Lt Col Christopher T. Stein of the U.S. Air Force writes:
This is a defining moment for the military and the JAG Corps.
The secretary has thrown open the door for bold reform, and now it is up to us to walk through it. That means cutting the layers of bureaucratic micromanagement, eliminating unnecessary compliance tasks, returning nonlegal functions to their proper career fields, and rightsizing the force.
It means a refocusing on the law: Let the JAGs be lawyers again, anchored by constitutional principles, not adrift with shifting political winds. Our job is not to perpetuate the mistakes of the past but to ensure the military is ready to meet the challenges of the future. We can either cling to outdated structures or seize this opportunity to build a stronger, more effective legal force that is uncompromising in integrity and fearless in execution.
Comments are invited. Given the current volatile political situation, the usual rule against anonymous comments is hereby waived. Comments will, however, continue to be moderated.
Although I have taken a very opposite position, I would welcome some debate on the topic and some support for the position that the JAG Corps needs reform. But the lack of support and details in this article make it hard to take it seriously or to really engage with it from either a practical or academic perspective.
ReplyDeleteIn my career advising command, I on a number of occasions saw legal opinions "tailored" depending on the commander and how politically charged the topic was. In my opinion, the advice led to situations where legal advisors acquiesced to commanders demanding that we "find a way to yes" instead of telling it straight.
ReplyDeleteI accept it is easy to throw that out into a comments section where I am unable to back it up with examples without breaching privilege. But I support as a general principle that legal advisors should be "uncompromising in their integrity and fearless in execution".
I view it as a symptom of the requirements to advance. Individuals are selected for promotion based almost exclusively on the opinion of their superiors. There is no scope for command considering the opinions of their peers; assessment of their learned friends in the wider profession as to their legal acumen; or, dare I say it, their subordinates as to their leadership qualities. We need to incentivise the qualities we want and discourage the qualities we don't want.
[Part 1 of 3]
ReplyDeletePart of the issue - and it is a big part - is how someone might view the role of military legal advisors conceptually. And it is clear that my concept of the role of military legal advisors does not align with that of LtCol Stein or the current SECDEF.
Then again, I am Canadian.
And my concept of the role of military legal advisors is grounded in both the practical reality and the normative expectation that legal advisors are likely the 'last line of defence' for ensuring that a nation's armed forces are governed by the rule of law. That is why legal review of certain types of decision-making is incorporated into the very legislation governing the armed forces.
Where I likely disagree is what LtCol Stein characterizes as "unnecessary compliance tasks". If I understand his comment (and it may be that he is referring to something else), then this reflects a sentiment similar to what a former colleague of mine once said to me: "We are not the Canadian Forces' compliance officers."
However, if LegAds are not central actors in compliance, then who is? While it is true that commanders have a clear role to play, they are not schooled in the law. And educating commanders on the law does not derogate from what is characterized as "apolitical lawyering". Recently, we have witnessed lawyers being accused of acting with political bias when they are expressing and complying with the law.
If I may be blunt (and when am I not blunt?) what we have witnessed in the US over the past few weeks is an increasing abandonment of the rule of law - a fundamental cornerstone of any democracy - and a flirtation with, if not a descent into, fascism. And one of the first targets of any aspirational fascist regime is the rule of law.
Forgive me if my elbows seem a bit sharp.
[Part 2 of 3] I concur with Anonymous - and, fortunately, I don't have to be anonymous - that there is a very real danger when legal advisors tailor their advice to meet the expectations of those whom they advise, rather than reflect the state of the law. And I can back up my comments with a recent concrete example that was litigated before our Federal Court.
ReplyDeleteIn 2019, I began to encounter an increasing number of circumstances in which a provision relating to the right of an accused (under our Code of Service Discipline) to elect trial by court martial instead of what was then a summary trial (similar to NJP/Art 15 under the UCMJ) was being misinterpreted. Specifically, the provision (what was then art 108.17 of our QR&O) was being interpretated in a manner that markedly narrowed the right to elect trial by court martial when a member of the CF was charged under s 129 of the National Defence Act (our 'devil's article' - "conduct/act/neglect to the prejudice of good order and discipline") . It pretty much eliminated the right of election for court martial when an accused faced such a charge. And that was not the legislative intent. I was increasingly encountering an interpretation that had not previously been evident in the 20 years since our Code of Service Discipline was significantly reformed under Bill C-25.
And the key issue here is that this misinterpretation was not only being applied by the statutory decision-makers who were empowered to mete out justice, but also - and perhaps more pointedly - by their uniformed LegAd. In fact, this misinterpretation of art 108.17 of the QR&O was clearly driven by LegAds who were consistently advising decision-makers that they could withhold the right to elect trial by court martial in circumstances in which art 108.17 clearly established that such a right could not be withheld.
And we are not talking about an interpretation upon which reasonable people could disagree. We're talking about a provision where there was only one reasonable interpretation. Moreover, the erroneous interpretation only seemed to arise around 2019, at a point where the provision in question had existed for approximately 20 years.
And this was clearly an institutional position adopted by the Office of the JAG (OJAG), as the misinterpretation was applied in multiple instances around the CF. And, when this interpretation was challenged, the response given was repeatedly "... my legal advisor informs me that my interpretation is correct ...", or words to that effect.
The only logical conclusion that can be drawn is that the chain of command did not want the accused to be able to elect trial by court martial in those circumstances, the legal advisors responsible for the superintendence of military justice 'empowered' those decision-makers to ignore the law through their advice, and the people responsible for such prosecutions did not want to prosecute such allegations at court martial.
[Part 3 of 3] I have written about this issue in my own blog, repeatedly:
ReplyDeleteSome Observations on ‘Military Justice’ at Summary Trial, 25 May 2022: https://roryfowlerlaw.com/some-observations-on-military-justice-at-summary-trial-part-i/
Some Observations on ‘Military Justice’ at Summary Trial – Conclusion, 13 June 2022: https://roryfowlerlaw.com/some-observations-on-military-justice-at-summary-trial-conclusion/
Noonan v AGC, 2023 FC 618 – An unsurprising result and its second-order implications, 5 May 2023: https://roryfowlerlaw.com/noonan-v-agc-2023-fc-618-an-unsurprising-result-and-its-second-order-implications/
I suggest that a first year Call would have inevitably drawn the conclusion drawn by Justice Zinn in Noonan v Canada (Attorney General), 2023 FC 618. Yet, institutionally, the OJAG opted to interpret the relevant provision not only incorrectly, but unreasonably.
Arguably, legal officers in the CF enjoy even greater independence than their colleagues in the US armed forces. The commanders they advise have very limited impact on their annual performance assessments. Legal officers whose duty is to provide legal advice are posted to the OJAG, not the commands and formations they advise. And they do not fall under the command of the officers whom they advise. While those commanders are free to offer input to the legal officers' supervisors regarding performance assessment, that assessment is conducted by supervisors in the OJAG.
(I will say this: in some instances, the opinions of the Commanders advised by a legal officer have little or no impact on the legal officer's assessment by the officer's superiors in the OJAG. In other instances, too much weight is given to the opinion of the advised commander(s). Some commands - such as our Special Forces Command - seemingly dictate which legal officers they are willing to accept, and it appears that the JAG is willing to let select commanders dictate who will be assigned to advise them.)
My point is this: I agree with "Anonymous" that legal advisors must be uncompromising in their integrity and fearless in execution. And not infrequently, that integrity and fearlessness will need to be on full display in defence of the rule of law within the governance of the armed forces. If it is not, a nation risks abandoning democratic principles.