The Ethical Challenges of the Operational Lawyer
It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.
Many military lawyers might believe they are only in the arena when they are in the courtroom. Nothing can be further from the truth—especially for the operational lawyer. While lawyers have found themselves increasingly vital to the planning and execution of military operations, most of those operations occur without the actual presence of lawyers. There was no lawyer on the gunship that mistakenly opened fire on a Médecins Sans Frontières medical facility in Kunduz, Afghanistan in October 2015, yet one of the aircrew still expressed reservations about whether they were engaging a valid military objective under the law of war. In the special operations forces (SOF) context, there are no lawyers on the teams conducting missions, but we know from those more notorious cases where missions went wrong like Operation Red Wings, that decisions were made with law of war ramifications. While some may be inclined to ask whether a lawyer could have done more to prevent this and similar incidents, the better question is whether the process failed for the lawyer to get the right advice to the right people at the right time to make the right decision.
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External Links to Additional Resources
Médecins Sans Frontières medical facility in Kunduz, Afghanistan
- NBC News: Pentagon Punishes 16 for Afghan Hospital Airstrike
- NYTimes: How a Cascade of Errors Led to the U.S. Airstrike on an Afghan Hospital
Operation Red Wings
- The History Reader: June 28, 2005: One of the worst Days in U.S. Special Operations History
…the better question is whether the process failed for the lawyer to get the right advice to the right people at the right time to make the right decision.
With all of the challenges of the current strategic environment, the ethical duty of the operational law practitioner to uphold good process—which includes not only making sure that the right things are done the right way, but also that the practitioner is in the right place at the right time—takes on increased significance. This ethical duty is not limited to lawyers working in the halls of the White House or the corridors of the Pentagon. It applies to all military lawyers. It may sound simple enough, but it is a duty that never ceases and underlies all the ethical duties espoused by the rules of professional conduct. A good lawyer may be competent and diligent, but what good is that competence and diligence if the lawyer is not present at the key moment of operational decision?
A good lawyer may be competent and diligent, but what good is that competence and diligence if the lawyer is not present at the key moment of operational decision?
In the national security context, ethical rules like competence and diligence take on new meanings and obligations. The good news is that it is relatively simple to identify these ethical baselines. The bad news is that it takes a great deal of dust and sweat and blood to achieve them. To uphold good process, the JAG must be in the arena. The emergence of operations law as a separate and distinct field of practice was due in large part to JAGs who embodied the concept of being in the arena—they had to fight for their place on the team. We bear the same burden today.
The Rules of the Game: The National Security Process and the Ethics Rules
[T]he majority of legal advice within the national security process is not directed, but is the product of practice, custom, and personal interchange between lawyer and client. That means that good process requires personal persuasion, presence, and value added, or the lawyer will find that he or she is only contributing to decisions where legal review is mandated and then only as a last stop on the bus route.
The writings of Judge James E. Baker, the current chair of the American Bar Association (ABA)’s Standing Committee on Law and National Security, provide a good source for the “rules of the game.” Judge Baker once described the plain truth that “good government is difficult work.” What is true in the broader national security context is equally true at the operational and tactical levels. What makes it so difficult is not just knowledge of the rules themselves, but also an added commitment to the process that applies and enforces those rules—especially when our clients are at their tensest and focused on the outcome over the process.
National Security Process for the JAG
In his book, In the Common Defense, Judge Baker writes that the law “depends on the morality and courage of those who apply it” and “on the moral courage of lawyers who raise tough questions, who dare to argue both sides of every issue, who insist upon being heard at the highest levels of decision-making, and who ultimately call the legal questions as they believe the Constitution dictates and not necessarily as policymakers [or commanders] may want at a moment in time.” In a 2002 address to senior JAGs, Judge Baker noted, “It is axiomatic that the national security lawyer’s duty is to guide decision-makers toward legally available options. In performing this function in a timely and meaningful manner, the lawyer provides for our physical security. In doing it faithfully, based on the application of law, they provide for the security of our way of life, which is founded on the rule of law.” The key to success is what Judge Baker refers to as good process—good process, in the national security context, leads to better results because it puts players in the right place at the right time with the right tools to make the right call.
Process can be viewed as a nuisance in the operational world, but good process starts with the old adage—work smarter, not harder.
Process can be viewed as a nuisance in the operational world, but good process starts with the old adage—work smarter, not harder. For this reason, Judge Baker suggests that the process of national security law is arguably more important than its substance. In reality, process underlies the substance of not only national security law, but also an attorney’s ethical obligations. The key to understanding this is to look at these rules through the lens of process.
Three Ethical Rules
Using the Air Force Rules of Professional Conduct in Air Force Instruction 51-110 as a guide, three ethical rules guide the lawyer to make sure she is there when needed (i.e., diligence), that her advice is meaningful (i.e., competence), and that it is accessible (i.e., advisor). Diligence requires an attorney to act with “promptness in representing a client.” Competence requires “the legal knowledge, skill, thoroughness, and preparation necessary for representation.” Finally, being an advisor mandates that “a lawyer shall exercise independent professional judgment and render candid advice” and in doing so “may refer not only to law, but other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.” Each of these rules, in their own way contribute to the preservation of good process because they urge the attorney to take individual initiative to be in the right place at the right time to make sure things are done the right way. The rise of operations law itself as a separate discipline within the JAG Corps is a prime example.
Good JAGs know the law, great JAGs know the mission.
How Judge Advocates Joined the Game: The Rise of Operations Law
The old adage found on plaques and bookmarks, “good lawyers know the law, great lawyers know the judge,” can be modified for our purposes to read, “good JAGs know the law, great JAGs know the mission.” You, of course, must know both and be prepared to apply that law to the mission to assist commanders across the entire spectrum of Air Force operations. The mission’s success depends on it, and the Airmen we serve depend on us to deliver the professional, candid, independent, and quality legal counsel that overcomes the threats and secures victory.
Last year marked the 50th anniversary of the My Lai massacre, which occurred in March 1968. That incident planted the seeds for what would eventually become a new discipline within the Judge Advocate General’s corps of the armed services—operations law. While defined slightly different by each service, the general definition encompasses the “domestic, foreign, and international law associated with the planning and execution of military operations in peacetime or hostilities.” Operations law has been called a “parallel discipline” to national security law. Indeed, the Army and Navy recently renamed the discipline as such. For the Air Force, the rise of operations law as a separate and distinct discipline within military legal practice began in Vietnam.
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My Lai massacre
While Air Force JAGs had been on the ground in Vietnam since 1962, many did not have the security clearance to be in the operations room. The First 50 Years: U.S. Air Force Judge Advocate General’s Department documents the events that led to the creation of the operations law discipline. The My Lai massacre and the creation of the DoD Law of War Program was the most critical of these events. Yet, the DoD Law of War Program was only the first step in the process. It took initiative from Judge Advocates in all services to build the discipline into what it is today.
In the 2001 International and Operations Law Edition of Air Force Law Review, then-Colonel Charles J. Dunlap, Jr., credited then-Colonel Bill Moorman, the 12th Air Force Staff Judge Advocate during Operation JUST CAUSE, with arranging “to get JAGs into the operation center as well as the planning cells, all with good effect.” This was the “first instance of Air Force lawyers participating to this extent in operations planning.” It was a far cry from the “general mistrust among commanders concerning any restrictions placed upon their freedom of action, specifically the application of LOAC and Rules of Engagement (ROE).” Indeed, Judge Advocates proved to be true mission enablers by establishing that “they could contribute more to the planning effort than purely legal advice.” This eventually paved the way for the 4 August 1988 memorandum from the Joint Chiefs of Staff requiring combatant commanders to have legal advisors immediately available to provide advice on ROE, LOAC, and related matters during planning and execution of joint operations and exercises.
We cannot afford to wait for war to bring judge advocates into the operations and planning environment.
The success of Air Force JAGs in Operation JUST CAUSE spilled over into the support provided to Operations DESERT SHIELD and DESERT STORM in 1991. Shortly thereafter, the Air Force formerly established operations law as a new legal discipline through a joint letter signed by the Air Force Deputy Chief of Staff for Plans and Operations, Lieutenant General Michael A. Nelson, and the Judge Advocate General of the Air Force, Major General David C. Morehouse on 11 December 1991, which stated that, “we cannot afford to wait for war to bring judge advocates into the operations and planning environment.” This statement holds true today, but it took the diligent efforts of competent Judge Advocates advising on legal and related matters across multiple conflicts to get the Air Force to formally recognize this concept of legal support.
Excerpt from JAG Corps Values & Vision: Air Force Legal Support for the 21st Century
- 1989: Operation JUST CAUSE: A theater-level legal staff was fully integrated in crisis action planning
- 1990-1992: Operations DESERT STORM and RESTORE HOPE: Full-spectrum legal services realized—from mission planning to multifaceted legal support at deployed locations and home bases
- 2000: The first Joint Air Operations Center Legal Advisor Course was held at Hurlburt Field, Florida, to provide the specialized skills needed by legal advisors to Joint Forces Air Component Commanders and their staffs
- 2001: Operations NOBLE EAGLE and ENDURING FREEDOM began; Operation IRAQI FREEDOM commenced in 2003: Legal professionals provided unprecedented levels of support in areas such as target planning and lawfare
Playing the Game: Staying in the “Midfield”
In doing your work in the great world, it is a safe plan to follow a rule I once heard on the football field; don’t flinch, don’t fall, hit the line hard.
Today’s strategic environment depicted by the current National Security Strategy and National Defense Strategy highlight several challenges for the modern operations law practitioner. Many of these challenges will call for rapid-fire decisions. Judge Baker writes that, “Not every attorney is suited to a process of decision-making that can be rapid and is conducted under stress and often involves the application of law to uncertain or emerging facts.” Likewise, “[i]t may be difficult for lawyers who prefer practice areas oriented toward black-letter law and absolute answers.” This is often the case in the operations law discipline. Nonetheless, Air Force lawyers must be prepared to advise in this area. Using the three ethical rules mentioned earlier as guideposts, this section demonstrates how these ethical rules can be leveraged to keep our team in the midfield.
Diligence—Appreciate the Grind
The leading rule for the lawyer, as for the man of every other calling, is diligence.
Diligence in the national security arena is often associated with the need to quickly make decisions during a crisis (e.g., in a dynamic targeting situation where an attorney must quickly advise on whether a target is valid to be attacked); however, it also means taking individual initiative to reasonably prepare oneself to be ready to advise on those quick decisions before they happen. In the non-legal military context, this is readiness. As JAGs, the ethical duty of diligence requires a certain level of readiness in the operations law context.
JAGs often hear of the importance of “being in the room.”
It is very easy to act with diligence when one is directed to do so. It is not so easy to take the individual initiative when there is no explicit requirement to do so. For example, JAGs often hear of the importance of “being in the room.” Lawyers have to be in the room when a trial is taking place, but in the field of national security law, it is not always so easy to be in the room to render advice. It’s easier in established locations like an Air Operations Center (AOC), but in other commands, it may require additional effort. Diligence in this context means not just waiting to see where JAGs can start to have influence in this new environment, or to act quickly when advice is sought, but to proactively seek out where they can enable the mission within their own commands and steer it in the right direction. As Judge Baker writes, “National security process is never designed to convenience the lawyer. Sometimes it is specifically designed to avoid the lawyer.” To combat this, the JAG must act with diligence to not just be in the right place to give those answers, but be ready to give those answers as well, and that also requires competence.
Competence—Play the Way You Practice
In short, national security practice requires a capacity to close on issues and make decisions, identifying nuance and caveats, if necessary.
In his paper, Ethics Issues of the Practice of National Security Law, General Dunlap writes that competence in the national security context requires the practitioner to “have a deep enough level of understanding of the means and methods of national security activities to be able to offer lawful alternatives when possible.” When this is done right, the practitioner’s “‘client’ commanders have greater faith in them, and will more readily incorporate them into the decision-making process.” This is the true value of competence. It requires “a comprehensive and in-depth knowledge of not just the law, but also the ‘client’ and his or her unique ‘business.’” Thus, while competence primarily requires a degree of individual initiative in knowing the law applicable to the mission, it also requires acquiring knowledge of the mission itself to avoid the pitfalls of ethical failure. This is particularly true in the operational environment. A practitioner may never know when they will be called to render an opinion in a dynamic tactical situation. There is no better way to hone this competence than through practice—whether it is through self-study, exercises, simulations, or real on the job training sought out during a deployment.
Advisor—Surrender the Me for the We
Judge Advocates cannot maximize their understanding of the military arts and the national security process by simply taking up shop behind a desk.
General Stanley A. McChrystal writes that “today, every aspect of military operations requires competent, ethical, and timely advice.” He views this as an “inevitable consequence of the complexity of the twenty-first century military environment.” The trick is to ensure clear delineation between legal and policy advice. Colonel Lisa Turner, in her article on the Detainee Interrogation Debate, notes that there is an equal concern with ensuring the lawyer does not go too far down the path of policy-advocate rather than advisor. This is the danger of taking this duty too far.
Knowing the danger of the extremes, JAGs must be willing to step out from their role as the “legal advisor” to become “visible in the organization” or “part of the organization.” Doing so also helps build credibility with the commander and the rest of the organization. It may be as simple as visiting the flying squadrons to actually learn their mission. Learning (or taking part in) the mission not only helps build competence and credibility with those we seek to advise, it may also help shape the legal advice rendered. It also helps to establish that good process where effective, timely, and meaningful advice can be rendered at a critical juncture where time is of the essence. Serving as an advisor, a JAG can embed into the decision-making process by adding value beyond simply rendering legal advice when required to do so.
The End Game: Achieving “Competitive Greatness”
Competitive Greatness is having a real love for the hard battle knowing it offers the opportunity to be at your best when your best is required.
Being in the arena is not easy. It requires courage, both moral and physical, and it requires endurance. Operations law is not a spectator sport and the game shows no signs of slowing down in the near future. JAGs need to be ready to meet the legal and ethical challenges that lie ahead. Fortunately, this does not require any change to how the game is played, but rather a renewed commitment to the rules that already govern the conduct of JAGs of every military service. This requires an ethical commitment to dare greatly by not only mastering the substance of operations law, but also mastering the process of operations law.
In doing this, the JAG is best situated to achieve competitive greatness—that is to relish the opportunity to give the best possible advice at the right time. Adherence to our ethical code brought JAGs into the national security arena through the development of operations law as a separate discipline. Now, renewed adherence to that code will ensure that JAGs will continue to contribute meaningfully to the substance and process of operations law as the military faces new strategic challenges in the coming years. It will not be easy, but in striving to meet these ethical challenges, JAGs will never be with those cold and timid souls who neither know victory nor defeat.
About the Author
 Theodore Roosevelt, Address to the Sorbonne, Paris: Citizenship in a Republic (23 April 1910), http://www.theodore-roosevelt.com/trsorbonnespeech.html [since being cited, this link appears to no longer be available].
 See Major General William Hickman, Army Regulation 15-6 Investigation Report of the Airstrike on the Medecins Sans Frontieres/Doctors Without Borders Trauma Center in Kunduz, Afghanistan on 3 October 2015, xii. The investigator found that at one point during the mission the TV Sensor Operator on board the aircraft “expressed concern regarding communications….stating, ‘He is being very vague, and I’m not sure if that’s going to be people with weapons or just anybody, so we will stay neutral as far as that goes.’
 See generally, Marcus Luttrell, Lone Survivor (2005). As related by the author, the SEAL team engaged in a debate over whether to execute Afghan goatherds that came across their possession during a reconnaissance mission. The decision was made to let them go despite the belief be some on the team that they might inform the enemy of their location. Shortly thereafter, the team came under fire from enemy forces that were likely alerted to their location by the released goatherds, killing all of the team except Luttrell.
 See infra Section III. The Air Force JAG Corps recognized operations law as a separate discipline in 1991, in a memorandum issued jointly by The Judge Advocate General and the Deputy Chief of Staff, Operations and Planning.
 James E. Baker, The National Security Process and a Lawyer’s Duty: Remarks to the Senior Judge Advocate Symposium, 173 Mil L. Rev. 124, 124-125 (2002). [hereinafter, “Baker Remarks”]
 Prior to his current position at the ABA, Judge Baker was the Chief Judge of the U.S. Court of Appeals for the Armed Forces and also a former legal advisor to the National Security Council. In addition, he served as a United States Marine infantryman.
 Baker Remarks, supra note 5, at 124.
 James E. Baker, In the Common Defense 325 (2007).
 Baker Remarks, supra note 5, at 130.
 Baker, supra note 8, at 24. Antithetically, Baker posits that “Bad process is bad. It may impede decision, dilute decision, and be used to bypass critical actors as well as the law.” Id.
 See Generally, James E. Baker, Process, Practice, and Principle: Teaching National Security Law and the Knowledge that Matters Most, 27 Geo. J. Legal Ethics 163-189 (2014).
 See U.S. Dep’t Air Force, Instr. 51-110, Professional Responsibility Program attachment 2, Rule 1.1, Rule 1.3, and Rule 2.1 (11 Dec. 2018) [Hereinafter, Air Force Rules].
 Id. at Rule 1.3.
 Id. at Rule 1.1.
 Id. at Rule 2.1.
 Lieutenant General Christopher F. Burne, Judge Advocate General of the United States Air Force, from Foreword to Air Force Judge Advocate Gen.’s School, Air Force Operations and the Law iii (2014).
 Nancy Montgomery, What Led to My Lai?, Stars and Stripes, U.S. Ed., Vol. 10, No. 15, 2-4 (23 March 2018).
 See generally, Colonel Robert L. Bridge, Operations Law: An Overview, 37 A. F. L. Rev. 1 (1994).
 Dep’t of Air Force, Instr. 51-101, The Air Force Judge Advocate General’s Corps (AFJAGC) Operations, Accessions, and Professional Development (29 November 2018). The full definition reads: “The domestic, foreign, and international law associated with the planning and execution of military operations in peacetime or hostilities. It includes, but is not limited to, the Law of Armed Conflict, the law relating to security assistance, training, mobilization, pre-deployment preparation, deployment, overseas procurement, the conduct of military combat operations, counter-terrorist activities, status of forces agreements, operations against hostile forces, and rule of law operations. Operations law is the application of law to a specific mission of the supported Air Force unit.”
 National Security Law & Policy xiii (John Norton Moore, Guy B. Roberts & Robert F. Turner eds., 3d ed. 2015).
 The Air Force JAG Corps Flight Plan identifies National Security Law as comprising all three major legal domains of the JAG Corps (military justice and discipline, operations and international law, and civil law) and bridges JAG Corps practice to the strategic national security strategy and associated documents. See JAG Corps Flight Plan, 28 December 2018.
 See Generally, Fredric L. Borch, Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti (2001); see also Patricia A. Kerns, The First 50 Years: The Air Force Judge Advocate General’s Department (2001).
 Kerns, supra note 21, at 61.
 Id. at 137.
 Later Major General (ret.) and served as The Deputy Judge Advocate General of the Air Force.
 Colonel Charlie J. Dunlap, Jr., Revolution in Military Legal Affairs, 51 A. F. L. Rev. 293, 295 (2001).
 Kerns, supra note 21, at 138.
 Major Leonard L. Broseker, Sword in the Sand: Operations Desert Shield and Desert Storm, The Reporter, Special Hist. Ed., Vol. 26, at 138, 141 (citing Steven Keeva, Lawyers in the War Room, A.B.A. J., December 1991, at 52: “Relations were often marked by suspicion and a belief—on the commander’s part—that lawyers, together with politicians, were an obstacle to winning the war.”).
 Lieutenant Colonel Terrie M. Gent, The Role of Judge Advocates in a Joint Air Operations Center, Airpower J. 40-55 (September 1999), http://www.dtic.mil/dtic/tr/fulltext/u2/a529835.pdf.
 Id. at 45.
 Id. at 47.
 See Memorandum from Sec’y of Def. to All Dep’t. of Def. Employees, subject: Ethical Standards for All Hands (4 Aug. 2018). [hereinafter, “Ethical Standards Memo”]
 Theodore Roosevelt, http://www.azquotes.com/author/12606-Theodore_Roosevelt/tag/football (last visited 2 August 2019).
 Baker, supra note 8, at 313.
 Abraham Lincoln, Notes for a Law Lecture (1 July 1850), http://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm (last visited 4 February 2018).
 See Charlie J. Dunlap, Jr., Ethical Issues of the Practice of National Security Law: Some Observations, 38 Ohio N. U. L. Rev. 1057, 1076 (2012).
 Baker, supra note 8, at 314.
 Id. at 313.
 Dunlap, supra note38, at 1072.
 The same can be said in the deliberate targeting process as well. The ATO is doctrinally on a 72-hour cycle, but less than 24 is actually devoted to planning and getting those approvals, which leaves even less legal preparation time.
 Operations law experience can be gained and maintained in a number of ways, but it really begins and ends with hitting the books. Attorneys new to the practice area have a number of good resources like the DoD Law of War Manual to aid them in getting better insight into the complex issues that can arise in the discipline.
 The full quote here is, “Good teams become great ones when the members trust each other enough to surrender the ‘me’ for the ‘we.” Phil Jackson, https://athleteassessments.com/coaching-quotes-best-sports-coaches/.
 Renn Gade, The U.S. Judge Advocate in Contemporary Military Operations: Counsel, Conscience, Advocate, Consigliere, or All of the Above?, in U.S. Military Operations: Law, Policy, and Practice 28 (Geoffrey S. Corn, Rachel E. VanLandingham, & Shane R. Reeves eds., 2016) [hereinafter, U.S. Military Operations].
 General Stanley McChrystal, Foreword, in U.S. Military Operations, id., at xi.
 Dunlap, supra note 37, at 1084.
 Turner, supra note 132, at 45. Colonel Turner also cites Jeh Johnson, former DoD General Counsel, who said, “You must live by one simple rule: you wear the uniform of a JAG to help policymakers and commanders shape the policy to fit the law, not to shape the law to fit the policy.” Id. at 42.
 Colonel (Ret.) Renn Gade, quoted in U.S. Military Operations, supra note 46, at 29.
 John Wooden Official Website, Pyramid of Success: Competitive Greatness, http://www.coachwooden.com/pyramid-of-success#Pyramid/1 (last visited on 2 August 2019) (excerpted from John Wooden, Wooden on Leadership (2005)).