Mission creep in military lawyering.

• Author: Hillman, Elizabeth L.
• Position: Divided Loyalties: Professional Standards and Military Duty

1. INTRODUCTION

   When we study military lawyers as legal professionals we may be seeing too much of what they used to do--run a specialized criminal justice system--and not enough of what they do now: everything required to keep war-fighting legal. Prosecuting courts-martial and defending servicemembers accused of crime is a small part of the docket for twenty-first century judge advocates. (1) They also staff the military commission system--minted in 2001 and draining experienced litigators from other missions ever since--and provide legal assistance to servicemembers, but even those important tasks consume only a small fraction of military legal resources. (2) Most of military lawyering involves advising commanders on the legal dimensions of operations, sometimes termed "operational law." (3) And there is far more military lawyering than there used to be. Even in a period of military drawdown, the pace of growth in the legalization of military operations is likely to sustain an increasing corps of judge advocates. (4)

   Practicing operational law poses an under-appreciated challenge to the professional identity of the growing body of military lawyers. Judge advocates are a critical bulwark against the risk of the United States military and civilian forces abusing their authority and taking illegitimate actions. (5) Because of the expansive missions of the twenty-first century United States armed forces, operational law asks judge advocates to perform a vast range of roles that frequently overlap, diverge, and grow. (6) Many judge advocates during the last decade, by any standard of professional ethics, have acquitted themselves extraordinarily well in spite of (or perhaps because of) the challenges of managing "a dual professional identity as military officers and lawyers." (7) They have rejected calls to torture, stressed the importance of maintaining the rule of law in fighting terrorism, (8) zealously represented detainees at Guantanamo Bay, (9) and responsibly navigated tensions between military and state rules of ethics. (10) Yet their multiplying roles create conflicts at least as deep and vexing as the frequently studied issue of judge advocates defending detainees before military commissions. (11)

   Since the military became a permanent United States institution during the Cold War, the American armed forces have remained large and military operations common, even in times of relative peace. (12) The U.S. military does not demobilize and it does far more than fight. It occupies and pacifies; guards and builds; researches and studies; analyzes and teaches. (13) Lawyers in uniform support each of these disparate and sometimes conflicting missions. (14) Judge advocates run elections and approve bombing targets, train soldiers on the rules of engagement and prosecute them for violating the laws of war, write contracts for construction projects, secure courtrooms, set rules for detention facilities, compensate civilians injured by military operations, and perform a thousand other tasks unified only by the fact that it is the U.S. military that is undertaking them. (15)

   The potential impact of mission creep, or the "gradual, unauthorized broadening" of an original mission, (16) on the American military and its lawyers should not go unacknowledged. In military lawyering, mission creep is embedded in the widely accepted structural shift away from military justice into operational law. (17) The shift toward operational law began before 2001, but it has accelerated substantially during the last decade. (18) It has the potential to undermine the coherent norms that are at the heart of stable professional identities.

   When we ask our lawyers in uniform to practice not only military criminal law, but also every type of law in service of every conceivable military objective, we create an expanding set of duties that sprawl well beyond easily definable professional roots. The breadth of current U.S. military operations combined with the legalization of virtually every aspect of armed conflict has handed military lawyers an ethical challenge of daunting proportions. They risk being bound not by the rules that generally govern lawyers in their representation of clients but instead by what Norman Spaulding might term a "thick" identification with the military itself. (19) When a military lawyer has to do everything that the military needs--at an historical moment in which the United States asks the military to do everything--only the individual fortitude of judge advocates may prevent them from waging "lawfare," (20) in which law becomes not a brake on authority or respect for process, but instead a means of achieving a military goal.

2. IMAGE

   Before sketching what military lawyers do and suggesting the ethical challenges of that canvas, we ought to have some sense of who judge advocates are and how they are perceived within the legal profession. The public image of military lawyers tends toward the sterling, and not only because of the handsome actors of recent and long-running television hits starting judge advocates and military criminal investigators. (21) Military lawyers have been celebrated of late in both American popular culture and legal scholarship because of their role in upholding humanity in warfare amidst the ethical failures of other government attorneys.

   Since 2001, judge advocates have stood up, sometimes to their own professional detriment, against legal opinions that threatened to undermine the rule of law. They rejected the torture of detainees, (22) limited the targets of bombs, (23) and defended those detained in the war against terrorism. (24) They did not concur, and were barely consulted, in the creation of the much-criticized military commissions at Guantanamo Bay. (25) Their demonstrated commitment to respecting the constraints imposed by the laws of war serves as an historical counterpoint to the heedlessness of lawyers of the executive branch under the Bush Administration. (26) One of those lawyers, John Yoo, co-authored an article with coast guard lawyer Glenn Sulmasy that suggested the restraint counseled by judge advocates undermined essential civil-military relations in the United States. (27)

   Institutional assessments of the judge advocate generals' corps suggest that military lawyers were better equipped by training and institutional placement to withstand the legal detours taken by lawyers in the political branches. Analyses rooted in organizational culture stress the way in which military values and the integration of military lawyers into operational units (or "co-mingling of accountability agents and operational employees") enabled judge advocates to object to orders that they considered unlawful and persuade others to comply with their decisions. (28) Retired general Charles Dunlap echoes many uniformed lawyers in lauding the importance of military training in the success of judge advocates: "JAGs, like all military officers, are trained to think strategically, and thinking strategically is essential to successfully waging war within the Constitution." (29) Others go so far as to suggest that military officers, despite being part of a culture that mandates obedience and deep respect for hierarchy, are expected to question the decisions of others (30) and that the decentralized nature of military operations encourages the occasional departure from precedent, thus avoiding the perpetuation of error. (31) Overall, the scholarly response to the post 9/11 actions of judge advocates has portrayed them as agile and principled in adapting to a remarkably difficult legal climate. (32)

   The image of judge advocates did not escape the first decade of the United States' war against terror completely untarnished, however. (33) The 2005 Haditha massacre, in which twenty-four Iraqis were killed by U.S. Marines, was marred not only by the extra-legal violence that led to so many civilian deaths, but by a cover-up initiated by commanding officers and a failure to convict any of the officers involved, including a Marine judge advocate, because of unlawful command influence during the aftermath. (34) In 2004, the world was shocked by the photographs of sexualized abuse and torture emerging from the U.S military prison at Abu Ghraib. (35) Military lawyers participated in the ensuing investigations and prosecutions and were not directly blamed for creating the climate that led to such egregious misconduct, despite the lack of effective oversight that made the detention facility such a free-for-all. In fact, some asserted that had judge advocates' advice not been dismissed by...