Years ago, when the rating scheme for judge advocates changed from being rated within the Office of the Staff Judge Advocate (the other senior lawyers) to being rated by the commanders (who are the customers that are receiving the legal advice), I did not realize the danger. I did not know enough to be concerned.
Now, I know more. And I am more than concerned. In many cases, I am appalled.
The rating scheme of commanders over legal advisors has created a propensity to produce and reproduce “Yes men” (and women) for military “justice.”
I vividly recall an Article 6 visit in the spring of 2006. One of the new majors in the office asked for some reassurance about the new brigade embedded rating scheme. The then number two general of the Army JAG Corps berated the well-intentioned major. So many years later I came to understand the concern the major was trying to ask about.
Not all people have the same ability to give their independent judgment when their rating and therefore their future is potentially in the balance.
There are many occasions when a legal advisor needs to be able to tell the commander they are tasked with advising that what the commander wants to do or is considering doing is not a good idea.
There is a huge chasm of the choices that a commander has in dealing with a given situation.
Some believe it is the legal advisor’s job to merely tell a commander what the range of choices is. Others, like me, feel there is a step further – to advise that commander what should be done, what justice looks like, and what fairness should dictate. And when that commander is leaning toward a choice that is not fair minded, from my standpoint that legal advisor needs to be able to tell the commander their opinion. It is 100% the decision of the commander, but it is 100% the legal advisor’s responsibility to ensure that the commander considers all sides.
A dear friend recently reminded me that when I was his trial counsel (legal advisor) when he was a company commander (back in 2005)… [he is now a full Colonel, so I feel pretty old now], I screamed at him from time to time. Naturally, I don’t recall it that way… I recall giving him my advice. Yes, we were both captains so perhaps that made me more willing to be spirited when I let him know I felt like he was veering off course. If he had been my rater, I know that I personally would have communicated my position without regard to the rating scheme (though perhaps less loudly). But I know that many would not.
In that same command, the commanding general would seek me out at the gym after work. He figured out that I headed to the gym for an hour at COB and then would return to my office. But he often caught me during that hour to ask me for what was “really going on.” Yes, you read that right. The commanding general did not think that his Staff Judge Advocate was giving him the straight poop. Guess who rated the Staff Judge Advocate? The Chief of Staff. And guess who was his Senior Rater? Yep, that’s right. The commanding general. So, he would come to find me – a mere captain – to ask me for my no BS answers.
Sometimes a legal advisor needs to be pretty bold. Sometimes a legal advisor needs to tell the commander bad news. Sometimes they need to be told no and often more importantly that they are taking a road they should not.
Fear that a rating will be impacted leads to legal advisors who think their job is to always help their commander get to yes. Remember that “Yes men,” spiel?
Caving to fears of where a person comes out in a rating is why there is even more issues in contemporary military justice than ever before. Since the advent of embedding judge advocates into the brigade where the lawyers are rated against battalion executive officers, and battalion operations officers, etc. there has become a culture (of course, there are exceptions) of ‘yes men’ and women.
I have had conversations with squadron and battalion commanders about issues in a case their legal advisor did not tell them. They appreciate my candor (which is backed up with evidence). I honestly believe that there are only a handful of commanders who want “yes men” and women. I genuinely think most commanders want the straight poop; they want to do the right thing.
Now, if we could only convince their lawyers to give it to them. For Military Justice
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