. Some typical examples that perennially lurk just under

the radar include the following: holiday displays and public prayers in

military settings, which raise freedom of religion issues; compelling

Soldier stories about child custody issues during deployments and

services for wounded warriors at home; claims of discrimination based

on the usual suspect categories of race, gender, religion, and so forth;

and, of course, investigations leading to discharges based on

controversial personnel policies, such as “Don’t Ask, Don’t Tell.”

III. Two Questions

My first and most important tip in handling high profile cases is to

ask yourself and your client two questions: First, what would we

normally do in a situation like this? And, second, why would we do

anything different in this case? I have found that these two questions put

most cases in perspective and are the best possible protection against

claims arising later that someone got special treatment. In other words,

begin with the presumption that the normal rules will prevail.

Those claims of special treatment usually arise in one of two ways.

Either someone got especially good treatment, and thus got away with

something for which they should have been held accountable; or

someone got especially bad treatment, and thus was unfairly investigated

and punished by the system. You can probably think of instances where

that claim was made in the last several years in both military and civilian

contexts at home and abroad. For example, I can recall a number of

Army cases in which someone claimed that a family or staff member of

the commanding general was stopped on post by the military police, but

not charged, or otherwise treated, as any other person would have been.

This happens in the civilian community, as well. Just last month, a North

Carolina highway patrol captain was stopped while driving extremely

drunk early in the morning. After his supervisor arrived at the scene, the

two officers had the captain’s Mustang towed, drove him to a local hotel,

and filed no report. The captain and the two officers were fired

following an investigation. Another variation on this theme is that lower ranking

Soldiers or officials were held accountable, in a way that senior officers and officials

were not. The public watches for examples of favored treatment,

application of the so-called double standard, and scapegoating in either

the investigation or disposition of allegations. The number of cases

where this claim arises is too numerous to mention, but I’ll point to Abu

Gharib in the military world and the Scooter Libby case in the civilian

world. But I’ll say more about accountability later in my remarks.

For now, the thing to remember is that someone is always watching

to see whether we will do the right thing. A quick story to illustrate this

point: One of my best friends and former Pentagon clients, Mike

Ackerman, was a three-star general and Inspector General of the Army a

few years back. He was flying back from Korea to Washington, coach

class, which is a government requirement, and had a seat in the middle of

the plane, even though he had recently undergone back surgery and could

clearly have justified a better seat if he had been willing to ask for a

doctor’s approval. Several hours later, as Mike hobbled to the restroom,

a sergeant who had served under Mike years earlier, said, “Hey, Sir.

You won me a case of beer.” When Mike asked how that could be the

case, the story unfolded of a bet between the sergeant and his seatmate,

also a non-commissioned officer. After the plane was loaded and ready for takeoff,

the sergeants (also in coach but several rows back from Mike) observed a flight attendant

offer Mike an upgrade to business class because he was a three star

general and the flight was long. The sergeant who did not know Mike

had bet his seatmate a case of beer that he would take the upgrade. The

sergeant who had served under Mike knew about his character and bet

that Mike would not accept the upgrade. In addition to being a great

illustration of the idea is that someone is always watching, this is also a

great story about leadership and integrity: Doing the right thing when no

one is watching, because—you know what—someone is always

watching.

A. The Rule of Law

Following the normal rules also means that we maintain both the

appearance and the reality of the most important and critical aspect of the

criminal and administrative process: the rule of law. The public expects

its officials to adhere to the laws, rules, and regulations that govern the

normal disposition of allegations. After all, as Americans, we have

professed our belief in the rule of law and equal justice under law. And,

as Soldiers and lawyers, you have dedicated your professional lives to

making that vision a reality.

Why am I placing so much emphasis on the importance of following

the rules? In every case in which you deviate from your normal rules,

you will probably be called upon to explain why you did not follow your

normal rules and to justify why you made an exception. Your best

defense almost all the time is that you handled the high profile case just

like any other case. Hence, my advice is to follow the rules that

normally apply and to consider carefully the rationales for any

exceptions. Moreover, any exceptions may also set precedents that could

prove troubling in future cases.

B. Questioning Authority

I do not mean to imply, however, that lawyers should blindly accept

standard solutions or conventional wisdom without questioning whether

the laws, regulations, and policies that might govern the disposition of

allegations make sense as they apply to a particular case. Rather,

lawyers should be the ones asking the hard and critical questions to

ensure that the processes are transparent and the outcomes, just. Among

the reasons this Nation came into existence was the suspicion that

Americans have harbored toward the exercise of authority. You may

recall from our history that King George III’s abuse of judicial and police

powers contributed to the American Revolution. Our Founding Fathers

were so suspicious of the potential authority of a centralized government

that many states would not ratify the Constitution until there was

agreement that the Bill of Rights would be added, guaranteeing rules that

some of you have provided advice on every day, such as the Fourth

Amendment protections against unreasonable searches and seizures and

the Fifth Amendment protections against self-incrimination. My point is

that you have a responsibility as lawyers to question authority, especially

when the questions may not be welcomed. After all, even Thomas

Jefferson, when he was President, blamed his problems with the

Congress on “one hundred and fifty lawyers, whose trade it is, to

question everything, yield nothing, and talk by the hour.” Thus,

lawyers have a proud heritage of asking bothersome questions.

In fact, military lawyers arguably have a greater obligation than most

Soldiers and civilians to raise questions about authority because of the

hierarchical rank structure of a military organization that does not always

appreciate or encourage questions, the special staff relationship that

military lawyers have with their commanders, and our responsibility as

licensed attorneys to uphold the rule of law. It is clear that the current

leadership of DoD wants you to ask questions. Just last month, in a

speech at the U.S. Naval Academy, Secretary of Defense Gates

encouraged the midshipmen to challenge conventional wisdom and

institutional tradition. Secretary Gates pointed to examples of junior

officers who had the nerve and courage to push for the development of

amphibious landing craft, aircraft carriers, and nuclear submarines in the

face of opposition or indifference from their more senior leaders.15

C. Liberty v. Security

We also must recall that one of the basic tensions in our society is

that Americans are conflicted about the extent to which we want our

government to solve our problems. On the one hand, we want our civil

liberties and our privacy protected by and from the government; on the

other, we want government to provide us security, law and order.

Indeed, a debate has raged since 9/11 about where to strike this balance

between liberty and security. The frontline issues for the debate have

included the vexing question of what to do with detainees, including

whether a special terrorist court should be formed to authorize preventive

detention without trial for those too dangerous to release; what level of

interrogation can be justified to avert the “ticking time bomb” scenario;

and how much surveillance of our e-mails and library records we are

willing to accept to have a greater sense of security.

Just look at the reaction to the attempted attack on Northwest Flight

253 outside Detroit on Christmas Day. Five days later, former Vice-

President Cheney claimed that America is less safe because President

Obama was “trying to pretend we are not at war.”16 Others criticized law

enforcement authorities for advising the accused of his rights and

processing his case through the Federal system instead of turning him

over to a special interrogation team and using a military commission to

try him. The Obama Administration was forced to defend itself on all

these counts in the weeks that followed. And similar grumbling about

treatment of the alleged Times Square bomber is already on the airwaves.

Thus, the public policy discussion about where to draw the line

between civil liberties and security is alive and well. A current example

of the debate has centered on the recent Arizona law requiring law

enforcement officers to check immigration documents based on a

reasonable suspicion. While some argue that, given the failure of the

Federal Government to address the problem of illegal immigration, the

Arizona law is the best policy solution, others contend that this law

attempts to usurp Federal authority and legitimize racial profiling. As

you know, a number of lawsuits have already been filed, and the

Administration seems to find itself on the hook to do something, even

though the law has not yet taken effect.

The fact is that our society is interested in what our justice system

does and how we lawyers manage the system. Our civilian and military

justice systems are not “bottom-line” organizations where the only thing

that counts is the results. We are given a special trust when we become

officers of the court as licensed attorneys, in addition to the special trust

and responsibility as military officers. In exchange, we have a special

obligation to support the rule of law. Hence, my bottom line up front consists

of the two questions that will generally lead you to follow your own rules and

depart from them rarely, if ever, with full knowledge that you will have to account to

someone, somewhere, for why you did not follow your own rules. The

central theme becomes adherence to the rule of law, which requires

lawyers and our clients to make independent and impartial judgments to

maintain the credibility of our system of justice.

IV. Who Else Needs to Know?

My second tip for handling high profile cases is to ask yourself this

question: “Who else needs to know?” We must pay attention to the old

adage that bad news never improves with age. Of course you should

ensure that your supervisors, your own command public affairs office,

your own technical legal channels, and your higher headquarters are

tightly in the loop. They will be able to coordinate notifications to the

Pentagon’s oversight community, as well as the oversight committees of

Congress. I mentioned some examples of these types of cases earlier—

those involving suicides, friendly fire, abuses of trusted relationships,

hate crimes, and high-level officials. While laws and policy directives

may require some of these reports, I recommend that you always err on

the side of reporting in close cases. You may be surprised how much

help you can receive from other investigative organizations, like the

Federal Bureau of Investigation (FBI) and your DoD counterparts.

A. Report Early and Often

Why is it so important to keep your higher headquarters up to speed

on bad news? Reporting unfolding crises gives them the heads-up they

need in our information age. Your bosses will be receiving calls from

the senior Pentagon leadership, the Hill, and the media asking what is

going on. They need the information to help ensure that others will have

confidence in your investigation and disposition of the allegations. As a

by-product of our information age, the days are long past when leaders

can delay breaking the bad news to the boss until they have “all the

facts” or a “solution.” Additionally, your credibility increases when you

achieve a reputation for reporting the bad news, as well as the good.

Moreover, your higher headquarters can leverage support from their

oversight bodies, and get their buy-in on your strategies to some extent.

I have seen some controversies fizzle, instead of blossom, when you can

show that you made a timely notification of a problem that appeared

routine to all at the time, but turned out to be high profile. When one of

those “sleeping giant” cases suddenly achieves a high profile, everyone

starts asking the proverbial question, “What did you know, and when did

you know it?” That was the very type of question that made the Pat

Tillman and Jessica Lynch cases so explosive. Wholly aside from any actual

requirements to report incidents to higher headquarters, it just makes good sense for you to be the first one to deliver the bad news. It gives you the opportunity to identify the

potential crimes, frame the issues, lay out your investigative plan, and

establish timelines for, and obstacles to, completing the investigation.

Your oversight bodies will be more inclined to let your investigation

proceed without their interference if they see that you have a plan in

which they have confidence. For at least the past thirty years, the Army has

generally been diligent in disclosing unfavorable stories to senior DoD officials, the

DoD Inspector General, and oversight committees on the Hill. No matter

how unfortunate or ill-advised the incident may be that is the subject of

the report, at least the Army could take some credit for being forthright,

rather than facing accusations of a lack of candor, or worse yet, a coverup.

High-profile crises are particularly susceptible to the charge of

cover-ups, because many details may not be immediately apparent or

releasable to the general public and may, in fact, be privileged or

classified.

B. Learn from the Experience of Others

There is a second compelling reason to ask who else needs to know:

You can tap into the expertise and experience of others. Experts from

outside of your command can help you begin to size the situation and

provide you additional resources or a school solution. The idea is to tap

into their experience, as well as expertise. Rarely are there situations that

someone has not seen before, although when they happen, they challenge

all of us. I suppose that the attacks on 9/11, the devastation of Hurricane

Katrina, and the massive oil spill in the Gulf last month would be in that

category. As someone once said, experience is what you find—when

you are looking for something else.

The perhaps apocryphal story attributed to Sam Walton—the

extremely rich founder of WalMart—describes a conversation at Harvard

Business School between a student and Mr. Walton during a questionand-

answer session, as follows:

Student: What’s your secret? How did you become the richest man

in America?

Walton: It’s easy. Good decisions.

Student: But how? How do you know the good decisions?

Walton: That’s easy too. Experience.

Student: Well, then, how do you get that kind of experience?

Walton: That’s the easiest part of all. Bad decisions.18

The point is to learn from the mistakes that others have made, as well

as our own. In other words, you need not bruise your own leg on every

rock to learn that rocks are hard. Is there anyone among us, who has not

silently thought, when we hear of someone else’s mistake, “There, but

for the grace of God, go I.” In fact, the worst thing you can do is try to

handle the many aspects of a high profile case by yourself. The tragic

story of Karl Wallenda is an example of a leader’s taking on too much

responsibility and not trusting others to help. He led a famous circus

family called the “Flying Wallendas,” which thrilled audiences by their

bold acrobatics and balancing acts on wires high above the center ring.

He eventually would not let anyone else perform all the crucial checks

before each performance that would ensure the safety of the equipment.

His insistence on doing everything himself eventually caused him to fall

to his death, because he did not discover during his checks that several

ropes securing the wire were not properly connected.19

Teamwork is the key, and all of us are players. And you can never

tell where you will find the best idea. Hence, reaching out to others

becomes an imperative. During a speech a couple of years ago at West

Point, Secretary Gates said that he had found it invaluable in his trips to

the field to meet with and listen to lower-ranking soldiers to help shape

his approach to decisions. He advised everyone in senior positions to

 “listen to enlisted soldiers, NCOs, and company and field-grade officers.

They are the ones on the frontline, and they know the real story.”20

I can guarantee that you can expect to make mistakes if you are

engaged in the front lines of our business. The key is to identify the

mistakes early on. I have found that the best way to do that is to

cultivate open and honest relationships with your subordinates, peers,

and superiors, who will keep you out of trouble by pointing out

something you missed. In other words, always listen to the other players,

especially in high profile cases. You can never tell who will have the

best idea, but it may be from the player on the field, who is closest to the

action and understands the terrain.

And don’t be wedded to a course of action that you previously

supported, especially when facts and circumstances begin to shift in a

way that makes you question whether your initial assumptions or

previous judgments are still correct. For example, after I had objected to

a course of action proposed by one of my Pentagon client organizations,

their staff members would occasionally show me a somewhat similar

action that I had approved years earlier in an effort to persuade me (or

perhaps embarrass me) so that I would withdraw my objection. When

that happened, thankfully not too often, I usually told them that I was not

bound by my previous opinions because one of three things could have

happened: the law and regulations could have changed, the facts and

circumstances might be different, or I had learned from my earlier

mistake and would not repeat it for the sake of being consistent.

V. Be Prepared for an Investigation of the Investigation

That gets me to the third tip: Handle your case as if you might have

to explain your investigative plan, decisions, and results to outside

organizations, such as the DoD Inspector General or FBI, or to a House

or Senate Committee conducting their own investigation into what you

did. I have been in the position of having to account to every one of

these organizations for some Army investigation during my time in the

Pentagon. You need to expect oversight by others, and plan for it, so that

when someone comes to “investigate the investigators,” you are prepared

to show that you followed the rules. The price of your independence is

your accountability to the rule of law, which involves answering

questions posed by others with some authority and responsibility over

your organization. Don’t resent the questions or the questioners, even if

you are tempted to do so as a normal human response.

A. Congressional Relations

I mentioned earlier that one of the first notifications should be to

your congressional oversight committees. Depending on the

relationships between the President’s Administration and the Congress—

and these relationships vary greatly from Administration to

Administration (and sometimes within the same Administration when

there is a change in the composition of the Congress)—you might be able

to leverage both internal and external congressional support for your

position. Public statements of support from key congressional leaders

can provide a public shield for your investigations and their results. For

example, information, such as classified documents, that you cannot

release to the public might be legitimately shared with oversight

committees, enabling them to affirm to the public that they have looked

into the matter and are satisfied that the military’s handling of the

situation was reasonable under the circumstances, even if they too

disagreed with the ultimate outcome.

Sharing information about high profile cases early on, and regularly

thereafter, with congressional oversight committees serves other

overlapping purposes. First, it gives our congressional oversight

community a heads-up about a subject that will eventually be on their

radar screens anyway. My experience is that you can either take the

initiative and give the members and staff a chance to prepare a hopefullysupportive

statement about a case, or, instead, you can wait until they

call and complain about being blindsided about a case that falls within

their jurisdiction. Second, the military should take advantage of every

opportunity to educate members and staff about what you do. A

shrinking number of veterans serve as elected representatives, and many

staffers have no firsthand understanding—and therefore no contextual

knowledge—of the military or of the military judicial system. Thus,

each case can become a famed “teachable moment” and learning

experience about the role of a general court-martial convening authority

and the central relationship between that responsibility and good order

and discipline. If members and staff understand the independent nature

of your prosecutorial, defense, and judicial functions, and how well

insulated they are from unlawful command influence, they may be

willing to forego,or at least postpone, their own inquiry or investigation

into the matters at hand.

Several encouraging signs have emerged over the past few years.

First, the debate over various versions of military commissions bills has

exposed members and staff to the details of the court-martial system and

people like you who make it work. Second, we are now seeing more and

more former military members seek elective office and staff positions on

the Hill, trends that should bode well for the future support for our

military forces. Third, the recent elevation of the Military Service Judge

Advocates General to Lieutenant General is clear evidence and

affirmation of the important role that military lawyers play in our system

of justice. However, the lesson I learned is that we have a continuing

duty to educate others. We cannot take for granted that everyone

understands and accepts the need for independence that we follow as our

fundamental operating principle.

B. Congressional Investigations

A recurring challenge in ongoing investigations, especially if there is

intense media or congressional interest, is handling requests from

congressional oversight committees for access to information before the

criminal investigation and proceedings are complete. According to news

reports in the past few weeks, for example, Senator Liebermann has

demanded access to certain information regarding the investigations

surrounding the Fort Hood shootings. Although the Pentagon reportedly

has made some information available, other information and witnesses

have not been made available so as not to interfere with the ongoing

criminal investigation. In many cases, some compromise can be reached,

but if not, congressional subpoenas are possible.21 If the military is

participating with the FBI in a joint investigation, I have also found it

useful to request that FBI officials visit with members and staff to

explain our joint concerns.

Full-blown congressional investigations are always a possibility in

high profile cases. A recent example is the exhaustive inquiry by the

Senate Armed Service Committee into the abuse of detainees. Their

report, issued in December 2008, detailed the history of policies and

procedures from the White House, Department of Justice, DoD, and

Central Intelligence Agency based on comprehensive interviews and

document searches. The report concluded that “senior officials in the

United States government solicited information on how to use aggressive

techniques, redefined the law to create the appearance of their legality,

and authorized their use against detainees.” On the other hand, a

spokesman for Secretary Rumsfeld called it “regrettable that Senator

Levin has decided to use the committee’s time and taxpayer dollars to

make unfounded allegations against those who have served our nation,”

based on a “false narrative . . . unencumbered by the preponderance of

the facts.”

C. Plan for Full Transparency

No matter where you come out on the report’s conclusions, the point

is very clear that you need to prepare for intense outside scrutiny in any

high profile case. For planning purposes, you must assume that

eventually all the information surrounding an incident, including your

own legal advice and opinions, will surface and be made public. No

matter how confidential, classified, or privileged you may think that

discussions you have about investigations and their disposition may be,

count on everything becoming public some day and act accordingly.

During the years that I worked on intelligence operations and

projects, many of the most secret and highly classified operations on

which I provided advice eventually became public for one reason or

another. An example is the then-secret underground facility built during

the construction of the West Virginia Wing of the Greenbrier Hotel in

West Virginia. The new wing provided cover for an independently

functional, concealed alternative site for the relocation of the senior

leaders of the Federal Government in the event of a nuclear strike.

Conceived during the Eisenhower Administration, the contingency

facility was built from 1959 to 1962 and remained a closely guarded

secret until The Washington Post broke the story in 1992. This story

illustrates that we should never assume that, because something is known

by only a few select individuals today, the world won’t know it by

tomorrow. E-mails, text messages, and social media virtually guarantee

transparency, if mainstream media do not.

VI. Help the Media Frame the Story

My fourth tip is for you to consider how to frame the story, to handle

press inquiries, and to provide enough information so that news

organizations will be able to understand and report on your story. As a

general rule, the Army routinely publicizes most of its activities and

seeks forums in which to tell Soldier stories. As an exception, the Army

generally does not comment on operational matters, ongoing

investigations and litigation, even in response to media inquiries.

However, there are times when comments may be appropriate, and in

those times, you must be careful to consider three basic principles:

A. Be Honest and Open with the Media

First, tell the media as much as you can as soon as possible. If

information and records would be releasable under the Freedom of

Information Act, you generally should encourage your clients to initiate

the release of those facts, rather than require the media to submit a

written request. If you don’t know the answer, say that you don’t.

Despite efforts by your clients to “go directly to the public” with their

story, the media will inevitably interpret the story based on their own

understanding. As a lawyer, you can provide valuable background and

legal context that will educate the media and enable fair and balanced

reporting. Indeed, legal background by subject matter experts became

routine for high profile cases during my time at the Pentagon. Although

the media may not report the story the way that you framed it for them,

you will be on the record with your interpretation of the events.

For obvious ethical and practical reasons, your clients should never

lie to, or mislead, the media. I even recommend against “spinning” a

story in such a way that might call your credibility into question. The

long term trust between the DoD and the media is more important than

the temporary advantages one may think will accrue from parsing the

truth in a particular case. We Americans remain sensitive to the notion

that our government, and especially our military, might somehow try to

manage the news that we receive. The lessons learned from the fall-out

of the Jessica Lynch and Pat Tillman stories, during the course of which

many felt that false stories either were propagated, or allowed to linger,

should always be at the forefront of our minds.

Just look at the concern generated by media reports in August 2009

that DoD had a contract with a public relations firm, whose job was to

review applications by reporters to embed with our military units and

grade their past reporting as neutral, positive, or negative. Although the

Pentagon denied that these reports were crucial to decisions about future

embeds, the controversy surfaced again the following December during

the confirmation process of Douglas Wilson, the nominee for Assistant

Secretary of Defense for Public Affairs. Mr. Wilson told the Senate

Armed Services Committee that he opposed the rating system for

reporters’ coverage, as well as any discrimination against “unfriendly

reporters” during the credentialing process for reporters who want to

embed with our troops. In his written statement to the Committee, Mr.

Wilson said, “In my view, we should never be a party to efforts to place

so-called ‘friendly reporters’ into embeds while blocking so-called

‘unfriendly reporters.’”25 The Senate confirmed him in February 2010,

but the message is clear that fairness and credibility are essential in

dealing with the media at all times, especially in high-profile cases.

Most of us recognize that strategic information and communications

operations are crucial to our fight against threats posed by al Qaeda and

its affiliates, who use the Internet and other media to promote their

propaganda, mobilize support, and radicalize followers. As several

pundits have humorously observed, the U.S. often seems to be outcommunicated

by folks whose material originates from caves in

Afghanistan and Pakistan. Despite our desperate need for better

communications strategies, the Pentagon has reportedly ordered at least

two reviews in the past six months of their information operations

programs to get a better handle on how much money is spent and for

what, especially in light of the recent allegations that contractors were

locating insurgents while pretending to be gathering information.26 A

recurring theme in these reviews is the extent to which information

operations overseas are openly attributed to the U.S. Government and

apparent to the consumers of the information.

B. Defend the System

Second, step up the plate and defend our system of justice, even

when it is difficult to understand or justify a particular result. In any

legal system governed by the rule of law, but administered by all of us

humans, you will sometimes get results that are unpopular and hard to

accept, as when a jury seems to ignore evidence establishing guilt, or a

commander decides to take little or no apparent action in a case where

others are screaming for heads to roll. At those times, particularly in

high profile cases, the public understandably may question whether we

have a fair and independent system that reaches the right results.

This push for a public explanation often presents a dilemma. For a

lot of reasons that have to do with the way that our government leaders

have made decisions in the past, the public and the Congress demand a

fair amount of transparency, arguing for the maximum disclosure of

information. On the other hand, there are legitimate privacy interests at

stake, as well as the independence of those exercising judicial and

administrative authority. Should we put those who play critical roles in

our judicial system—judges, juries, and commanders exercising judicial

functions—in the position of having to defend the exercise of the

discretion allowed them by law to do justice, especially if the public

doesn’t like the outcome? Isn’t that one reason that Federal judges have

lifetime appointments, so that they can do the right thing and uphold the

rule of law without fear of recriminations? On the other hand, don’t we

expect public officials to be held accountable for their exercise of

authority, especially when justice is at stake? Again, the key is to strike

the right balance between providing as much information as possible to

ensure public confidence in the military and its decisions, on the one

hand, and preserving important principles, on the other.

This will be a test of your leadership. These dilemmas require you

as lawyers to step up as leaders and make the case on behalf of the

system in which you work, a system based on the rule of law. When it

comes to talking about or defending the outcomes in particular cases or

classes of cases, you should say as much as you comfortably can, within

the rules of professional conduct and privacy considerations. But here is

the key point: You should be able to defend and explain the system even

when you have difficulty explaining the specific outcome that has

aroused the public’s interest or, perhaps, anger. As I mentioned earlier,

any public statements of support from key congressional leaders can also

help reassure the public that the system was working as designed and in

accordance with the rule of law.

As a practical matter, that means that your leaders at your immediate

commands and your higher headquarters must continue to rely—as they

have in the past—on the outstanding work that you do as leaders and

lawyers every day in your locations around the world. They must rely

on, and have faith in, the premise that you are following the laws,

regulations, and policies that control the procedures and outcomes in all

cases—routine and high profile. When it is necessary for your senior

leadership to explain to the Office of the Secretary of Defense, the DoD

IG, the Congress, the media, and the general public what you have done

in a particular case, they will have faith that you will have done the right

thing, and no one will be embarrassed. They will have faith that you

have followed the rules, even when the rules were time consuming and

seemed to impede the progress of your work at the time.

C. Calculate Your Media Responses

Third, take the long view of media issues. Time and again, I have

advised public affairs officers not to respond to a frivolous one-day story

in the paper. I have found that some stories interest only folks inside the

Capital Beltway, and there will be little or no interest outside the

Beltway. Responding will only make this kind of story a two or three

day story, because, once you respond, the reporter will write another

story. Some stories will die of their own weight if you let them. As

always, the most difficult task is identifying which story has “legs” and

high-profile potential.

VII. Coordinate Multiple Investigations and Ensure Their Credibility

My fifth tip is for you to assume leadership in coordinating the

multiple and overlapping investigations that almost always accompany a

high profile case. Your command sometimes must begin to examine a

management, safety, or leadership problem before you have had time to

investigate fully the allegations that brought the problem to the

command’s attention. This happens often in safety investigations

following aircraft accidents or friendly fire incidents. Although it is

important to know who or what was responsible for the mishap, the most

immediate challenge is to prevent another tragic recurrence. As lawyers,

you are in the best position to exercise leadership and influence

involving investigations, to give advice about the types of investigations

that may be appropriate, and to avoid conflicts among ongoing

investigations.

If it is fairly certain that the incident might lead to criminal charges,

you can ensure that any informal inquiry, Army Regulation 15-6 or other

administrative investigation, or IG investigation will not muddy the

water and interfere with your criminal investigation and eventual

prosecution. Lawyers are uniquely positioned to coordinate

investigations so that they complement each other, pursue the proper

lines of inquiry, and preserve the option of prosecution where

appropriate. Otherwise, investigators may be tripping over each other,

creating conflict among witnesses, and otherwise breeding evidentiary

problems. A recent example of this unfortunate outcome involved the

infamous shootings by private security contractors, resulting in the

deaths of fourteen Iraqi citizens in a traffic circle in Baghdad in

September 2007. Judge Urbina dismissed the charges against five

Blackwater employees in January 2010 because of the botched

investigations and prosecutions. Although the Department of Justice is

appealing the dismissal, the lesson about coordinating multiple

investigations is clear. Where several investigative efforts are

proceeding simultaneously, my advice is simple and to the point: The

criminal investigative effort should have a green light, and every other

investigation should have a flashing yellow caution, which requires the

lawyer’s approval to proceed.

Another factor to think about as you decide how to approach the

investigation is whether your organization can investigate the allegations

at all with any credibility. Depending on the size and scope of the case,

the President or Secretary of Defense may form a commission of

outsiders, typically former senior officials from all three branches of

Government with the background and experience to lend credibility to

their findings and recommendations. The deliberations of these

commissions may be subject to the provisions of the Federal Advisory

Committee Act, a point often overlooked at the beginning in the

eagerness to buy the time and cover that these commission often provide.

Even so, because the military is often criticized for investigating

itself, you should consider whether you should refer the matter to higher

headquarters or another appropriate agency, such as the FBI or the

Defense Criminal Investigative Service. As unfair as this criticism may

be, and although our clients understandably resent having some outsiders

come into their organizations and take care of their dirty laundry, I have

recommended to my Pentagon clients from time to time that the most

practical and efficient course of action was to ask the FBI, DoD

Inspector General, or a sister service to come in and conduct an

investigation. This was because I knew that the Congress and the public

would never accept the credibility of an investigation by any Army

element. On the other hand, you must remain alert to discourage other

investigative agencies without clear authority from expanding their

jurisdiction creatively into Army activities when the Army is clearly

capable of a credible investigation. A comfortable middle ground in

some cases might be a joint investigation with the FBI or other agencies

with which there is overlapping jurisdiction.

When your organization is conducting an investigation, watch for

conflicts that may develop for investigating officers and agents because

of preexisting relationships. If an agency is—or had been—too close to

the functions or people under investigation, look for alternatives.

Similarly, you should alert investigative officers to identify issues

uncovered during the course of their investigations that are not within the

scope of their inquiry but should be referred to another agency or office

for follow up.

VIII. Whom Do You Hold Accountable?

Finally, my sixth tip is to think about accountability as you come to

closure. When you think about accountability in today’s environment,

you cannot ignore the events of the past couple of years. Consider the

public interest in accountability in our national security community:

--the questions raised about the National Security

Agency’s terrorist surveillance program, and the issues

of how much information was shared and who objected

during high level briefings to a small number of key

congressional leaders;

--the questions raised by the Judiciary and Armed

Services Committees of the Senate about senior leaders’

and lawyers’ accountability for the interrogation rules

and policies that the Senate Armed Service Committee

found contributed to coercive interrogation practices;

--the continuing questions about who was

responsible for intelligence and air safety failures in

connection with the alleged Detroit bomber; and

--the questions under review by a special prosecutor

about whether Central Intelligence Agency (CIA) agents

violated Federal laws during overseas interrogations of

detainees.28 (You may recall that former Vice President

Cheney opposed the decision as a political move to

satisfy the liberal wing of the Democratic Party and

expressed concern that the review might hamper the

willingness of agents in the future to do their jobs.29 On

the other hand, the appointment of the special prosecutor

was based on the findings of the CIA’s own Inspector

General that agents had exceeded the limitations in

effect at the time of the interrogations and used

My point is that we cannot afford to overlook the accountability

piece of the equation. There are a lot of Monday morning quarterbacks

out there, and as Norman Augustine, former Chief Executive Officer of

Lockheed Martin, once wrote about people like auditors, inspectors, and

Monday morning quarterbacks, “Murphy taught that if anything can go

wrong it will, but it was left to Evans and Bjorn to point out in their law,

‘No matter what goes wrong, there will always be someone who knew it

would.’”

If you look at the track record of the current Secretary of Defense,

you will see clear evidence of his willingness to hold senior officials

accountable. Secretary Gates remarked back in February, when he

replaced the major general in charge of the Joint Strike Fighter program,

“If I’ve set one tone at the Department of Defense, it’s that when things

go wrong, people will be held accountable.” Indeed, the list of senior

officials he has relieved is impressive, including the top U.S. commander

in Afghanistan in 2009, the Air Force Secretary and Chief of Staff (on

the same day) in 2008 in connection with the control of nuclear weapons,

and the Secretary of the Army in 2007 as an outgrowth of the treatment

of wounded warriors at Walter Reed Army Medical Center.

What this means to us—as practicing lawyers—is that we should

think through accountability issues and identify them for our leaders and

clients. This requires brutal honesty, at times, because our leaders—and

even we—may bear some responsibility. I believe that our clients in the

highest levels of the Executive Department and our officials in the

oversight community expect and deserve our best effort—a procedure for

fair investigation, analysis, and review. They will be more likely to

accept our judgments, even if they do not agree with them, if we can

show that the accountability process was open and even-handed.

A word of caution: All of us who are players get roughed up from

time to time. This is especially a problem for lawyers. When things go

wrong, our clients have an annoying and predictable tendency to blame

us, in addition to relying on us to get the command or them out of a box.

As unfair as this often may be, we cannot turn away from the action; we

cannot play it so safe that we become irrelevant and ineffective. We

must not be intimidated by those looking over our shoulders, but must

continue to do what government attorneys always should do: Speak truth

to power.

IX. Conclusion

So to summarize my thoughts, I am leaving you with six suggestions

about how you can exercise leadership and provide advice after you have

identified a case with high profile potential:

1. Ask what the normal rules are and why you would

not follow them in the high profile case. That

becomes your best defense against later claims of

preferential treatment or double standards.

2. Ask the question, “Who else needs to know?” Keep

your headquarters and oversight bodies in the

information loop. Err on the side of over-reporting

to enhance your credibility. And take advantage of

the expertise and experience of others who have

“been there, done that, and have the t-shirt.”

3. Conduct your investigation as if you will have to

account to an oversight authority for every decision

and action you take.

4. Consider how to frame stories and handle press

inquiries without misleading the media. Step up to

defend the system, even when you cannot defend the

specific decision.

5. Exercise leadership in coordinating multiple

investigations, and keep a balanced perspective on

who should conduct investigations.

6. Think carefully about accountability.

In closing, I want to thank all of those who made the arrangements

for this event and for your hospitality during my stay here. I also want to

thank the staff and faculty for the outstanding service that you provide

our legal community and our Nation. This Legal Center and School has

clearly become the epicenter of military legal education. I wish to

congratulate all the members of the 58th Graduate Course, to thank you

for your continuing service, and to wish you the best in your new

assignments around the world. And, finally, I want to offer a word of

special thanks to those who have served in harm’s way, and those going

to assignments where an overseas deployment is on your radar. You and

your families will always have our deepest appreciation for your

sacrifices and will remain in our prayers.

*For citations see 366 MILITARY LAW REVIEW [Vol. 204]

Morehouse Hall named in honor of General David C. Morehouse



Memorial Board in the entrance hall of Morehouse Hall

• The Air Force JAG School has a new Commandant. Colonel Holly Stone took command in June of 2010 relieving Colonel Tonya Hagmaier who has assumed duties as the Staff Judge Advocate for Pacific Command.

• Colonel Stone, a Kentuckian, was a Phi Beta Kappa graduate of the University of Kentucky. She also attended law school at UK. Her most recent assignment was as the Staff Judge Advocate for 18th Air Force at Scott AFB, Illinois. Prior to that she was the Deputy Staff Judge Advocate for Air Mobility Command and served a four year tour as Senior Judge on the Air Force Court of Criminal Appeals. In the mid 90s, Colonel Stone was an instructor at the JAG School. Her goal as Commandant is to ensure the School always meets the fundamental needs of commanders and other clients. The Foundation looks forward to working with Colonel Stone to help her meet that goal.

• Foundation trustees made significant contributions both inside and outside the classroom during the Gateway II leadership course held 9-27 August 2010, providing mentorship for field grade judge advocates advancing to the next level of their careers. At the outset, Col Gordon Wilder (ret) taught an insightful class with faculty member Col Tom Becker (ret) on how to effectively respond to Congressional requests for information and draft legilsative initiatives. Additionally, Brig Gen Olan Waldrop (ret), Brig Gen Jarisse Sanborn (ret), Col Steven Linder (ret), and Col John Martinez (ret) each served as class senior mentors, participating with their four student flights in the Gateway's challenging capstone exercise, JAGWAR. Taking place over two full days at the Air Force Wargaming Institute on Maxwell AFB, JAGWAR required students to quickly respond to a dizzying array of front-burner legal issues experienced both on the home front and in the deployed environment. JSF members had the opportunity to directly observe, informally advise, and closely interact with their student teams, providing valuable feedback. Flights briefed commanders on time-sensitive issues and dealt with the media during a simulated press conference. JSF member came away from their time at JAGWAR deeply impressed at how new field grade judge advocates were able to work effectively both as individuals and teams, incorporating lessons learned from Gateway's intensive three-week curriculum. Based on the extremely positive student feedback for JAGWAR, AFJAGS hopes to involve additional JAGC senior mentors for the Gateway III course in January 2011.

• On August 26, 2010, the JAG School and JSF hosted the first-annual Major General David C. Morehouse Distinguished Lecture Series, featuring a riveting presentation from Professor Jeffry Addicott, President, Brig Gen Olan Waldrop, opened the series by remarking on Maj Gen Morehouse's legacy, while welcoming Lt Gen Richard C. Harding, the Judge Advocate General and over 70 distinguished guests to the JAG School, including General John A. Shaud (ret), several Federal District Court judges, as well as local university professors and law students. A catered reception was held immediately following the event in the JAG school atrium, providing guests a chance to meet AFJAGS leadership and JSF members including Brig Gen Waldrop, Brig Gen Jarrise Sanborn, and Col Steven Linder. Funded by the Foundation, the purpose of the Morehouse Lecture series is to enhance the reputation of the school within Maxwell AFB and the local community by featuring distinguished speakers to lecture on current topics of interest to the legal and military community.

• Interesting JAG School facts:
• During the fiscal year 2010 the JAG School schedule included 30 courses that were offered on 43 occasions with students in the facility 50 weeks of the year.
• Additionally in fiscal year 2010, the School offered two new courses: (1) an orientation course for civilian employees of the JAG Corps and the Office of the General Counsel, and (2) Gateway as described above.
• The faculty currently consists of 32 officer and civilian attorneys, 15 paralegal instructors, and 15 members of the Air Reserve component.

For the latest news and more information about how you can help support the AF JAG School Foundation please visit: www.jagschoolfoundation.org. Look for us on Facebook and Linkedin.

A Message from the Staff Judge Advocate to the Commandant of the Marine Corps

On behalf of the legal community of the U.S. Marine Corps, I am pleased to present this Annual Report to the American Bar Association (ABA), the Military Law Committee, and the Standing Committee for Armed Forces Law (SCAFL). 

It has been an eventful year of transition for the Marine Corps and our legal community.   As the focus of combat operations shifted from Iraq to Afghanistan, our operational law requirements continued to evolve.  Military justice, traditionally our primary legal mission, saw another year with a reduction in the number of general and special courts.  In addition, the continued high operational tempo contributed to a steady demand for legal assistance.  To meet these challenges, I have asked our Marine legal community to make a renewed commitment to gaining efficiency while we continue to improve the delivery of legal services to our Commanders, Marines, Sailors, and family members.   

This focus on efficiency led to a number of initiatives.  In February 2010, the Marine Corps adopted a new Case Management System (CMS).   For the Marine Corps, our new CMS represents the first mandatory, world-wide system to provide total transparency over the court-martial process from the date a request for legal services is submitted by a command to a law center, through all pre-trial and post-trial actions, until the case is docketed for appellate review at the Navy Marine Corps Court of Appeals.  In the six months since CMS was implemented,  we have seen a vast improvement in post-trial processing time across the Marine Corps. 

The Marine Corps has also recently instituted a new, formal inspection regime for the delivery of legal services at Marine Law Centers and Legal Services Support Sections.  This new regime allows commanding generals to use subject matter experts to conduct inspections of their local law centers to ensure the legal services provided meet our high standards.

In May 2010 we gained approval of our request to officially move the Marine Reserve Legal Services Support Section from Mobilization Command to the Judge Advocate Division at the Pentagon.  This move better integrates our reserve legal community into the total force and ensures that the judge advocates in the reserve component are placed in those positions where they are most needed.  The Marine Corps has also increased our recruiting mission to sixty new attorneys each year and we are holding two boards that will bring a number of former judge advocates back on active duty.  All of these initiatives augment our inventory of judge advocates and improve our ability to meet  our wartime commitments.   

As the Marine Corps continues to evolve and adapt to the challenges it will face in the next decade, our Marine legal community must also anticipate those challenges and adapt to meet them.  The one constant is the tremendous dedication our young Marines demonstrate every day in dealing with the multitude of complex legal issues that arise every day in support of Marine Corps forces around the globe.   As we go forward, the Marine legal community will continue to demonstrate the pride, professionalism, and dedication to excellence that are the hallmark of Marines everywhere.

                                                                              VAUGHN A. ARY

                                                                              Major General

                                                                              U.S. Marine Corps

Table of Contents

1.0      Introduction. 1

1.1     Judge Advocate Division (JAD) 2

2.0      Judge Advocate Support Branch (JAS) 3

2.1     Mission. 3

2.2     Personnel 3

2.3     Becoming a Judge Advocate. 4

2.4     Continuing Legal Education (CLE) and Advanced Training. 4

2.5     Law School Education Debt Subsidy (LSEDS) 4

2.6     Forward Deployed Judge Advocates. 5

2.7     Legal Administration Officers. 5

2.8     Enlisted Training and Support 5

2.9     Reserve Judge Advocates. 6

2.9.1       Judge Advocates and Legal Services. 6

2.9.2       Mobilization. 6

2.9.3       Management 6

2.9.4       Training. 6

3.0      Military Law Branch (JAM) 7

3.1     Mission. 7

3.2     Military Justice. 7

3.3     Joint Service Committee on Military Justice. 7

3.4     Victim Witness Assistance Program (VWAP) 8

3.5     Sexual Assault Policies. 8

3.6     Deployed Justice. 8

    3.7      Military Commissions………………………………………………………………………………………..8

    3.8     Trial Counsel Assistance Program and Share Point Website for Military Justice Practitioners……..……….9

4.0      International and Operational Law Branch (JAO) 10

4.1     Mission. 10

4.2     Judge Advocates and Operation Enduring Freedom... 10

4.3     Law of War Training. 10

5.0      Research and Civil Law Branch (JAR) 10

5.1     Mission. 10

6.0      Legal Assistance Policy Branch (JAL) 11

6.1  Mission…… …………………………………………………………………………………………………………...11

6.2     Wounded Warrior Attorney Program (WWAP) 11

6.3     2010 Tax Preparation and Filing. 11

6.4     Immigration. 12

6.5     Exceptional Family Member Program (EFMP) Attorneys. 12

6.6     Outside Resources. 12

7.0      Information, Plans and Programs Branch (JAI) 12

7.1     Mission. 12

7.2     Responsibilities. 12

7.3     The Judge Advocate Division Website. 13

7.4     Case Management System (CMS) 14

7.5     Navy Marine Corps Intranet (NMCI) Network. 14

1.0      Introduction

The Marine Corps legal community consists of Judge Advocates, Legal Administrative Officers and Legal Services Specialists.  While the Marines who fill these billets come from diverse and colorful backgrounds, all of them share the common desire to serve their country and make a difference with their lives in this world.  They were attracted to the Marine Corps by its simple promise, “Earned, Never Given.”  

Marine Corps Judge Advocates perform all manner of legal services.  In the field of military justice, they serve as prosecutors, defense counsel, military judges, appellate judges and appellate counsel for both the government and accused service members.  Marine Judge Advocates play a key role in ensuring the health of the force by helping Marines maintain personal legal readiness before deployments. Our judge advocates assist Marines with issues involving estate planning, domestic relations law, consumer law, tax law, property law, landlord and tenant law, debtor and creditor law, adoptions, and citizenship cases.  These services are offered not only to active duty service members, but also to dependent family members and military retirees. 

Marine lawyers also advise commanders during military operations, reviewing military operational plans and providing advice on the law of war, rules of engagement, and domestic law relating to the employment of force.  Other areas of practice include civil law, contract law, international law, claims, tort law, and labor law.  In addition, because Marine Corps Judge Advocates are unrestricted line officers, many serve in non-legal billets.  For example, a Marine Judge Advocate currently instructs Naval Reserve Officer Training Corps students at the University of Pennsylvania.  Additionally, six Marine judge advocates hold positions of command to include:  Commander, Marine Corps Base Camp Lejeune, battalion commands at Marine Corps Recruit Depot (MCRD) Parris Island, South Carolina, and MCRD San Diego, California, and command of Marine Security Guard companies in Fort Lauderdale, Florida and Frankfurt, Germany.  Most importantly, though, Marine Judge Advocates are trained to be problem solvers.  So no matter the issue, whether legal or operational, they can be relied upon to give valuable, candid and timely advice to any client, from young Marines needing legal assistance to seasoned commanders in combat.

Legal Administrative Officers, who come from our Warrant Officer ranks, provide review and guidance in administrative investigations, preliminary inquiries, and claims against the government.  Additionally, Legal Administrative Officers process many of our involuntary administrative separation cases, serve as recorders for administrative discharge boards, and serve as Foreign Claims Commissioners during deployments and exercises.  Our enlisted Legal Services Specialists’ responsibilities encompass every facet of legal administration.  The Legal Services Specialist’s general duties include the legal operational, managerial, clerical, and administrative duties incident to a law center.  The Legal Administrative Officers and Legal Services Specialists are the administrative backbone of our legal community.

.

1.1     Judge Advocate Division (JAD)

JAD supports the SJA to CMC in performing his duties as a special assistant and legal advisor to the CMC, the occupational field manager for the 44XX Military Occupational Specialty, and the provider of legal services to headquarters staff agencies on all legal matters with exception of business and commercial activities, environmental law, and civilian personnel law, which fall under the cognizance of the Counsel for the CMC.  JAD is composed of the following branches:

2.0     Judge Advocate Support Branch (JAS)

2.1  Mission

JAS serves as the occupational field sponsor for all active duty judge advocates (JA) and coordinates with the Marine Corps Manpower Division on staffing judge advocates throughout the Marine Corps.  JAS also provides information and guidance to the judge advocate community on issues such as career progression, assignments, promotions, continuing legal education and advanced degree programs, Law School Education Debt Subsidy (LSEDS), promotions, command slating, and selection board membership.  Additionally, JAS supports the annual Marine Corps SJA Conference, and SJA to CMC inspections of all Marine Corps law centers under Article 6 of the Uniform Code of Military Justice. 

2.2  Personnel

While the total number fluctuates, there are currently 443 active duty judge advocates in the Marine Corps.  The highest ranking judge advocate is currently a major general and he carries the title of SJA to CMC.  Additionally, there are 17 warrant officers that serve as legal administrative officers and 554 enlisted Marines that serve as legal support specialists and court reporters.  These Marines serve at installations throughout the United States and overseas, with the largest concentrations on the East and West Coasts and in Okinawa, Japan. 

In 2009, the Marine Corps increased accessions of law students and currently contracts approximately 60 judge advocates per year from civilian law schools and private practice through routine recruiting channels.  Additionally, up to 10 judge advocates are contracted yearly from the active duty officer population through the Marine Corps Law Education Programs.  The Marine Corps Recruiting Command uses a highly competitive board process to screen all applicants and select only the most qualified.  Applicants come from diverse backgrounds but can generally be described as coming from first or second tier ABA accredited law schools and having an average LSAT score above the 80th percentile of all scores. In 2010, the Marine Corps also held the first of two scheduled return to active duty (RAD) boards to bring back former judge advocates or former officers who had gotten out to pursue a law degree.  The Board selected six officers for RAD.  The second board is planned for August 2010.   

2.3  Becoming a Judge Advocate

Once selected by the Marine Corps Recruiting Command, officer candidates must undergo a lengthy, four-step process to become a Marine Corps judge advocate.  First, future judge advocates must attend Officer Candidate School (OCS) in Quantico, Virginia.  This strenuous ten-week course is designed to test a candidate’s leadership and physical abilities.  Successful completion of OCS is required before receiving a commission as a Marine Second Lieutenant.  Second, all Marine Corps officers attend The Basic School (TBS), also located in Quantico, Virginia.  Prospective Marine judge advocates attend TBS upon completion of OCS and successfully passing the bar examination of any state.  Unlike our sister services, Marine Corps officers are unrestricted line officers and are regularly called upon to perform duties outside of the law.  The Basic School is a demanding six-month program that provides each lieutenant the foundation to be an infantry platoon commander.  Third, each judge advocate must complete the ten-week Basic Lawyer Course at the Naval Justice School (NJS) in Newport, Rhode Island.  While attending this course, judge advocates focus on legal assistance, administrative law, and military trial advocacy.  Finally, each judge advocate must successfully complete the Basic Operational Law Training (BOLT) course.  BOLT provides judge advocates one week of training in operational and international law.  Successful completion of OCS, TBS, the Basic Lawyer Course, and BOLT culminates in designation as a Marine judge advocate.

2.4  Continuing Legal Education (CLE) and Advanced Training

CLE and other training opportunities are plentiful for judge advocates throughout their careers.  In addition to a myriad of courses offered by each of the service judge advocate schools, HQMC provides funds for judge advocates to attend various civilian CLE courses.  The Marine Corps also sends up to fifteen judge advocates per year to school to obtain a Master of Laws (LL.M.) degree.  Students may receive their LL.M. from either the Army’s Judge Advocate General’s Legal Center and School or from civilian law schools.  In the last several years, Marine judge advocates have received advanced degrees from Georgetown University School of Law, George Washington University School of Law, the University of San Diego School of Law, and the Harvard University School of Law.  In addition to advanced legal courses, judge advocates also have the opportunity to attend advanced military studies courses every year, such as the Expeditionary Warfare School, the Command and Staff College, one of the four services War Colleges, or various military fellowships.

2.5  Law School Education Debt Subsidy (LSEDS)

LSEDS went into effect during 2003 and has been approved for its eighth year.  Judge advocates that have completed their initial active duty obligation are eligible to apply.  The total authorized amount of LSEDS is $30,000 per judge advocate, to be paid in yearly installments of $10,000.  Officers accepting LSEDS incur a three-year commitment.  The utilization of LSEDS assists the Marine Corps in retaining experienced judge advocates and reduces the number of yearly accessions and associated training costs. 

2.6  Forward Deployed Judge Advocates

The majority of the judge advocates that are forward deployed are serving in support of Overseas Contingency Operations.  Contingency operations have created a tremendous challenge for the Marine Corps legal community, with judge advocates currently serving in Afghanistan, Djibouti and Cuba.  In addition to the judge advocates that are permanently assigned to deploying Marine Corps forces, there is a significant requirement for individual augments (IA) to provide additional legal services to various units throughout the Department of Defense.  Marine Corps judge advocates currently serve as IA’s with the Combined Forces Command Afghanistan, Combined Joint Task Force-Horn of Africa, Joint Task Force Guantanamo Bay and Task Force 434.  While there has been no shortage of active duty volunteers, IA billets are also being filled with volunteers from the Marine Corps Reserve. 

2.7  Legal Administration Officers

Legal Administrative Officers (LOA), who come from the Warrant Officer ranks, are our primary law office managers and provide review and guidance in administrative investigations, preliminary inquiries, and claims against the government.  Legal Administrative Officers process most involuntary administrative separation cases, serve as recorders for administrative discharge boards, and serve as Foreign Claims Commissioners during deployments and exercises.

As law office managers/legal administrators, LOA’s prepare and monitor internal budgets, property acquisitions and fiscal related matters; supervise the procurement, maintenance, and deployment of all legal specific software and hardware requirements; monitor and update library resources; and work closely with the senior enlisted paralegals on assignments and training of enlisted Marines.

Legal Administrative Officers are active members of the Association of Legal Administrators (ALA) and the International Legal Technology Association (ILTA). 

2.8  Enlisted Training and Support

2.9  Reserve Judge Advocates

2.9.1Judge Advocates and Legal Services

There are currently a total of 385 judge advocates in the Marine Corps Reserve.  The Legal Services Support Section of the Marine Forces Reserve manages reserve legal services. 

Reserve judge advocates serve in diverse assignments such as: general/special courts-martial judges; regional defense counsel; appellate defense/government counsel; defense/government counsel at the Office of Military Commissions (OMC) and action officers in the various branches of the Department of Defense.  They also support the Office of Counsel for the Commandant of the Marine Corps in specialized practice areas including environmental law, land use, civilian personnel law, procurement and fiscal law, and government ethics.  Reserve judge advocates also instruct other judge advocates and commanders on international law and the law of war, and serve as instructors at the Naval Justice School (NJS) and the Defense Institute of International Legal Studies.

2.9.2Mobilization

The mobilized judge advocates serve in legal billets with various commands including U.S. Central Command, Marine Forces Pacific, Joint Task Force Horn of Africa, Assistant Secretary of the Navy, Headquarters, U.S. Marine Corps, the former Coalition Provisional Authority, and in other non-legal billets such as executive officer, plans officer, liaison officer, action officer, operations officer, watch officer, adjutant, engineer, and counter-intelligence officer.  Reserve members are typically mobilized for a six or twelve month period of active-duty service.

2.9.3Management

The demand for legal expertise in the Marine Corps has grown continually over the last decade, with current operations requiring significant support from the reserve judge advocate community.  More judge advocates are needed to fill critical billets, and specialty training is a greater priority.  The complexity of coordinating this diverse community resulted in the creation of a program to manage the entire reserve legal community.  The Legal Services Support Section (LSSS) of the Marine Forces Reserve, a force-level command, was created to bring all reserve judge advocates, legal administrative officers, and enlisted legal services specialists under one reserve organization.  The LSSS provides centrally managed administration, command, and control of reserve legal services, and is now co-located with the Judge Advocate Division at Headquarters Marine Corps.

2.9.4Training

During the last fiscal year, more than 24 law-related training courses were offered to reserve judge advocates.  These courses are in addition to a semi-annual Reserve Naval Lawyer Refresher Course held at NJS, Newport, Rhode Island.  Courses are also available each year at NJS to train new judge advocates.

3.0     Military Law Branch (JAM)

3.1     Mission

Judge Advocate Division’s Military Law Branch (JAM) provides legal advice on military justice topics to the Commandant of the Marine Corps, Headquarters Marine Corps staff, and all Marine Corps commands worldwide.  This includes a variety of tasks such as performing a legal review of all involuntary separation proceedings of officers; screening officer promotion boards; representing the Marine Corps legal community on joint service committees; conducting the legal review of officer promotion delays or withholds; reviewing and commenting on Board for Correction of Naval Record cases; reviewing and drafting legislation affecting the Marine Corps; and reviewing orders and regulations.  JAM also oversees the Victim Witness Assistance Program (VWAP) for the Staff Judge Advocate to the Commandant in his role as the responsible official for VWAP for the U.S. Marine Corps. 

3.2     Military Justice

Military Justice continues to be one of the busiest areas in the practice of military law for Marine judge advocates.  The following chart reflects military justice statistics for the Marine Corps for the last eight fiscal years:

Commanders are continuing to dispose of their disciplinary cases through forums other than general or special courts-martial to speed adjudication.

3.3     Joint Service Committee on Military Justice

The purpose of the Joint Service Committee (JSC) on Military Justice is to assist the President in fulfilling his responsibilities under the Uniform Code of Military Justice (UCMJ) and to satisfy the requirements of Executive Order 12473 by reviewing the Manual for Courts-Martial (MCM) annually.  As appropriate, the JSC proposes legislation amending the UCMJ to keep pace with changes in Federal and military criminal law.  The JAM Branch Head is the Marine Corps’ representative to the JSC’s Military Justice Voting Group.  The Chairmanship of the JSC rotates every two years; Chairmanship currently rests with the U.S. Navy.  The JAM Deputy Branch Head serves as the Marine Corps representative of the JSC Working Group.    

3.4   Victim Witness Assistance Program (VWAP)

In 2009 JAM renewed its commitment to providing a professional, accessible and visible framework for the delivery of services and support to victims and witnesses of crime.  In early June 2010, the SJA to CMC sponsored the first ever USMC VWAP Training Conference, hosted by JAM and attended by VWAP representatives from every Marine Base.  Additionally, JAM secured funding from the Department of Justice (DOJ) to provide training for Marine VWAP personnel around the Marine Corps.

3.5   Sexual Assault Policies

JAM continues to be actively involved in assisting Headquarters Marine Corps in developing policy and advising and training judge advocates with respect to the prevention and response to allegations of sexual assault.  The policy focuses primarily on providing a robust support system for victims of sexual assault in the DoD.  The JAM Deputy Branch Head serves as the designated judge advocate for the Marine Corps Sexual Assault Prevention and Response (SAPR) Office.  JAM has three upcoming mobile CLE trainings scheduled for prosecutors and investigators one each on the East Coast, West Coast and in the Pacific.  The CLEs will feature 2 nationally recognized civilian experts and instructors from JAM, Navy OJAG (Code 20), the Naval Justice School, and NCIS.  JAM also has other initiatives to improve our sexual assault litigation proficiency underway, including, co-sponsoring a course on alcohol facilitated sexual assault at the Naval Justice School in August 2010 and performing a case review of completed sexual assault cases to develop lessons learned and best practices with Navy OJAG (Code 20), among others.

3.6   Deployed Justice

Marine judge advocates are deployed in military justice billets throughout the world in support of combat and contingency operations.  These Marines are serving in a variety of billets including Staff Judge Advocates to the major Marine Corps commands, trial and defense counsel, and as military judges.  General and special courts-martial are routinely held in theatre, demonstrating that the UCMJ is sufficiently flexible to provide for justice in an expeditionary environment. 

3.7   Military Commissions

In 2009 and 2010, following the enactment of the Military Commissions Act of 2009, JAM provided military justice expertise to assist in the development of the Manual for Military Commissions with experts from the other Services.  The manual was signed by the Secretary of Defense on April 27, 2010.  In addition, Marine judge advocates and paralegals continue to support the Office of Military Commissions, and a representative of JAM has been nominated to act as a special staff attorney for Military Commissions. 

3.8   Trial Counsel Assistance Program and Share Point Website for Military Justice Practitioners

JAM also initiated a Marine Corps Trial Counsel Assistance Program (TCAP) headed by a field grade military justice expert and modeled after the Army JAG Corps TCAP.  This initiative contemplates future augmentation by 3 regional trial counsel field grade military justice litigation experts and a civilian sexual assault litigation expert.  The TCAP personnel at JAM develop and provide training, litigation resources and on-call advice and mentoring for prosecutors across the Marine Corps.  The regional trial counsel will provide local training, mentoring, advice and be available to try complex or serious, high profile cases upon demand.  Additionally, JAM launched a Share Point website in December 2009 to provide military justice supervisors and prosecutors with web access to TCAP pleadings, motions, legal advice, news and blog forum, along with numerous other standardized military justice forms and resources for staff judge advocates.  A snapshot of the website is provided here:

4.0     International and Operational Law Branch (JAO) 

4.1  Mission

The International and Operational Law Branch (JAO) provides advice to the Commandant of the Marine Corps in his capacity as both a Service Chief and as a member of the Joint Chiefs of Staff; to the Headquarters Marine Corps staff; and to Marine judge advocates worldwide.  JAO also provides service input to the Office of the Secretary of Defense and the Joint Staff and participates as a standing member of the Department of Defense Law of War Working Group.  JAO focuses on international and operational law matters such as the law of war, detention operations, rules of engagement, domestic operational law, law of the sea, non-lethal weapons, treaties, and international agreements.  JAO also coordinates worldwide law of war training conducted by the Law of War Detachment, which is staffed by reserve judge advocates. 

4.2  Judge Advocates and Operation Enduring Freedom

Judge advocates continue to serve at all operational levels in support of Operation Enduring Freedom.  From Force headquarters in Afghanistan, to infantry battalions conducting all phases of armed conflict, operational lawyers remain fully integrated in operational planning, providing advice to commanders, staff, Marines, and, in some cases, their host-nation counterparts.  The spectrum of legal advice Marine judge advocates must be prepared to address ranges from international and operational law and rules of engagement, to a myriad of other legal issues that arise in a deployed environment, such as legal assistance, military justice, and civil affairs and rule of law operations.

4.3  Law of War Training

The Marine Corps continues to emphasize law of war training.  Law of war training begins at boot camp and Officer Candidates School, and continues at follow-on schools, before each deployment, and in theater during operations.  In addition, leaders and commanders receive specialized training at law of war seminars, and all judge advocates receive additional Basic Operational Law Training (BOLT).  In addition to this training, deployed Marine judge advocates are required to participate in additional in-depth supplemental training, which focuses on specific issues encountered in the deployed environment.  It includes training in applicable international and operational law including the law of war, detainee treatment and rules of engagement, among other subjects. 

5.0     Research and Civil Law Branch (JAR)

5.1  Mission

The Research and Civil Law Branch (JAR) provides legal advice to the Headquarters Marine Corps staff and Marine Corps commands worldwide.  JAR’s major area of responsibility is all administrative and civil law issues, including military personnel law for the Marine Corps and Marine Corps Reserve as it pertains to accessions, promotions, separations, retirements, mobilization, education, training, and disciplinary and administrative actions; legislative and regulatory law relating to reviewing and drafting legislation and regulations affecting the Marine Corps; and the release and production of Government documents in response to Freedom of Information Act and Privacy Act requests.  The branch also administers the Marine Corps Government Ethics program on behalf of the Staff Judge Advocate as Deputy Designated Agency Ethics Official and as Rules Counsel under the Department of the Navy’s Professional Rules of Responsibility for Marine Corps judge advocates.  The branch works very closely with its counterparts in the Navy Judge Advocate General’s Administrative Law Division and coordinates Marine Corps support for civil litigation and claims with the Office of the Judge Advocate General’s Claims, Investigations, and Tort Litigation Division, and with the General Litigation Division and U.S. Department of Justice.

6.0     Legal Assistance Policy Branch (JAL)

6.1  Mission

The mission of JAL is to implement and supervise the Marine Corps Legal Assistance Program, to provide Corps-wide guidance to legal assistance attorneys and staff, to disseminate legal assistance policies and procedures, to foster communications and inspect the effectiveness of legal assistance programs, and to assist and advise the SJA to CMC on all legal assistance policies, procedures and related matters.  Additionally, JAL is responsible for oversight of all Marine Corps legal assistance offices.  Marine Corps legal assistance offices provide legal assistance services and advice to active duty service members, military retirees, qualified civilian employees overseas, and their families in such areas as family law, estate planning (wills, powers of attorney, advanced health care directives, etc.), consumer law, Service Member Civil Relief Act (SCRA) issues, and assistance with pre-deployment legal issues, as well as training to both servicemembers and civilians through command briefs, instruction at formal schools,  and state law specific regional symposiums.

6.2  Wounded Warrior Attorney Program (WWAP)

The National Defense Authorization Acts of 2008 and 2009 mandated government legal counsel be available to Wounded, Ill, or Injured (WII) servicemembers undergoing evaluations at medical boards.  In response to this mandate, the Marine Corps mobilized four reserve judge advocate billets to provide these services.  To meet a growing need for judge advocate assistance in the Disability Evaluation System (DES), JAD is working with Wounded Warrior Regiment (WWR) to obtain authorization for permanent civilian attorney structure to provide these valuable services.  Additionally, JAD also requested active duty permanent structure billets through the Capability Assessment Review.  If both initiatives are approved, the Marine Corps will have strategically placed DES attorneys, providing assistance for the approximately 2400 Marines processed through the DES each year.

6.3  2010 Tax Preparation and Filing

In 2010, the Marine Corps legal assistance program estimated that it prepared and filed more than 73,600 Federal and state tax returns for the clients of the Volunteer Income Tax Assistance (VITA) program.  The tax program saved Marines and their family members approximately $7.4 million in tax preparation and filing fees and operated twenty (20) tax centers world-wide. 

6.4  Immigration

All legal assistance offices world-wide provide assistance to servicemembers with the preparation and filing of the United States Citizenship and Immigration Services’ Application for Naturalization, form N-400.  Additionally, the two regional offices located at Camp Pendleton, California, and Camp Lejeune, North Carolina, provide full service family and dependent immigration support as well as assistance with VISA issues. 

6.5  Exceptional Family Member Program (EFMP) Attorneys

The Marine Corps employs two Exceptional Family Member (EFMP) attorneys at the regional legal assistance offices to assist servicemembers and their families with EFMP issues.  The EFMP is a Marine Corps program supporting active duty servicemembers with a family member with special medical or educational needs.  The EFMP attorneys provide legal advice on state and federal education law, including the Individuals with Disabilities Education Act (IDEA), and related disability laws and regulations benefiting individuals with special needs.  The attorneys are also able to assist by advocating and litigating procedural and substantive education and related disability law issues before non-DOD schools, administrative forums, including due process hearings, and, if necessary, state and federal courts.

6.6  Outside Resources

JAL continues to coordinate with many outside agencies, including the Department of Justice Civil Rights Division on SCRA enforcement issues, the ABA Military Pro-Bono Project, and ABA’s Standing Committee on Legal Assistance for Military Personnel (LAMP).

7.0     Information, Plans and Programs Branch (JAI)

7.1     Mission

The Information, Plans and Program (JAI) Branch provides the knowledge resources Marine Corps judge advocates need to accomplish their mission.  JAI provides the best and most current Information Technology (IT) available to train and equip the Marine Corps legal community. 

7.2     Responsibilities

JAI’s major areas of responsibility include the overall management and definition of all major IT activities and the day-to-day IT operations of JAD.  JAI maintains the IT infrastructure including information assurance, security, Local Area Networks (LANs) and Internet operations with the assistance of NMCI, C4 and ARI.  Additionally, JAI oversees the analysis, design, implementation, and life- cycle management of military law practice specific software applications.  JAI maintains the SJA to CMC Website, liaisons with vendors for IT procurement purposes, monitors contractor performance and ensures products and services meet requirements.  

7.3     The Judge Advocate Division Website

The JAD SharePoint site contains a collection of Judge Advocate experiences, ideas, data, and processes blended into accessible and usable information via the web.  Each branch within JAD has a web page that contains brief and template banks, easily accessed indexes to attorney information, executive and administrative interpretations, and other relevant sources of information.  The JAD web site is accessed from http://www.marines.mil/unit/judgeadvocate/Pages/home/SJA_to_the_CMC.aspx

7.4     Case Management System (CMS)

The Case Management System (CMS) maintained by JAI is an on-line system that enables the accurate tracking and reporting of Marine criminal cases at every stage in the pre-trial and post-trial process. The CMS allows staff judge advocates and officers-in-charge of law centers to view cases from start to finish and run searches of relevant data elements as needed.  In addition, the CMS gives the SJA to the CMC the much needed ability to supervise the handling of military justice cases at every stage to ensure these cases are handled in an appropriate and timely manner.   

7.5     Navy Marine Corps Intranet (NMCI) Network

JAI coordinates NMCI issues relating to hardware and software, mapping users to NMCI printers and shared drives.  JAI assigns user assets in NMCI databases, submits Move, Add, Change (MAC) requests for HQMC inbound and outbound Marines.  JAI submits DADMS questionnaires to the Department of Navy Functional Area Manager (FAM) with the Office of General Counsel for approval to install software on the NMCI network, IT Procurement Waivers for hardware and software purchase approvals, and Application Security Plans (ASP) for approval to operate and connect (ATO/ATC) to NMCI and MCEN  networks.

Independence Day is a special day for every American.  This year it will be even more special for Scott because he enters the Army JAG Corps on July 4th and takes his commissioning oath! 

The following are some thoughts he shared with us about why he decided to take the oath and serve our Nation:

     "It will be a different sort of Independence Day this year for me and the other members of the 182nd Judge Advocate Officer Basic Course.  On July 4, 2010, we will report to Fort Lee, Virginia to accept our commissions in the U.S. Army.  Over the course of almost five months of training -- at Fort Lee; the JAG School in Charlottesville, Virginia; and Fort Benning, Georgia -- we will learn how to be lawyers and soldiers.  I can’t wait." 

     "Many people in my life ask me about my decision to join the Army JAG Corps.  I do not come from a military background.  I have also spent almost my entire life about as far on the civilian side of the civilian-military cultural divide as one can get.  So I understand when the question comes flavored with a hint of surprise: “Wait, why are you doing that?”  I try to answer in two ways."

     "First, I want to serve.  It is something I have always wanted to do.  It sometimes sounds almost too cheesy to say, but there is no better way to say it.  I have received much from my country, and I owe much in return.  My ancestors fled oppression and religious intolerance abroad to find a better life in the United States.  They found it, and a few generations later I enjoy freedoms and privileges that they probably could not have imagined.  So I feel a duty to serve, mine as much as anyone’s, to do my part in defending this country."

     "Second, I want to learn.  Before applying for a commission, I interned at Fort Campbell to see what being a Judge Advocate was all about.  I was sold from the start.  No law firm in the world gives so much substantive responsibility to its new attorneys.  No other lawyers are as motivated, excited, and devoted to their work as are Judge Advocates.  A Judge Advocate approaches his or her work with a sense of purpose, a love of the law, and a devotion to fitness -- both physical and mental -- that makes the job more than work; the job is a mission.  I want to practice law like that."

     "So, I am buying uniforms and breaking in my new boots.  I am getting in shape and seeking advice from friends who have been through this transition before.  And the long haircut I have enjoyed since high school is about to go.  I am thrilled to begin training and honored by the opportunity to serve.  I know there will be significant challenges and adjustments, but I have the support of everyone I know and love.  I’m ready."

Good luck Scott!

The Judge Advocates Association opposes this legislation. The U.S. Department of Justice has initiated and is continuing to conduct an investigation into matters which are the subject of this proposed legislation. The Department of Justice is the agency with primary jurisdiction in these matters. The Judge Advocates Association believes it unwise to require another agency to conduct an investigation while the Department of Justice has an open criminal investigation.

Any concerns about ethical conduct of judge advocates are properly the responsibility of the appropriate military service Judge Advocate General or the Staff Judge Advocate to the Commandant of the Marine Corps.

LT Christopher P. Toscano, United States Navy

Capt Naomi N. Porterfield, United States Air Force

Capt Korvin S. Kraics, United States Marine Corps

LT CDR Marc A. Zlomek, United States Coast Goard

The awards will be presented at the ABA annual meeting in San Franciso the week of August 5, 2010.

Scott is a graduate of Harvard College and Vanderbilt University Law School, where he was Editor in Chief of the Vanderbilt Law Review.  He currently clerks for Chief Judge Andrew Effron at the U.S. Court of Appeals for the Armed Forces.  Scott lives in Baltimore, Maryland, with his wife who is a doctor at Johns Hopkins Hospital.  After training, Scott willl be assigned to Fort Detrick in Maryland.

We hope you will join us in following Scott along his journey!

PROFESSOR THOMAS W. TAYLOR†

∗ This is an edited transcript of a lecture delivered by Professor Thomas W. Taylor to members of the staff and faculty, their distinguished guests, and officers attending the 58th Judge Advocate Officer Graduate Course at The Judge Advocate General’s School, Charlottesville, Virginia, on 12 May 2010. The Clausen Lecture is named in honor of Major General Hugh J. Clausen, who served as The Judge Advocate General, U.S. Army, from 1981 to 1985 and spent over thirty years in the U.S. Army before retiring in 1985. His distinguished military career included assignments as the Executive Officer of The Judge Advocate General; Staff Judge Advocate, III Corps and Fort Hood, Texas; Commander, U.S. Army Legal Services Agency and Chief Judge, U.S. Army Court of Military Review; The Assistant Judge Advocate General; and, finally, The Judge Advocate General (TJAG). On his retirement from active duty, General Clausen served for a number of years as the Vice President for Administration and Secretary to the Board of Visitors at Clemson University.

† Professor Taylor assumed his current position, teaching graduate students at Duke University’s Sanford School of Public Policy, upon retiring in June 2006 as the senior career civilian attorney in the Department of the Army. He served as the senior leader of the Army legal community during extended transition periods between successive political appointees. Professor Taylor provided legal and policy advice to seven Secretaries and seven Chiefs of Staff of the Army. During his twenty-seven years in the Pentagon, Professor Taylor addressed a wide variety of operational, personnel, and intelligence issues, including military support to civil authorities following the attacks on

11 September 2001, and during disaster relief operations.

Professor Taylor received a B.A. in history with high honors from Guilford College, Greensboro, North Carolina, in 1966, and a J.D. with honors in 1969 from the University of North Carolina at Chapel Hill, where he was a Morehead Fellow and a member of the North Carolina Law Review and the Order of the Coif. He was the Distinguished Graduate (first in class) of the Graduate Legal Course, The Judge Advocate General’s School, in 1979, and graduated from the Industrial College of the Armed Forces in 1987. Professor Taylor began his legal career as an Army Judge Advocate General’s Corps (JAG Corps) officer, trying criminal cases in Alaska and Germany, before serving as an Associate Professor in the Law Department of the U.S. Military Academy at West Point,where he was promoted to Major. His first Pentagon assignment was in The Judge Advocate General’s Administrative Law Division before he joined the Office of the General Counsel, where he was promoted to lieutenant colonel before leaving active duty in 1982 to accept a civilian position in that office. He served in successive positions of greater responsibility following his appointment in the Senior Executive Service in 1987.

Meanwhile, as a Reserve colonel during annual training, he served as the Academic Department Director of The Judge Advocate General’s Legal Center and School until he retired from the U.S. Army Reserve. He has lectured at law schools and professional conferences throughout his career and published law review notes and articles.

Professor Taylor served as the senior legal official of the Army during various transition periods since the Reagan Administration, including a one-year period during the Bush and Clinton Administrations.

I. Introduction

At the outset, it is an honor and privilege to be here this morning in

Charlottesville. This event commemorates the career and contributions

of Major General Hugh J. Clausen, The Judge Advocate General of the

Army from 1981 to 1985. The first lecture in this series was given to the

43d Judge Advocate Officer Graduate Course and the 136th Judge

Advocate Officer Basic Course on 22 February 1995, for the dedication

of the Hugh J. Clausen Academic Chair of Leadership. Since that time,

speakers invited to give this lecture have come from various backgrounds

and positions, but all of us share a common respect and admiration for

General Clausen and his enormous and lasting contributions to the Army

legal community. I am grateful to your commander, Brigadier General Miller, and to

your Dean, Colonel Burrell, for their invitation to speak today, and

especially grateful to the Deputy Judge Advocate General, Major

General Tate, for suggesting today’s topic of providing leadership and

advice in high profile cases. General Tate recommended that I provide

you some practical advice based on my years in the Pentagon handling

high profile cases, rather than a more theoretical lecture about leadership.

I am honored that Lieutenant General Chipman, The Judge Advocate

General of the Army, drove down from Washington to be with us today.

I would like to provide special recognition and thanks to Major General

(retired) Altenburg for his presence this morning; John and I were

classmates in the 27th Graduate Course, where we formed a life-long

personal and professional friendship. He was my battle buddy in the

Pentagon during his years serving in the position now known as the

Deputy Judge Advocate General. I would also like to thank my long

time friends and colleagues, John Sanderson and David Graham, for their

intellectual and leadership contributions to the Army and The Judge

Advocate General’s Legal Center and School over many years. I am

honored to have two special outside guests: Colonel (retired) Tom

Strasburg, a former Commander of this School at critical times, and

Colonel (retired) Greg Block, a former Dean here at the School.

My introduction to the Army and the JAG Corps occurred here in

Charlottesville many years ago at the old JAG School, located on the

historic part of Mr. Jefferson’s grounds, where I completed the basic

course. Those were exciting times, as the Army rushed us into

courtrooms around the world to implement changes to the Manual for

Courts-Martial that mandated more attorneys in the legal system,

including the then-revolutionary concept of requiring that the accused

have a lawyer at every special court-martial. Of course, I have returned

many times since then at various stages of my military and civilian

career, including a year at the Graduate Course and several active duty

training tours as the Individual Mobilization Augmentee (in reality, the

Reserve backup) for the Dean. However, I never tire of this place and

always look forward to coming here to talk with other lawyers, greet old

friends, and make new ones.  As I indicated, I want to share with you some

lessons learned from my twenty-seven years of Pentagon experience providing

advice to our most senior Army and Department of Defense (DoD) leaders on

managing high profile cases. However, my first experience with high

profile events came while teaching at West Point in 1976, when the U.S.

Military Academy both admitted the first women cadets and endured the

largest cheating scandal in Academy history, neither of which was

related to the other. Since leaving the Pentagon four years ago, I have

continued to provide advice as a consultant to the Army General Counsel

on management, intelligence, and personnel issues, as well as legislative

and public affairs. Given the size and composition of our force, as well

as the missions that our Soldiers perform, the Army will likely continue

to have a significant number of these cases.

The reality is that, by the time a case becomes of concern to our

senior leaders in the Pentagon, it is already a high profile case in some

respects. Otherwise, we wouldn’t be talking about it. On the other hand,

as I always cautioned my clients, not all cases that come to the

Pentagon’s attention deserve—or even require—the help of higher

headquarters to manage them properly. I have reminded my bosses in

every Administration that lawyers could help them address their

concerns, that there must be no hint of command influence, and that

sometimes their best course of action is patience—a virtue in short

supply in Washington—allowing normal rules and procedures that we all

understand to control the process and work toward an outcome. It is a

fact of life that our senior leaders generally want to be personally and

professionally involved in handling high profile cases, and your job as

lawyers is to provide them comprehensive advice and often to serve as a

buffer for the system to work as designed. For example, you may recall

that the Secretary of the Army and the Chief of Staff travelled to Fort

Hood to demonstrate their concern for the Soldiers, civilians, and

families, and held a press conference on 6 November 2010, just one day

after the tragic shootings.1 However, they carefully refrained from

speculating about the details.2

II. First Things First: Identifying a High Profile Case

You are probably already asking yourself a key question at this

point: How do you identify a high profile case—one of those special

cases that will dominate newspaper, television, and radio coverage; light

up the blogosphere; and provoke extensive public interest? Some facts

and circumstances are so compelling that you will know immediately

that the case will achieve a high profile status. A recent example is the

Fort Hood shootings that I just mentioned. Just look at a few of the

many elements of the case: the cruel irony of the deaths of soldiers and

civilians going through a processing station on a stateside military

installation; the heroism of the first responders; the professional

background and alleged ideology of the accused; the questions about

intelligence failures at various levels; and the promotion and assignment

policies governing a highly-stressed force.

Another example is the alleged Christmas Day bomber last

December, who attempted to ignite explosives during a flight bound for

Detroit. This case contained some of the same elements that marked the

Fort Hood case: the heroism of the passengers on board; the background

and ideology of the accused; the question of intelligence failures at

various levels; and the oversight of air transportation safety. And,

finally, just eleven days ago, another botched terrorist bombing occurred

in Times Square, with many of the same factors: alert street vendors and

professional first-responders and police work; the background and

ideology of the accused; the oversight of air transportation safety and

coordination of threat information; and, eventually, the question of

whether there were intelligence failures, now that government officials

suspect that the Pakistani Taliban appear to have had a role in the

planning and execution of the failed attempt.3

A. Look Under the Radar

It is far more difficult to identify the other category of high profile

cases, those that begin with a somewhat random news story, grow under

the radar for awhile, and emerge full-blown as high profile cases. The

challenge for us as lawyers is to spot just that kind of case, one that first

appears routine but—as the media would say—has “legs” and continues

to play out day after day. Although I’ll say more later about dealing with

the media in high profile cases, my point is that some high profile cases

don’t start that way, but surface routinely in the clutter of other news and

information. For example, the Abu Gharib cases were first reported on

16 January 2004, through a U.S. Central Command press release: “An

investigation has been initiated into reported incidents of detainee abuse

at a Coalition Forces detention facility. The release of specific

information concerning the incidents could hinder the investigation,

which is in its early stages. The investigation will be conducted in a

thorough and professional manner.” Although The New York Times and

Philadelphia Inquirer reported this news contemporaneously, there was

certainly no particular media interest or splash. Meanwhile,

investigations continued throughout the spring by the Criminal

Investigation Division, General Taguba, and the Army Inspector

General. However, the story largely disappeared from the public eye

until the CBS news program, 60 Minutes II, “broke” the story in a

television broadcast, complete with lurid pictures, on 28 April 2004.

Once again proving the old adage that a picture is worth a thousand

words, the story and its images haunted the Bush Administration and

DoD for months and became part of the continuing national conversation

about the conduct of the war and the treatment of detainees.

But this is not just a military phenomenon. Recall the example from

the civilian world just three years ago, when Don Imus made a racially

and sexually derogatory comment about the Rutgers University women’s

basketball team that lost the NCAA championship game. The comment

might have gone unnoticed, but for a media watchdog organization that

posted the video on YouTube. The video prompted protests by some

African-American leaders, but it took another week before the

mainstream media brought the matter to the attention of the wider public

audience. Although Don Imus lost his nationally-syndicated radio show

as a result of the kerfuffle, the subsequent discussion about the roles of

race, hip-hop culture, and the media created a firestorm of controversy.6

Similarly, several years earlier, Senator Trent Lott made a comment

about Senator Strom Thurmond at a party celebrating Thurmond’s 100th

birthday. Referring to Thurmond’s presidential bid in 1948, Lott said: “I

want to say this about my state: When Strom Thurmond ran for

president, we voted for him. We’re proud of it. And if the rest of the

country had followed our lead, we wouldn’t have had all these problems

over all these years, either.”7 Of course, the problem was that Thurmond

had run as a Dixiecrat on a segregationist platform that would have

continued denying fundamental rights to people of color. Although the

mainstream media initially ignored or downplayed Lott’s comments, the

story thrived in the blogosphere and made its way back into a high

profile case that cost Senator Lott his leadership role in the Senate.8

Thus, the challenge is not only to recognize the high profile case as early

as possible when it occurs, but also to spot the case that at first appears

routine, but rapidly develops into a high profile case.

As I tell my graduate students at Duke, in our information age and

twenty-four-hour news cycle, supplemented by blogs, tweets, and

various social media, you can never assume that a bad-news story will

stay under the radar. Rather, you must assume just the opposite: That

someone, somewhere, sometime, will have a cell-phone camera photo, email,

text message, or some other record of practically every

questionable event that occurs, just waiting for the right moment to burst

on to the public stage and play itself out in the media. For example,

recall how the “macaca moment” hurt the senatorial campaign of Senator

George Allen of Virginia in 2006.9 I’ll say more about how to avoid that

mistake later in my remarks.

B. Typical Fact Patterns for High Profile Cases

For now, I would urge you, as you go about your daily work, to

remain alert for the facts and circumstances that will propel a local issue

into the national media. As you might have already concluded, as a very

practical matter, almost every case you handle as lawyers could have the

potential for turning into a high profile case if enough public interest

develops. However, we have learned from experience that certain types

of cases always have potential for that level of scrutiny that I have

described. Here are some of the types of cases with potential to achieve

a high-profile status.

First, suicides and friendly fire incidents are prime examples of

potential high profile cases. Families are usually reluctant to accept the

finding that death resulted from either. It is commonplace for families to

suspect foul play, a conspiracy, or a cover-up. Their feelings are

understandable, so we must go the extra mile to leave no stone unturned

in finding the truth. A recent example is the Tillman friendly fire

investigation, now the subject of Jon Krakauer’s latest book, Where Men

Win Glory: The Odyssey of Pat Tillman, which dissects and criticizes

decisions made at all levels.10 Unfortunately, almost all of you in this

room has probably been, or will be, involved in one of these tragic cases

during the course of your professional careers. Second, crimes which involve the

abuse of a special relationship are always disconcerting. These crimes might involve

misconduct by chaplains, doctors, recruiters, cadre, teachers, or guards—anyone with a

special obligation to provide services in a protected setting where there is

an unequal status. Because these crimes involve an abuse of a trusted

relationship, often in addition to some other underlying crime (such as

sexual assault), we can predict an outpouring of media and congressional

interest. The recurring stories of detainee abuse are prime examples, but

stories persist about abuse of our own military personnel in training and

recruiting environments, as well. A third example includes crimes that involve racist,

extremist, and similar motives, often referred to generically as “hate crimes.” Because

these motives are contrary to the core values of our country and our

military, when they surface as part of a crime, everyone pays attention.

You may recall allegations of these types of crimes at Fort Bragg and

Fort Campbell several years ago. Moreover, whenever skinhead, neo-

Nazi, or militia groups make the news, investigative reporters always

focus on any group members who might have served in the military or

received military-type training in some other setting, such as law

enforcement courses.  A fourth example consists of crimes or other types of misconduct

that involve high-ranking officials, officers, non-commissioned officers

(NCOs), and civilians. During 2005 alone, the Pentagon had cases

involving improper sexual relationships that embarrassed a former Air

Force TJAG and an Army four-star commanding general.12 Of course,

each year brings a new rogues’ gallery of government officials:

governors like Mark Sanford of South Carolina, who gave us a whole

new connotation to “walking the Appalachian Trail,” and former senators

like John Edwards of North Carolina, whose personal lives become

fodder for Oprah and GQ. Again, these leaders occupied positions of

special trust, and the public rightfully expects them to follow the highest

standards of conduct in their personal and professional lives.

Finally—and this by no means exhausts the list—there are cases that

become high profile because of the way that we may have handled or

mishandled an otherwise-routine case that catches the public’s attention

and sympathy. Some typical examples that perennially lurk just under

the radar include the following: holiday displays and public prayers in

military settings, which raise freedom of religion issues; compelling

Soldier stories about child custody issues during deployments and

services for wounded warriors at home; claims of discrimination based

on the usual suspect categories of race, gender, religion, and so forth;

and, of course, investigations leading to discharges based on

controversial personnel policies, such as “Don’t Ask, Don’t Tell.”

III. Two Questions

My first and most important tip in handling high profile cases is to

ask yourself and your client two questions: First, what would we

normally do in a situation like this? And, second, why would we do

anything different in this case? I have found that these two questions put

most cases in perspective and are the best possible protection against

claims arising later that someone got special treatment. In other words,

begin with the presumption that the normal rules will prevail.

Those claims of special treatment usually arise in one of two ways.

Either someone got especially good treatment, and thus got away with

something for which they should have been held accountable; or

someone got especially bad treatment, and thus was unfairly investigated

and punished by the system. You can probably think of instances where

that claim was made in the last several years in both military and civilian

contexts at home and abroad. For example, I can recall a number of

Army cases in which someone claimed that a family or staff member of

the commanding general was stopped on post by the military police, but

not charged, or otherwise treated, as any other person would have been.

This happens in the civilian community, as well. Just last month, a North

Carolina highway patrol captain was stopped while driving extremely

drunk early in the morning. After his supervisor arrived at the scene, the

two officers had the captain’s Mustang towed, drove him to a local hotel,

and filed no report. The captain and the two officers were fired

following an investigation. Another variation on this theme is that lower ranking

Soldiers or officials were held accountable, in a way that senior officers and officials

were not. The public watches for examples of favored treatment,

application of the so-called double standard, and scapegoating in either

the investigation or disposition of allegations. The number of cases

where this claim arises is too numerous to mention, but I’ll point to Abu

Gharib in the military world and the Scooter Libby case in the civilian

world. But I’ll say more about accountability later in my remarks.

For now, the thing to remember is that someone is always watching

to see whether we will do the right thing. A quick story to illustrate this

point: One of my best friends and former Pentagon clients, Mike

Ackerman, was a three-star general and Inspector General of the Army a

few years back. He was flying back from Korea to Washington, coach

class, which is a government requirement, and had a seat in the middle of

the plane, even though he had recently undergone back surgery and could

clearly have justified a better seat if he had been willing to ask for a

doctor’s approval. Several hours later, as Mike hobbled to the restroom,

a sergeant who had served under Mike years earlier, said, “Hey, Sir.

You won me a case of beer.” When Mike asked how that could be the

case, the story unfolded of a bet between the sergeant and his seatmate,

also a non-commissioned officer. After the plane was loaded and ready for takeoff,

the sergeants (also in coach but several rows back from Mike) observed a flight attendant

offer Mike an upgrade to business class because he was a three star

general and the flight was long. The sergeant who did not know Mike

had bet his seatmate a case of beer that he would take the upgrade. The

sergeant who had served under Mike knew about his character and bet

that Mike would not accept the upgrade. In addition to being a great

illustration of the idea is that someone is always watching, this is also a

great story about leadership and integrity: Doing the right thing when no

one is watching, because—you know what—someone is always

watching.

A. The Rule of Law

Following the normal rules also means that we maintain both the

appearance and the reality of the most important and critical aspect of the

criminal and administrative process: the rule of law. The public expects

its officials to adhere to the laws, rules, and regulations that govern the

normal disposition of allegations. After all, as Americans, we have

professed our belief in the rule of law and equal justice under law. And,

as Soldiers and lawyers, you have dedicated your professional lives to

making that vision a reality.

Why am I placing so much emphasis on the importance of following

the rules? In every case in which you deviate from your normal rules,

you will probably be called upon to explain why you did not follow your

normal rules and to justify why you made an exception. Your best

defense almost all the time is that you handled the high profile case just

like any other case. Hence, my advice is to follow the rules that

normally apply and to consider carefully the rationales for any

exceptions. Moreover, any exceptions may also set precedents that could

prove troubling in future cases.

B. Questioning Authority

I do not mean to imply, however, that lawyers should blindly accept

standard solutions or conventional wisdom without questioning whether

the laws, regulations, and policies that might govern the disposition of

allegations make sense as they apply to a particular case. Rather,

lawyers should be the ones asking the hard and critical questions to

ensure that the processes are transparent and the outcomes, just. Among

the reasons this Nation came into existence was the suspicion that

Americans have harbored toward the exercise of authority. You may

recall from our history that King George III’s abuse of judicial and police

powers contributed to the American Revolution. Our Founding Fathers

were so suspicious of the potential authority of a centralized government

that many states would not ratify the Constitution until there was

agreement that the Bill of Rights would be added, guaranteeing rules that

some of you have provided advice on every day, such as the Fourth

Amendment protections against unreasonable searches and seizures and

the Fifth Amendment protections against self-incrimination. My point is

that you have a responsibility as lawyers to question authority, especially

when the questions may not be welcomed. After all, even Thomas

Jefferson, when he was President, blamed his problems with the

Congress on “one hundred and fifty lawyers, whose trade it is, to

question everything, yield nothing, and talk by the hour.” Thus,

lawyers have a proud heritage of asking bothersome questions.

In fact, military lawyers arguably have a greater obligation than most

Soldiers and civilians to raise questions about authority because of the

hierarchical rank structure of a military organization that does not always

appreciate or encourage questions, the special staff relationship that

military lawyers have with their commanders, and our responsibility as

licensed attorneys to uphold the rule of law. It is clear that the current

leadership of DoD wants you to ask questions. Just last month, in a

speech at the U.S. Naval Academy, Secretary of Defense Gates

encouraged the midshipmen to challenge conventional wisdom and

institutional tradition. Secretary Gates pointed to examples of junior

officers who had the nerve and courage to push for the development of

amphibious landing craft, aircraft carriers, and nuclear submarines in the

face of opposition or indifference from their more senior leaders.15

C. Liberty v. Security

We also must recall that one of the basic tensions in our society is

that Americans are conflicted about the extent to which we want our

government to solve our problems. On the one hand, we want our civil

liberties and our privacy protected by and from the government; on the

other, we want government to provide us security, law and order.

Indeed, a debate has raged since 9/11 about where to strike this balance

between liberty and security. The frontline issues for the debate have

included the vexing question of what to do with detainees, including

whether a special terrorist court should be formed to authorize preventive

detention without trial for those too dangerous to release; what level of

interrogation can be justified to avert the “ticking time bomb” scenario;

and how much surveillance of our e-mails and library records we are

willing to accept to have a greater sense of security.

Just look at the reaction to the attempted attack on Northwest Flight

253 outside Detroit on Christmas Day. Five days later, former Vice-

President Cheney claimed that America is less safe because President

Obama was “trying to pretend we are not at war.”16 Others criticized law

enforcement authorities for advising the accused of his rights and

processing his case through the Federal system instead of turning him

over to a special interrogation team and using a military commission to

try him. The Obama Administration was forced to defend itself on all

these counts in the weeks that followed. And similar grumbling about

treatment of the alleged Times Square bomber is already on the airwaves.

Thus, the public policy discussion about where to draw the line

between civil liberties and security is alive and well. A current example

of the debate has centered on the recent Arizona law requiring law

enforcement officers to check immigration documents based on a

reasonable suspicion. While some argue that, given the failure of the

Federal Government to address the problem of illegal immigration, the

Arizona law is the best policy solution, others contend that this law

attempts to usurp Federal authority and legitimize racial profiling. As

you know, a number of lawsuits have already been filed, and the

Administration seems to find itself on the hook to do something, even

though the law has not yet taken effect.

The fact is that our society is interested in what our justice system

does and how we lawyers manage the system. Our civilian and military

justice systems are not “bottom-line” organizations where the only thing

that counts is the results. We are given a special trust when we become

officers of the court as licensed attorneys, in addition to the special trust

and responsibility as military officers. In exchange, we have a special

obligation to support the rule of law. Hence, my bottom line up front consists

of the two questions that will generally lead you to follow your own rules and

depart from them rarely, if ever, with full knowledge that you will have to account to

someone, somewhere, for why you did not follow your own rules. The

central theme becomes adherence to the rule of law, which requires

lawyers and our clients to make independent and impartial judgments to

maintain the credibility of our system of justice.

IV. Who Else Needs to Know?

My second tip for handling high profile cases is to ask yourself this

question: “Who else needs to know?” We must pay attention to the old

adage that bad news never improves with age. Of course you should

ensure that your supervisors, your own command public affairs office,

your own technical legal channels, and your higher headquarters are

tightly in the loop. They will be able to coordinate notifications to the

Pentagon’s oversight community, as well as the oversight committees of

Congress. I mentioned some examples of these types of cases earlier—

those involving suicides, friendly fire, abuses of trusted relationships,

hate crimes, and high-level officials. While laws and policy directives

may require some of these reports, I recommend that you always err on

the side of reporting in close cases. You may be surprised how much

help you can receive from other investigative organizations, like the

Federal Bureau of Investigation (FBI) and your DoD counterparts.

A. Report Early and Often

Why is it so important to keep your higher headquarters up to speed

on bad news? Reporting unfolding crises gives them the heads-up they

need in our information age. Your bosses will be receiving calls from

the senior Pentagon leadership, the Hill, and the media asking what is

going on. They need the information to help ensure that others will have

confidence in your investigation and disposition of the allegations. As a

by-product of our information age, the days are long past when leaders

can delay breaking the bad news to the boss until they have “all the

facts” or a “solution.” Additionally, your credibility increases when you

achieve a reputation for reporting the bad news, as well as the good.

Moreover, your higher headquarters can leverage support from their

oversight bodies, and get their buy-in on your strategies to some extent.

I have seen some controversies fizzle, instead of blossom, when you can

show that you made a timely notification of a problem that appeared

routine to all at the time, but turned out to be high profile. When one of

those “sleeping giant” cases suddenly achieves a high profile, everyone

starts asking the proverbial question, “What did you know, and when did

you know it?” That was the very type of question that made the Pat

Tillman and Jessica Lynch cases so explosive. Wholly aside from any actual

requirements to report incidents to higher headquarters, it just makes good sense for you to be the first one to deliver the bad news. It gives you the opportunity to identify the

potential crimes, frame the issues, lay out your investigative plan, and

establish timelines for, and obstacles to, completing the investigation.

Your oversight bodies will be more inclined to let your investigation

proceed without their interference if they see that you have a plan in

which they have confidence. For at least the past thirty years, the Army has

generally been diligent in disclosing unfavorable stories to senior DoD officials, the

DoD Inspector General, and oversight committees on the Hill. No matter

how unfortunate or ill-advised the incident may be that is the subject of

the report, at least the Army could take some credit for being forthright,

rather than facing accusations of a lack of candor, or worse yet, a coverup.

High-profile crises are particularly susceptible to the charge of

cover-ups, because many details may not be immediately apparent or

releasable to the general public and may, in fact, be privileged or

classified.

B. Learn from the Experience of Others

There is a second compelling reason to ask who else needs to know:

You can tap into the expertise and experience of others. Experts from

outside of your command can help you begin to size the situation and

provide you additional resources or a school solution. The idea is to tap

into their experience, as well as expertise. Rarely are there situations that

someone has not seen before, although when they happen, they challenge

all of us. I suppose that the attacks on 9/11, the devastation of Hurricane

Katrina, and the massive oil spill in the Gulf last month would be in that

category. As someone once said, experience is what you find—when

you are looking for something else.

The perhaps apocryphal story attributed to Sam Walton—the

extremely rich founder of WalMart—describes a conversation at Harvard

Business School between a student and Mr. Walton during a questionand-

answer session, as follows:

Student: What’s your secret? How did you become the richest man

in America?

Walton: It’s easy. Good decisions.

Student: But how? How do you know the good decisions?

Walton: That’s easy too. Experience.

Student: Well, then, how do you get that kind of experience?

Walton: That’s the easiest part of all. Bad decisions.18

The point is to learn from the mistakes that others have made, as well

as our own. In other words, you need not bruise your own leg on every

rock to learn that rocks are hard. Is there anyone among us, who has not

silently thought, when we hear of someone else’s mistake, “There, but

for the grace of God, go I.” In fact, the worst thing you can do is try to

handle the many aspects of a high profile case by yourself. The tragic

story of Karl Wallenda is an example of a leader’s taking on too much

responsibility and not trusting others to help. He led a famous circus

family called the “Flying Wallendas,” which thrilled audiences by their

bold acrobatics and balancing acts on wires high above the center ring.

He eventually would not let anyone else perform all the crucial checks

before each performance that would ensure the safety of the equipment.

His insistence on doing everything himself eventually caused him to fall

to his death, because he did not discover during his checks that several

ropes securing the wire were not properly connected.19

Teamwork is the key, and all of us are players. And you can never

tell where you will find the best idea. Hence, reaching out to others

becomes an imperative. During a speech a couple of years ago at West

Point, Secretary Gates said that he had found it invaluable in his trips to

the field to meet with and listen to lower-ranking soldiers to help shape

his approach to decisions. He advised everyone in senior positions to

 “listen to enlisted soldiers, NCOs, and company and field-grade officers.

They are the ones on the frontline, and they know the real story.”20

I can guarantee that you can expect to make mistakes if you are

engaged in the front lines of our business. The key is to identify the

mistakes early on. I have found that the best way to do that is to

cultivate open and honest relationships with your subordinates, peers,

and superiors, who will keep you out of trouble by pointing out

something you missed. In other words, always listen to the other players,

especially in high profile cases. You can never tell who will have the

best idea, but it may be from the player on the field, who is closest to the

action and understands the terrain.

And don’t be wedded to a course of action that you previously

supported, especially when facts and circumstances begin to shift in a

way that makes you question whether your initial assumptions or

previous judgments are still correct. For example, after I had objected to

a course of action proposed by one of my Pentagon client organizations,

their staff members would occasionally show me a somewhat similar

action that I had approved years earlier in an effort to persuade me (or

perhaps embarrass me) so that I would withdraw my objection. When

that happened, thankfully not too often, I usually told them that I was not

bound by my previous opinions because one of three things could have

happened: the law and regulations could have changed, the facts and

circumstances might be different, or I had learned from my earlier

mistake and would not repeat it for the sake of being consistent.

V. Be Prepared for an Investigation of the Investigation

That gets me to the third tip: Handle your case as if you might have

to explain your investigative plan, decisions, and results to outside

organizations, such as the DoD Inspector General or FBI, or to a House

or Senate Committee conducting their own investigation into what you

did. I have been in the position of having to account to every one of

these organizations for some Army investigation during my time in the

Pentagon. You need to expect oversight by others, and plan for it, so that

when someone comes to “investigate the investigators,” you are prepared

to show that you followed the rules. The price of your independence is

your accountability to the rule of law, which involves answering

questions posed by others with some authority and responsibility over

your organization. Don’t resent the questions or the questioners, even if

you are tempted to do so as a normal human response.

A. Congressional Relations

I mentioned earlier that one of the first notifications should be to

your congressional oversight committees. Depending on the

relationships between the President’s Administration and the Congress—

and these relationships vary greatly from Administration to

Administration (and sometimes within the same Administration when

there is a change in the composition of the Congress)—you might be able

to leverage both internal and external congressional support for your

position. Public statements of support from key congressional leaders

can provide a public shield for your investigations and their results. For

example, information, such as classified documents, that you cannot

release to the public might be legitimately shared with oversight

committees, enabling them to affirm to the public that they have looked

into the matter and are satisfied that the military’s handling of the

situation was reasonable under the circumstances, even if they too

disagreed with the ultimate outcome.

Sharing information about high profile cases early on, and regularly

thereafter, with congressional oversight committees serves other

overlapping purposes. First, it gives our congressional oversight

community a heads-up about a subject that will eventually be on their

radar screens anyway. My experience is that you can either take the

initiative and give the members and staff a chance to prepare a hopefullysupportive

statement about a case, or, instead, you can wait until they

call and complain about being blindsided about a case that falls within

their jurisdiction. Second, the military should take advantage of every

opportunity to educate members and staff about what you do. A

shrinking number of veterans serve as elected representatives, and many

staffers have no firsthand understanding—and therefore no contextual

knowledge—of the military or of the military judicial system. Thus,

each case can become a famed “teachable moment” and learning

experience about the role of a general court-martial convening authority

and the central relationship between that responsibility and good order

and discipline. If members and staff understand the independent nature

of your prosecutorial, defense, and judicial functions, and how well

insulated they are from unlawful command influence, they may be

willing to forego,or at least postpone, their own inquiry or investigation

into the matters at hand.

Several encouraging signs have emerged over the past few years.

First, the debate over various versions of military commissions bills has

exposed members and staff to the details of the court-martial system and

people like you who make it work. Second, we are now seeing more and

more former military members seek elective office and staff positions on

the Hill, trends that should bode well for the future support for our

military forces. Third, the recent elevation of the Military Service Judge

Advocates General to Lieutenant General is clear evidence and

affirmation of the important role that military lawyers play in our system

of justice. However, the lesson I learned is that we have a continuing

duty to educate others. We cannot take for granted that everyone

understands and accepts the need for independence that we follow as our

fundamental operating principle.

B. Congressional Investigations

A recurring challenge in ongoing investigations, especially if there is

intense media or congressional interest, is handling requests from

congressional oversight committees for access to information before the

criminal investigation and proceedings are complete. According to news

reports in the past few weeks, for example, Senator Liebermann has

demanded access to certain information regarding the investigations

surrounding the Fort Hood shootings. Although the Pentagon reportedly

has made some information available, other information and witnesses

have not been made available so as not to interfere with the ongoing

criminal investigation. In many cases, some compromise can be reached,

but if not, congressional subpoenas are possible.21 If the military is

participating with the FBI in a joint investigation, I have also found it

useful to request that FBI officials visit with members and staff to

explain our joint concerns.

Full-blown congressional investigations are always a possibility in

high profile cases. A recent example is the exhaustive inquiry by the

Senate Armed Service Committee into the abuse of detainees. Their

report, issued in December 2008, detailed the history of policies and

procedures from the White House, Department of Justice, DoD, and

Central Intelligence Agency based on comprehensive interviews and

document searches. The report concluded that “senior officials in the

United States government solicited information on how to use aggressive

techniques, redefined the law to create the appearance of their legality,

and authorized their use against detainees.” On the other hand, a

spokesman for Secretary Rumsfeld called it “regrettable that Senator

Levin has decided to use the committee’s time and taxpayer dollars to

make unfounded allegations against those who have served our nation,”

based on a “false narrative . . . unencumbered by the preponderance of

the facts.”

C. Plan for Full Transparency

No matter where you come out on the report’s conclusions, the point

is very clear that you need to prepare for intense outside scrutiny in any

high profile case. For planning purposes, you must assume that

eventually all the information surrounding an incident, including your

own legal advice and opinions, will surface and be made public. No

matter how confidential, classified, or privileged you may think that

discussions you have about investigations and their disposition may be,

count on everything becoming public some day and act accordingly.

During the years that I worked on intelligence operations and

projects, many of the most secret and highly classified operations on

which I provided advice eventually became public for one reason or

another. An example is the then-secret underground facility built during

the construction of the West Virginia Wing of the Greenbrier Hotel in

West Virginia. The new wing provided cover for an independently

functional, concealed alternative site for the relocation of the senior

leaders of the Federal Government in the event of a nuclear strike.

Conceived during the Eisenhower Administration, the contingency

facility was built from 1959 to 1962 and remained a closely guarded

secret until The Washington Post broke the story in 1992. This story

illustrates that we should never assume that, because something is known

by only a few select individuals today, the world won’t know it by

tomorrow. E-mails, text messages, and social media virtually guarantee

transparency, if mainstream media do not.

VI. Help the Media Frame the Story

My fourth tip is for you to consider how to frame the story, to handle

press inquiries, and to provide enough information so that news

organizations will be able to understand and report on your story. As a

general rule, the Army routinely publicizes most of its activities and

seeks forums in which to tell Soldier stories. As an exception, the Army

generally does not comment on operational matters, ongoing

investigations and litigation, even in response to media inquiries.

However, there are times when comments may be appropriate, and in

those times, you must be careful to consider three basic principles:

A. Be Honest and Open with the Media

First, tell the media as much as you can as soon as possible. If

information and records would be releasable under the Freedom of

Information Act, you generally should encourage your clients to initiate

the release of those facts, rather than require the media to submit a

written request. If you don’t know the answer, say that you don’t.

Despite efforts by your clients to “go directly to the public” with their

story, the media will inevitably interpret the story based on their own

understanding. As a lawyer, you can provide valuable background and

legal context that will educate the media and enable fair and balanced

reporting. Indeed, legal background by subject matter experts became

routine for high profile cases during my time at the Pentagon. Although

the media may not report the story the way that you framed it for them,

you will be on the record with your interpretation of the events.

For obvious ethical and practical reasons, your clients should never

lie to, or mislead, the media. I even recommend against “spinning” a

story in such a way that might call your credibility into question. The

long term trust between the DoD and the media is more important than

the temporary advantages one may think will accrue from parsing the

truth in a particular case. We Americans remain sensitive to the notion

that our government, and especially our military, might somehow try to

manage the news that we receive. The lessons learned from the fall-out

of the Jessica Lynch and Pat Tillman stories, during the course of which

many felt that false stories either were propagated, or allowed to linger,

should always be at the forefront of our minds.

Just look at the concern generated by media reports in August 2009

that DoD had a contract with a public relations firm, whose job was to

review applications by reporters to embed with our military units and

grade their past reporting as neutral, positive, or negative. Although the

Pentagon denied that these reports were crucial to decisions about future

embeds, the controversy surfaced again the following December during

the confirmation process of Douglas Wilson, the nominee for Assistant

Secretary of Defense for Public Affairs. Mr. Wilson told the Senate

Armed Services Committee that he opposed the rating system for

reporters’ coverage, as well as any discrimination against “unfriendly

reporters” during the credentialing process for reporters who want to

embed with our troops. In his written statement to the Committee, Mr.

Wilson said, “In my view, we should never be a party to efforts to place

so-called ‘friendly reporters’ into embeds while blocking so-called

‘unfriendly reporters.’”25 The Senate confirmed him in February 2010,

but the message is clear that fairness and credibility are essential in

dealing with the media at all times, especially in high-profile cases.

Most of us recognize that strategic information and communications

operations are crucial to our fight against threats posed by al Qaeda and

its affiliates, who use the Internet and other media to promote their

propaganda, mobilize support, and radicalize followers. As several

pundits have humorously observed, the U.S. often seems to be outcommunicated

by folks whose material originates from caves in

Afghanistan and Pakistan. Despite our desperate need for better

communications strategies, the Pentagon has reportedly ordered at least

two reviews in the past six months of their information operations

programs to get a better handle on how much money is spent and for

what, especially in light of the recent allegations that contractors were

locating insurgents while pretending to be gathering information.26 A

recurring theme in these reviews is the extent to which information

operations overseas are openly attributed to the U.S. Government and

apparent to the consumers of the information.

B. Defend the System

Second, step up the plate and defend our system of justice, even

when it is difficult to understand or justify a particular result. In any

legal system governed by the rule of law, but administered by all of us

humans, you will sometimes get results that are unpopular and hard to

accept, as when a jury seems to ignore evidence establishing guilt, or a

commander decides to take little or no apparent action in a case where

others are screaming for heads to roll. At those times, particularly in

high profile cases, the public understandably may question whether we

have a fair and independent system that reaches the right results.

This push for a public explanation often presents a dilemma. For a

lot of reasons that have to do with the way that our government leaders

have made decisions in the past, the public and the Congress demand a

fair amount of transparency, arguing for the maximum disclosure of

information. On the other hand, there are legitimate privacy interests at

stake, as well as the independence of those exercising judicial and

administrative authority. Should we put those who play critical roles in

our judicial system—judges, juries, and commanders exercising judicial

functions—in the position of having to defend the exercise of the

discretion allowed them by law to do justice, especially if the public

doesn’t like the outcome? Isn’t that one reason that Federal judges have

lifetime appointments, so that they can do the right thing and uphold the

rule of law without fear of recriminations? On the other hand, don’t we

expect public officials to be held accountable for their exercise of

authority, especially when justice is at stake? Again, the key is to strike

the right balance between providing as much information as possible to

ensure public confidence in the military and its decisions, on the one

hand, and preserving important principles, on the other.

This will be a test of your leadership. These dilemmas require you

as lawyers to step up as leaders and make the case on behalf of the

system in which you work, a system based on the rule of law. When it

comes to talking about or defending the outcomes in particular cases or

classes of cases, you should say as much as you comfortably can, within

the rules of professional conduct and privacy considerations. But here is

the key point: You should be able to defend and explain the system even

when you have difficulty explaining the specific outcome that has

aroused the public’s interest or, perhaps, anger. As I mentioned earlier,

any public statements of support from key congressional leaders can also

help reassure the public that the system was working as designed and in

accordance with the rule of law.

As a practical matter, that means that your leaders at your immediate

commands and your higher headquarters must continue to rely—as they

have in the past—on the outstanding work that you do as leaders and

lawyers every day in your locations around the world. They must rely

on, and have faith in, the premise that you are following the laws,

regulations, and policies that control the procedures and outcomes in all

cases—routine and high profile. When it is necessary for your senior

leadership to explain to the Office of the Secretary of Defense, the DoD

IG, the Congress, the media, and the general public what you have done

in a particular case, they will have faith that you will have done the right

thing, and no one will be embarrassed. They will have faith that you

have followed the rules, even when the rules were time consuming and

seemed to impede the progress of your work at the time.

C. Calculate Your Media Responses

Third, take the long view of media issues. Time and again, I have

advised public affairs officers not to respond to a frivolous one-day story

in the paper. I have found that some stories interest only folks inside the

Capital Beltway, and there will be little or no interest outside the

Beltway. Responding will only make this kind of story a two or three

day story, because, once you respond, the reporter will write another

story. Some stories will die of their own weight if you let them. As

always, the most difficult task is identifying which story has “legs” and

high-profile potential.

VII. Coordinate Multiple Investigations and Ensure Their Credibility

My fifth tip is for you to assume leadership in coordinating the

multiple and overlapping investigations that almost always accompany a

high profile case. Your command sometimes must begin to examine a

management, safety, or leadership problem before you have had time to

investigate fully the allegations that brought the problem to the

command’s attention. This happens often in safety investigations

following aircraft accidents or friendly fire incidents. Although it is

important to know who or what was responsible for the mishap, the most

immediate challenge is to prevent another tragic recurrence. As lawyers,

you are in the best position to exercise leadership and influence

involving investigations, to give advice about the types of investigations

that may be appropriate, and to avoid conflicts among ongoing

investigations.

If it is fairly certain that the incident might lead to criminal charges,

you can ensure that any informal inquiry, Army Regulation 15-6 or other

administrative investigation, or IG investigation will not muddy the

water and interfere with your criminal investigation and eventual

prosecution. Lawyers are uniquely positioned to coordinate

investigations so that they complement each other, pursue the proper

lines of inquiry, and preserve the option of prosecution where

appropriate. Otherwise, investigators may be tripping over each other,

creating conflict among witnesses, and otherwise breeding evidentiary

problems. A recent example of this unfortunate outcome involved the

infamous shootings by private security contractors, resulting in the

deaths of fourteen Iraqi citizens in a traffic circle in Baghdad in

September 2007. Judge Urbina dismissed the charges against five

Blackwater employees in January 2010 because of the botched

investigations and prosecutions. Although the Department of Justice is

appealing the dismissal, the lesson about coordinating multiple

investigations is clear. Where several investigative efforts are

proceeding simultaneously, my advice is simple and to the point: The

criminal investigative effort should have a green light, and every other

investigation should have a flashing yellow caution, which requires the

lawyer’s approval to proceed.

Another factor to think about as you decide how to approach the

investigation is whether your organization can investigate the allegations

at all with any credibility. Depending on the size and scope of the case,

the President or Secretary of Defense may form a commission of

outsiders, typically former senior officials from all three branches of

Government with the background and experience to lend credibility to

their findings and recommendations. The deliberations of these

commissions may be subject to the provisions of the Federal Advisory

Committee Act, a point often overlooked at the beginning in the

eagerness to buy the time and cover that these commission often provide.

Even so, because the military is often criticized for investigating

itself, you should consider whether you should refer the matter to higher

headquarters or another appropriate agency, such as the FBI or the

Defense Criminal Investigative Service. As unfair as this criticism may

be, and although our clients understandably resent having some outsiders

come into their organizations and take care of their dirty laundry, I have

recommended to my Pentagon clients from time to time that the most

practical and efficient course of action was to ask the FBI, DoD

Inspector General, or a sister service to come in and conduct an

investigation. This was because I knew that the Congress and the public

would never accept the credibility of an investigation by any Army

element. On the other hand, you must remain alert to discourage other

investigative agencies without clear authority from expanding their

jurisdiction creatively into Army activities when the Army is clearly

capable of a credible investigation. A comfortable middle ground in

some cases might be a joint investigation with the FBI or other agencies

with which there is overlapping jurisdiction.

When your organization is conducting an investigation, watch for

conflicts that may develop for investigating officers and agents because

of preexisting relationships. If an agency is—or had been—too close to

the functions or people under investigation, look for alternatives.

Similarly, you should alert investigative officers to identify issues

uncovered during the course of their investigations that are not within the

scope of their inquiry but should be referred to another agency or office

for follow up.

VIII. Whom Do You Hold Accountable?

Finally, my sixth tip is to think about accountability as you come to

closure. When you think about accountability in today’s environment,

you cannot ignore the events of the past couple of years. Consider the

public interest in accountability in our national security community:

--the questions raised about the National Security

Agency’s terrorist surveillance program, and the issues

of how much information was shared and who objected

during high level briefings to a small number of key

congressional leaders;

--the questions raised by the Judiciary and Armed

Services Committees of the Senate about senior leaders’

and lawyers’ accountability for the interrogation rules

and policies that the Senate Armed Service Committee

found contributed to coercive interrogation practices;

--the continuing questions about who was

responsible for intelligence and air safety failures in

connection with the alleged Detroit bomber; and

--the questions under review by a special prosecutor

about whether Central Intelligence Agency (CIA) agents

violated Federal laws during overseas interrogations of

detainees.28 (You may recall that former Vice President

Cheney opposed the decision as a political move to

satisfy the liberal wing of the Democratic Party and

expressed concern that the review might hamper the

willingness of agents in the future to do their jobs.29 On

the other hand, the appointment of the special prosecutor

was based on the findings of the CIA’s own Inspector

General that agents had exceeded the limitations in

effect at the time of the interrogations and used

My point is that we cannot afford to overlook the accountability

piece of the equation. There are a lot of Monday morning quarterbacks

out there, and as Norman Augustine, former Chief Executive Officer of

Lockheed Martin, once wrote about people like auditors, inspectors, and

Monday morning quarterbacks, “Murphy taught that if anything can go

wrong it will, but it was left to Evans and Bjorn to point out in their law,

‘No matter what goes wrong, there will always be someone who knew it

would.’”

If you look at the track record of the current Secretary of Defense,

you will see clear evidence of his willingness to hold senior officials

accountable. Secretary Gates remarked back in February, when he

replaced the major general in charge of the Joint Strike Fighter program,

“If I’ve set one tone at the Department of Defense, it’s that when things

go wrong, people will be held accountable.” Indeed, the list of senior

officials he has relieved is impressive, including the top U.S. commander

in Afghanistan in 2009, the Air Force Secretary and Chief of Staff (on

the same day) in 2008 in connection with the control of nuclear weapons,

and the Secretary of the Army in 2007 as an outgrowth of the treatment

of wounded warriors at Walter Reed Army Medical Center.

What this means to us—as practicing lawyers—is that we should

think through accountability issues and identify them for our leaders and

clients. This requires brutal honesty, at times, because our leaders—and

even we—may bear some responsibility. I believe that our clients in the

highest levels of the Executive Department and our officials in the

oversight community expect and deserve our best effort—a procedure for

fair investigation, analysis, and review. They will be more likely to

accept our judgments, even if they do not agree with them, if we can

show that the accountability process was open and even-handed.

A word of caution: All of us who are players get roughed up from

time to time. This is especially a problem for lawyers. When things go

wrong, our clients have an annoying and predictable tendency to blame

us, in addition to relying on us to get the command or them out of a box.

As unfair as this often may be, we cannot turn away from the action; we

cannot play it so safe that we become irrelevant and ineffective. We

must not be intimidated by those looking over our shoulders, but must

continue to do what government attorneys always should do: Speak truth

to power.

IX. Conclusion

So to summarize my thoughts, I am leaving you with six suggestions

about how you can exercise leadership and provide advice after you have

identified a case with high profile potential:

1. Ask what the normal rules are and why you would

not follow them in the high profile case. That

becomes your best defense against later claims of

preferential treatment or double standards.

2. Ask the question, “Who else needs to know?” Keep

your headquarters and oversight bodies in the

information loop. Err on the side of over-reporting

to enhance your credibility. And take advantage of

the expertise and experience of others who have

“been there, done that, and have the t-shirt.”

3. Conduct your investigation as if you will have to

account to an oversight authority for every decision

and action you take.

4. Consider how to frame stories and handle press

inquiries without misleading the media. Step up to

defend the system, even when you cannot defend the

specific decision.

5. Exercise leadership in coordinating multiple

investigations, and keep a balanced perspective on

who should conduct investigations.

6. Think carefully about accountability.

In closing, I want to thank all of those who made the arrangements

for this event and for your hospitality during my stay here. I also want to

thank the staff and faculty for the outstanding service that you provide

our legal community and our Nation. This Legal Center and School has

clearly become the epicenter of military legal education. I wish to

congratulate all the members of the 58th Graduate Course, to thank you

for your continuing service, and to wish you the best in your new

assignments around the world. And, finally, I want to offer a word of

special thanks to those who have served in harm’s way, and those going

to assignments where an overseas deployment is on your radar. You and

your families will always have our deepest appreciation for your

sacrifices and will remain in our prayers.

*For citations see 366 MILITARY LAW REVIEW [Vol. 204]