Articles: RULES OF ENGAGEMENT: MILITARY LAW & JUSTICE
I was honored when asked to write an article on our Nation’s Military Law and Justice system, as I am a former commissioned officer and attorney with the United States Navy. My goal in writing this article is to provide an brief overview of the various practice areas attorneys in the military are responsible for, and provide some insight into the execution of those responsibilities. By no means is this an exhaustive list of duties military attorneys are responsible to complete, but these are the main areas military attorneys are assigned.
The United States Military comprises of five branches including the: U.S. Army, U.S. Navy, U.S. Air Force, U.S. Marines and U.S. Coast Guard. Each of the branches have licensed attorneys who are commissioned officers in their respective service branches. Attorneys in the military are known as Judge Advocates, and are assigned under the Judge Advocate General’s Corps, or JAGC for short, for each of the branches.
In recent years, Hollywood has portrayed Judge Advocates in movies and television shows with a much higher degree of drama than what is reality as in most cases. Hollywood exaggerates the truth to make the show more interesting to a wider audience. In fact, much of what Judge Advocates do every day is not all that different from their civilian counterparts. Much of the difference lies in the mission of the particular military branch of service, or the unit, and the role the Judge Advocate plays in helping to accomplish that mission. For example, the mission of the U.S. Marines is different from the U.S. Air Force; and, therefore, Judge Advocates would need to accommodate their client differently.
BECOMING A JUDGE ADVOCATE
Each branch of service differs somewhat in how a licensed attorney becomes a Judge Advocate. The U.S. Marines are the most demanding in that the Judge Advocate must go through the same training and qualifications as other officers in the Marines. The other branches offer a program of condensed military training and rapid promotion in order to get the new Judge Advocate out into the field or fleet as soon as possible.
Once the initial military training has been accomplished, all Judge Advocates attend Judge Advocate legal training at one of three schools. Army Judge Advocates attend the Army JAG school in Charlottesville, VA. The Air Force Judge Advocate school in Montgomery, AL. Finally, the Naval Justice School located in Newport, RI which serves the Navy, Marines and Coast Guard.
Attendance at one of the branch JAG schools is mandatory and challenging. It comprises a semester’s worth of work in approximately 3 months of time. Classes are taught by other Judge Advocates as well as civilian attorneys who bring practice insight into the subjects they teach so as to give the new Judge Advocates “real world” experiences they may come into contact with once they are out in the field or fleet.
The subjects taught include: Military (Criminal) Justice, Family Law, Consumer Law, Law of War, Contracts and Torts just to name a few. Special emphasis is placed on trial advocacy where each Judge Advocate participates in several mock trials, moot court and trial workshops. For new attorneys, this is a great opportunity to learn advocacy skills before having to practice on real clients. The trial practice is rigorous and the problems the students are given are based on real military law issues or cases so as to give the Judge Advocate a sense of the complexity and nature of military law.
Military Law comprises many different areas of the law, and law school generally does not prepare an attorney to handle the vast nature of all of the areas the Judge Advocate will be confronted once in the field or fleet. Judge Advocate school is that bridge from the civilian world to the military which gives a basis to the attorney.
Once the initial military law training has concluded, the Judge Advocate is then assigned to a military base to begin their career. This initial assignment can be anywhere in the world, but is most often at a base where there are other senior Judge Advocates who are available for mentoring and furthering the education of the new Judge Advocate. We call this initial assignment “going out to the field or fleet” depending on the branch of service.
AREAS OF PRACTICE FOR JUDGE ADVOCATES
Practicing law in the military is a diverse as law can be. First, the Judge Advocate can be assigned anywhere throughout the world. Judge Advocates can be assigned to combat units with combat missions. They can be assigned to fleet ships/submarines, air craft units, infantry or other combat units. Judge Advocates can be assigned to prosecute or defend service members who are accused of any number of crimes. They can be assigned as legal advisors to commanders of various types and assist with making vital decisions in mission accomplishment.
Every area the U.S. Military serves potentially could have a Judge Advocate assigned to offer help guidance to the unit. Judge Advocates have been called on to help new democracies write constitutions and laws. They have been tasked with drafting rules of engagement for combat units or ship captains, and often are called to enforce those rules when broken. Judge Advocates are often tasked with advising commanders what the legal ramifications of decisions are world-wide, and serve as liaisons between local governments and commanders in the field or fleet. And yes, Judge Advocates are sometimes required to go into harm’s way just like any other member of the military when the mission requires such action. Therefore, Judge Advocates serve in our Nation’s wars and conflicts such as Iraq and Afghanistan.
Currently, there are Judge Advocates serving as both prosecutors and criminal defense counsel for the detainees charged with war crimes stemming from the World Trade Center destruction. These combatants are considered military personnel and therefore subject to prosecution under military law rather than civilian laws and courts. Therefore, the military must prosecute these individuals under the Uniform Code of Military Justice in a courts-martial setting.
UNIFORM CODE OF MILITARY JUSTICE
The primary source of statutory military law is the Uniform Code of Military Justice (or “UCMJ”) and applies to all members of the all military branches from the Chairman of the Joint Chiefs to the new recruit stepping off the bus at boot camp. It is the foundation of military conduct and personal jurisdiction is worldwide. It applies to the service member both on and off duty, and in cases of desertion, jurisdiction continues until the service member is brought back into the military to stand charge.
The UCMJ proscribes all of the crimes and punishments a service member is subject to if found in violation of a particular code section. Judge Advocates are primarily responsible for the enforcement of the UCMJ after a crime has been detected and criminal charges are brought against a service member. The UCMJ generally breaks crimes into two main categories, general courts-martial for typical felony level crimes, and special courts-martial for crimes typically considered to be misdemeanors.
The military justice system mirrors the civilian criminal justice system in that it begins with the detection of a crime and accusing a suspected service member of committing that crime. Each of the service branches have their own law enforcement agencies tasked with the duty of investigating crime committed by service members. Just as civilian law enforcement agencies detect crimes through active investigations, military law enforcement gathers evidence of crimes, develops probable cause for search and arrest warrants, makes arrests of suspects and assists prosecutors in their cases.
Once an arrest has been made, the military justice system then differs in the leveling formal charges against a particular service member. The unit commander has the authority to charge the suspected service member with a misdemeanor level crime and convene a special courts-martial for the prosecution of that crime.
If the charge is more serious felony level where a general courts-martial would be appropriate, a general or admiral must convene a general courts-martial with the advice of an Judge Advocate who held a UCMJ Article 32 hearing, which amounts to a one-person grand jury. A hearing as to the facts and circumstances of the charge is held in order to advise the convening authority whether a general courts-martial is warranted in a particular case.
Once an accused service member has been formally charged with a crime, a Judge Advocate is assigned to represent the accused for purposes of the trial. Accused service members are granted greater rights than those in civilian courts due to the perceived inherent unfairness of military courts. For example, each service member is granted a no cost Judge Advocate to represent them, but the accused can hire a private lawyer and keep his court appointed lawyer. In some circumstances, the accused is allowed a second Judge Advocate attorney and again can keep both his private and assigned Judge Advocate; however, for practical purposes this rarely happens.
Military courts have been established by Congress and are set up by each branch of service covering certain geographical areas. Judges are all Judge Advocates appointed by the various Judge Advocate Generals to the bench for particular lengths of time, and each judge receives additional training at national judges’ school along with their civilian counterparts. Being a military judge is a very prestigious position within the military and no matter the military rank of the judge, they are afforded all judicial respect as any judge in our civilian courts. In a courts-martial, military judges can accept pleas of guilty, enforce pretrial agreements between the prosecution and defense, rule on all motions and preside over jury trials and sentence convicted service members.
If the accused service member pleads not guilty and elects to have a jury trial, the same authority who convened the courts-martial submits names of officers and senior enlisted personnel for jury duty. A jury will be picked from this pool who will decide guilt and recommend a punishment if the verdict is guilty. The senior most person, or highest in rank, on the jury panel is the president, or foreperson, and delivers the verdict to the court upon conclusion of the trial.
Like civilian trials, the accused is presumed innocent, has the right to remain silent and can cross examine all witnesses. They have the right to present evidence should they choose, but are under no obligation to do so.
Again, because of the perceived inherent unfairness of the courts-martial system, great pains are taken to insure the accused rights are strictly guarded, much more so than its civilian counterpart. This is no more apparent than during jury deliberations. Each juror has his or her own vote for guilt, but the perception is a higher ranking member of the jury might try to unduly influence a lower ranking member in making a particular decision. Or, in the case of a military judge who is of a lesser rank than a particular jury member, that juror might not wish to accept the ruling of the judge or abide by the judge’s orders during trial. Military trial judges are particularly aware of these issues and have the authority to deal with any unfairness to the accused. Overall, the courts-martial system is equally aware of the fairness issues, and the military courts of appeal are also there to catch any such issues of unfairness.
Finally, the military justice system has in place several levels of appeals for courts-martial. Beginning with the various service branches first level of appeal in the Court of Criminal Appeals, each convicted service member is assigned an appellate Judge Advocate to represent them at the appeal level. Appeal judges are Judge Advocates at this level and are appointed similarly to the trial military judges. If not satisfied with the decision of the first criminal appeal court, the service member can appeal to the United States Court of Criminal Appeals for the Armed Forces who have all civilian judges assigned to hear criminal cases from all of the branches. And, finally, the service member can petition the United States Supreme Court for leave to hear a particular case.
STAFF JUDGE ADVOCATE
Depending on the size of the command, most larger commands have a Judge Advocate assigned to the command as advisors to the commander on areas of law which have an impact on the command or its mission. These attorneys are known as Staff Judge Advocates (“SJA”)and act similarly to in-house counsel for officers and executives of corporations or counsel to governmental departments. Staff Judge Advocates can be assigned to general officers or admirals, field commanders or in any number of positions who support mission commanders and their troops. Because of the broad nature of the various service branches missions, it is challenging for Judge Advocates to learn the command’s mission in order to render advice to its members. For example, if the SJA is assigned to a combat unit in a forward area with the Army or Marines, the SJA would need to know the particular mission of the unit(s) and knowledge of the laws of the country the unit(s) is operating in order to render good and sound advice to the commander.
In areas concerning flight operations, the SJA would need certain aircraft knowledge in order to advise a wing commander if certain actions are legal. The same holds true for SJA assigned to naval war ships and advising group commanders of the legality of pursuing enemy combatants in open waters verses waters claimed by another country. And the list goes on.
The SJA wears many hats and has to be flexible in looking at many areas of law including international law, law of the sea and air, laws and treaties of other countries. The one constant in a SJA’s life is the fact that no two days are alike. A new day brings new problems which must have answers that are well grounded in law so the commander has the assurance any particular action is lawful.
In addition, with those commands who employ civilian Federal employees or have numbers of civilian contract employees, the SJA must deal with labor issues that arise including handling workers’ compensation, allegations of discrimination, labor union contracts and grievances.
For SJA assigned to bases both state side and overseas, their jobs are very much like a city attorney. Due to the particular size of a base, bases are often the size of cities with all of the same issues a city or county attorney would be tasked to handle. This often means acting a liaison with local governments in order to address problems shared by the base and the city.
As you might be able to tell, the SJA position has many parts but with the single objective of making sure the command and its commander has sound legal advice in order to successfully complete the mission.
LEGAL ASSISTANCE/FAMILY LAW
Service members and their families have all of the issues civilians’ experience. Just because a person enlisted in the military or is a commissioned officer does not mean he/she is immune from the myriad of problems civilian of life. In fact, this is often complicated by service members being deployed to other countries or on ships and cannot contact a lawyer in their community. Therefore, the JAGC provides legal assistance to service members and their families.
These services can include drafting wills/estate planning, powers of attorney, representing clients in divorce and child custody, representing clients in consumer matters and providing other legal help when our service members are in need.
Many states’ bars are now recognizing Judge Advocates and allowing them to represent military clients in civilian courts for certain cases. More can be done in this area as the need is great to help our service members in times when they are not available geographically to help themselves, or simply cannot do so because of the complexity of the issues. Judge Advocates who practice in the area of Legal Assistance receive personal and professional satisfaction from helping those who are serving our country.
Many of these cases involve consumer issues. Service members are particularly vulnerable to unscrupulous and predatory business practices, and they find themselves having agreed to contract with usury conditions often paying many more times the value of a product or service than others would pay. It is quite common for service members to buy items with incredibly high, and sometimes illegal, interest rates on credit. Or be the victim of scams where they purchase goods that are of very poor quality. The area where this seems to be greatest is in the used car business where cars that have been damaged or totaled are shipped to areas with military bases and sold for many times the actual value at ridiculous prices and terms. Judge Advocates who practice legal assistance and consumer affairs are very effective in bringing these practices to light and providing the service member with relief from financial hardship.
CONTRACTS
“The army travels on its stomach” is an old adage that depicts the enormous logistical system the United States Military has in place to not only feed and clothe its service members, but supply all of the needs of the military. These needs are all based on contracts with civilian providers who sell the military all of its equipment and supplies. Everything from pens and “sticky notes” to complex aircraft systems, to ships and submarines, to missile systems, to satellites, to parts for all of the equipment, etc. all must be purchased, received, transported, accounted and used according to contracts. These contracts are reviewed by Judge Advocates who insure the military is getting what they bargained for and receive the products and services it has paid.
Judge Advocates play a crucial role in making sure the government gets what it is paying for and needs. Must like their civilian corporate counsel, Judge Advocates provide legal advice to those making logistical decisions in the purchase and movement of goods and services. This is an enormous job when combining all five branches of the military. However, Judge Advocates know that their client must have the exact items or services contracted for in order to carry out a particular mission and the very lives of the service members depend on receiving all the necessary equipment needed for a successful mission.
CONCLUSION
As I started this article, I am honored to be asked to write an article on a little known area of the practice of law, military law. Hopefully as this article has explained how Judge Advocates play a crucial role in our military and the success our military enjoys. As in any organization or government, the law sets forth the framework from which the organization or government goes about conducting its business. The same holds true for our military , the 1.4 million members of our Armed Services rely heavily on the Judge Advocate General’s Corps and the attorneys who are assigned to the various Corps for its legal advice and service.
One of my greatest professional privileges was to serve our country in the Judge Advocate General’s Corps, and to be a part of the success of the greatest military in history.
Published Articles in: Friendly Passages, January 2012
Article Written By:
EIGHMIE LAW FIRM, P.A.
Hugh J. Eighmie, II
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