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Military Ethic and the Judge Advocate General’s Corps: Legal Guardians of the Profession of Arms

 
April 15, 2013

The year 2011 began quietly, while the issues that would frame leadership discussions in the months to come were still stirring, almost surreptitiously in the background. That lasted a day. On Sunday, 2 January 2011, Admiral Mike Mullen, then Chairman of the Joint Chiefs of Staff, appeared on Washington’s Sunday morning talk show circuit. He talked about leadership and the need for the armed services to pause for introspection after more than a decade at war:

We’ve learned a lot about ourselves in the past decade; some of it’s been pretty unpleasant stuff. I want us to understand what we’ve seen, to a depth that we can ensure that our moral compass stays true, our ethical compass stays true.

The week prior, the U.S. Naval Institute’s professional journal, Proceedings, was delivered to subscribers. Inside, an article titled “A Crisis in Leadership” asserted that the Navy’s leadership was failing, citing the number of officers relieved or fired in the previous year, 2010. While the article did not specifically use the term “toxic leadership,” the piece was fairly direct in dissecting examples of naval officer leadership failures and talked about the need for increased discipline in the ranks. It referenced news stories from the Navy Times that covered officers’ relief from command. The reasons cited, while fairly general, included numerous instances of “improper” or “inappropriate” behavior, “inappropriate relationships with subordinates,” adultery, “conduct unbecoming an officer,” “dereliction of duty” and various other charges that resulted in superior commanders expressing a “loss of confidence” in an officer’s ability to command.

Mullen’s comments were designed to serve as a precursor to an upcoming conference at the National Defense University on the topic “The Profession of Arms.” But by Sunday afternoon that established narrative thread of careful introspection had already frayed. Breaking news stories from Norfolk, Virginia, focused on Navy Captain Owen Honors, whose risqué, homophobic and crude videos, produced while he was the executive officer of the USS Enterprise, were raging on social media sites and provoking strong reaction from all sides. To its credit, the Navy reacted quickly, even over the New Year’s holiday, suspending Honors from command and later relieving him. But the stage was set for public debate not only on the topic of toxic leadership but also on the Profession of Arms.

Issues with senior commanders’ ethics and lapses in judgment were not confined to the Navy. Perhaps one of the most visible cases involved Army General Stanley McChrystal, fired by President Obama in the wake of a Rolling Stone magazine exposé. A number of other Army commanders were either suspended or relieved in 2010 and 2011, even as U.S. Army Training and Doctrine Command’s (TRADOC’s) study on the Profession of Arms was proceeding under the guidance of then commander General Martin E. Dempsey. The review was designed to answer three critical questions:

  •  What does it mean for the Army to be a Profession of Arms?
  •  What does it mean to be a Professional Soldier?
  •  After nine years of war, how are we as individual professionals and as a profession meeting these aspirations?

For the Army’s Judge Advocate General’s (JAG) Corps these questions had been garnering increased attention for some time. As military justice professionals, as ethics advisors to commanders and as commanders themselves, military attorneys have extensive professional responsibilities in supporting and maintaining the military ethic and in the teaching and enforcement of the values and ethics of the military profession. While additional questions in the survey addressed the roles and responsibilities of officers, noncommissioned officers (NCOs), warrant officers, civilians and retired Army members, one critical community of interest was conspicuously absent.

What are the roles and responsibilities of the JAG Corps (Soldier/lawyer) in supporting and sustaining the Profession of Arms? The JAG Corps has a particular interest and a very specific professional and moral responsibility in this area and its members (attorneys, paralegals and legal administrators) are involved in all aspects of promoting, supporting and defending good order and discipline—all while providing ethical advice to commanders—and in maintaining a functioning and fair military justice system.

While the study progressed and Soldiers participated in online surveys and questionnaires, some Army commanders continued to stumble very publicly, many suspended or relieved for the same reasons as those ascribed to departing Navy leaders: poor command climate, a superior’s “loss of confidence,” abuse of subordinates, adultery and a plethora of others. A number of these leadership issues drew a great deal of media attention, from the realm of military-related news sources such as The Army Times and The Stars and Stripes, to mainstream civilian news coverage. These appeared in a particularly bad light as the media juxtaposed the espoused values of the institution with those criminal acts of individuals that appeared not only the most heinous but also the most diametrically opposed to the values of the Army as an institution and as a values-based profession. Even so, annual polls reveal the American public continues to rank the military as the most respected institution in the country, as they have since 2008. This element of trust between the Soldier and the nation must be preserved. 

In a memo to the Chairman of the Joint Chiefs of Staff, Secretary of Defense Leon Panetta wrote,

As has happened recently, when lapses occur, they have the potential to erode public confidence in our leadership and in our system for the enforcement of high ethical standards. Worse, they can be detrimental to the execution of our mission to defend the American people.

This emphasis on values is not new. Values and the adherence to a simple oath of allegiance have been the hallmark of the profession since its inception. This renewed focus is a periodic check and one that is necessary to ensure the basics continue to receive both necessary attention and respect, from the leadership 3 at the highest ranks to the newest noncommissioned officer. Over 30 years ago Sergeant Major of the Army William A. Connelly said,

I don’t know what possesses a professional who has been around for five, ten or 20 years to turn his or her back on a deficiency. The first tenet of our behavior as professionals must be never to do this.

Throughout 2011 and into 2012, it seemed that the ranks of those involved continued to spiral higher and the charges became more serious, the punishments more severe. At all levels it almost appeared as though escalating instances of high-risk behavior and, in some cases illegal and criminal acts, were increasing. In fact, allegations of misconduct by senior Department of Defense (DoD) officials have increased by about 47 percent since 2007, leading the DoD Inspector General’s office to increase staffing just to keep up with the case load.

At one point the Army Reserve Command sent its commanders a PowerPoint® briefing detailing more than 40 cases of Temporary Change of Station (TCS) travel fraud and encouraged commanders to discuss the cases with Soldiers and display the results on unit bulletin boards. The summaries detailed convictions by rank (ranging from sergeant first class to colonel), the dollar amount of the fraud and the punishment. Yet despite these warnings and vigorous enforcement, problems across the Army with contract and travel fraud continued, even as scrutiny increased. When then General William “Kip” Ward, the first commander of U.S. Africa Command, was recognized at a retirement ceremony at Fort Myer, Virginia, in August 2011, a DoD investigation into his official travel was already underway. The DoD Inspector General’s 17-month investigation resulted in findings that Ward conducted official travel for primarily personal reasons, misused military aircraft and abused his position. On 13 November 2012, Secretary Panetta demoted Ward to the rank of lieutenant general and ordered him to repay the government $82,000 for the unjustified expenses.

Instances of “stolen valor” continued to garner media coverage as well. Command Sergeant Major Stoney N. Crump, former Command Sergeant Major at Walter Reed Army Medical Center, was fired for falsifying his service record and wearing unauthorized awards. He was sentenced to six months’ imprisonment and a demotion to staff sergeant. Army Reserve Brigadier General Roger Duff became only the second general officer to be court-martialed in recent times when he pled guilty in June 2012 to seven charges of wearing unauthorized badges, awards or ribbons. A military judge sentenced him dismissal on 1 October; the ruling was final as of 16 October. This case drew very little public interest and only limited coverage, although the lapses in judgment, blatant disregard for values and implications for fracturing the image of general officers were breathtaking.

Cases of sexual harassment and assault gained a great deal of public and media attention in 2011 and 2012 as lawsuits continued to be filed against DoD and more cases came to light. The independently produced documentary film “The Invisible War” served to highlight the issue to the general public and encourage further interest, including congressional scrutiny, even as victims continued to come forward. The highestranking currently serving officer accused of sexual misconduct to date is Brigadier General Jeffrey Sinclair, suspended from his position as the 82d Airborne Division’s Deputy Commanding General in May 2012. Sinclair is facing charges of forceful sodomy, wrongful sexual conduct, possession of pornography while deployed and several lesser charges.

Interest in this case paled in comparison to the storm of national media coverage unleashed when retired General David Petraeus suddenly resigned as CIA Director, just days after the presidential election. In the story’s initial days, coverage was both pervasive and explosive, reminiscent of the New Year’s 2011 media storm that brought down Captain Owen Honors. Yet the Petraeus case dominated the national stage much longer, even as twists and turns continued to add new players and salacious details on a daily or sometimes even hourly basis. The fallout continues.

Within DoD, the focus on ethical training and education of senior officers has been growing. The Army has also focused on training and education across the force and has remained dedicated to ensuring the military justice system is fully effective, both fair and responsive. In 2009, Military Police Soldiers began to receive specialized training in how to question and understand victims of sexual assault and the JAG Corps 4 began to focus on providing specially-trained prosecutors for these cases. The JAG Corps added 15 specialvictim prosecutors in 2009, along with eight more prosecutors to specialize in the investigation and litigation of cases involving sexual misconduct, domestic abuse and child abuse.

But beyond the conduct of individual senior leaders themselves, the primary focus for the Army’s senior leadership has been on the overall mental health of the force, Soldier fitness and resilience under continued and long-term stress. The rising suicide rate was the primary issue that first highlighted the problems associated with high-risk behaviors. The resulting scrutiny exposed a number of underlying issues related to atrophying discipline, a perceived lack of front-line leadership and the issue of gaps in policies and programs that were designed to improve accountability.

Legal professionals are involved in all aspects of the issues confronting a rapidly changing force. Military attorneys are charged with maintaining high levels of competency in six areas: military justice, whether serving as a prosecutor, defense attorney or judge; legal assistance; contract and fiscal law; claims; administrative law; international law; and operational law. Operational law includes the complexities of providing legal advice to commanders on domestic, foreign and international laws that affect the conduct of operations. All are critical to the Army as a profession and a values-based institution as it supports, defends and represents the interests of the United States of America. As A. Edward Major recently commented in Military Review, a commander’s reliance on legal advice is increasing: “Here, the legal profession and the profession of arms meet, evolving as to how to most effectively work together.”