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Advising the Ethical Playing Field:

 

The Confluence of Profession, Ethics, and Principled Counsel

 
 
   
   
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(Credit: istockphoto.com/sodafish)

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[E]thics seem to serve as both the first line of defense in maintaining order and the last line of defense in preserving honor. Ethics also prove difficult to teach, because instilling an idea in someone that they must subsume their own identity into something larger and more important than themselves is a task to which not all are equal.1

The concept of a profession is rooted in a field of expert knowledge coupled with the trust society instills in the profession in exchange for internal regulation and dedication toward supporting the common good.2 A profession is also a specialized functional group with binding characteristics related to expertise, responsibility, and corporateness.3 From the junior enlisted members to senior officers, all members of today’s United States armed forces are members of a profession; and, as such, must take their professional responsibility to uphold the public trust seriously.4

A 2015 monograph published by the Strategic Studies Institute and U.S. Army War College entitled Lying to Ourselves: Dishonesty in the Army Profession sent shock waves through the Army officer corps.5 The monograph’s premise is that Army officers have become ethically numb after repeated exposure to overwhelming demands that cause them to put their honor on the line to maneuver Army bureaucracy.6 The monograph posits that the result of an Army required to pick which standards to actually follow—and which standards to simply lie about following—is a culture of dishonesty in the U.S. Army and, likely, across the U.S. military.7 Some might balk at an assertion that overly burdensome administrative requirements have eroded the Army’s warrior ethos, but the article highlights the particularly challenging ethical environment that the armed forces present.8 Based on the monograph’s thesis, we must ask, “Are judge advocates susceptible to the same ethical challenges that could result in ethical dilution?”9 And, if not, why; and what can judge advocates offer the Army to curb ethical dilemmas?

Judge advocates can effectively navigate an arguably ethically faded Army bureaucracy by the professional application of principled counsel.10 Principled counsel infuses legal advice with the virtues of honor and integrity.11 Though difficult, the Army charges judge advocates with providing ethical counsel in an environment riddled with documented systemic untruthfulness and internal pressure.12 The nature of their dual profession as well as their doctrinal mission makes judge advocates the ideal moderators to teach ethical decision making and to influence their Army client when and where most needed. The tipping point between decisions best for the Army bureaucracy and decisions that stay the ethical midfield reside with commanders making daily choices impacting the climate and culture of the Army.13 As legal advisors, judge advocates enjoy advantageous placement to coach and mentor commanders through high-stakes decisions on the ethical playing field.

As a demonstration of where judge advocates can assert their well-placed influence to overcome a potential ethical quandary—and provide value to our Army client through the application of principled counsel, recent newsworthy events are highlighted in the first section of this article. The next section provides a discussion of what it means to be a professional, how the Army views itself in the spectrum of professionalism, and how the Judge Advocate General’s (JAG) Corps can claim to be dual professionals. Next is an accounting of the sources of ethical authorities obligating judge advocates and how those authorities make the JAG Corps both resilient to systemic ethics breakdowns and qualified to coach the ethical playing field. Finally, by transitioning to doctrine, this article reviews the ethics practices indoctrinated in the Army (starting with Army Doctrine Publication (ADP) 6-22, The Army Leadership and the Profession) and then explain why judge advocates are well positioned to positively influence Army leaders making ethically high-risk decisions.14

Implications of Ethically High-Risk Decision Making

In the monograph Lying to Ourselves: Dishonesty in the Army Profession, the authors posit that recent ethical dilution in the Army is due to bureaucratic pressure inducing officers to lie about the completion of routine tasks.15 If commanders are willing and able to lie about mandatory requirements involved in the Army Force Generation process or the quarterly sexual assault prevention training, they are setting themselves up for the slippery slope of lying about the non-routine.16 For example, readers of this article may personally or professionally relate to the proposition of not answering the full truth on the amount of rest they will receive when filling out a Travel Risk Planning System (TRiPS) report.17 The possibility of “pencil-whipping” the dates for periodic counseling requirements on an Officer Evaluation Report (OER)/Noncommissioned OER Support Form might sound familiar.18 Or even “checking the block” on the initiation of a multi-source assessment and feedback (MSAF) 360 process for an OER Support Form because the website would not work.19 Likely, no one will ever know that these low-level dishonest acts took place, and there will be no tangible repercussions. But there is no way to measure what low-level dishonesty does to an individual’s propensity toward ethical decision-making on future high-risk decisions.

Initial reports of the 2017 mission in Niger—which left four U.S. service members dead—described that, due to inaccurate concept of the operations paperwork, junior and mid-level leaders incorrectly routed approval for the mission to a lower level authority than required.20 The original concept of the operations appeared to be routine reconnaissance; but, the true nature of the mission was to hunt a known Islamic State leader.21 An investigation found “[t]he paperwork that was submitted, the packet was identical to a previous [concept of operations]…[s]o it was done hastily, and there was a lack of attention to detail…[i]t wasn’t a deliberate intent to deceive.”22 Whether intentional or a lack of attention to detail was to blame, high-stakes errors like these are the costs of ethical fading warned about by the authors of Lying to Ourselves.23 A similar situation described in the monograph is when the administrative requirements imposed on junior leaders in a combat zone drove officers to cut corners on routine products, the result of which could have serious consequences.24 Most Army officers reading the news of the incorrectly routed concept of operations in Niger, leading to a lower level of approval authority, probably made their own assumptions about whether this act was done in error or as a routine way to side-step bureaucracy. The investigation found that there was no intent to deceive, but the fact that those reading the reports make an assumption toward the all-too-commonplace deception, is telling.

In 2012, a YouTube video surfaced showing four Marine snipers urinating on the bodies of dead Taliban fighters during a 2011 deployment to Afghanistan.25 An academic study of the incident found that the Marines associated with the urination were in a condition of “ethical blindness,” as they “accepted the behavior as normal: urinating on dead enemies was not a desecration, or a war crime, but a strong victory statement made against an extremely cruel enemy.”26 Ethical blindness occurs “when an individual becomes unable to see the ethical dimension of the decision-making process.”27 Both the investigation and academic study following this event found that the unit to which these Marines were assigned implemented a training program that incorporated ethics instruction in every aspect of their preparation, to include two hours per week of dedicated ethical coaching, leading up to the deployment.28 The Marines involved in this situation were, arguably, the most ethically trained unit to deploy during the Global War on Terror.29

Even with the system of ethical training the Marines endured, they did not avoid poor ethical decision-making. With DoD and Army regulations falling short of requiring ongoing ethical training at the unit level, and falling short of providing a program of study, judge advocates should shoulder the role of guiding units and commanders through areas of high-risk ethical decision making. This application of principled counsel should inform every judge advocate-to-commander relationship. In addition, judge advocates should facilitate this mindset and application at the unit level in preparation for high-risk operations like domestic assistance, humanitarian assistance, and direct action intervention—much the same way judge advocates brief rules of engagement or the code of conduct. To understand the trust and responsibility the public instills in the profession of arms and why it matters in the above examples, an examination of what it means to be a profession and a professional is required.

The Military as a Profession

The concept of a profession is critical because of the trust it denotes between professionals and society. The definition of a profession is “a vocation requiring knowledge of some department of learning or science.”30 Samuel P. Huntington’s 1957 book The Soldier and the State provides the groundwork for how and why modern military academics view the U.S. military, and other western militaries, as professions.31 Huntington defines professionalism through the three concepts of “expertise, responsibility, and corporateness.”32 Through his examination of the American military in the 1950s, Huntington declares, “The modern officer corps is a professional body and the modern military officer a professional man.”33

What Does It Mean to Be a Professional?

Academics have traditionally classified the term “profession” as associated with the law, clergy, and medicine.34 Adopted from the tomes of Huntington, discussed above, Morris Janowitz’s The Professional Soldier and Sir John W. Hackett’s Profession of Arms contain the modern analysis of how the military meets the definition of, and qualifies as, a profession.35 Modern scholars mostly agree on some variation of the definition of a profession involving the following criteria: “(1) a body of expert knowledge on which basis (2) the public accords certain privileges in exchange for (3) an understanding that the members of the profession will self-regulate and (4) operate for the common or public good.”36 Following that definition, calling the U.S. military a profession requires that members of the military hold a body of expert skills and knowledge, that they distinguish themselves from the public in some meaningful way, that they follow a code or have a way to internally regulate their conduct, and that the execution of their duties benefits the public or common good they serve.

The perceived dual identity of the military as a bureaucracy sometimes obscures the professional nature of the military.37 Bureaucracies often produce organizations full of non-expert jobs, repetitive situations, close supervision, irrelevant worldview, and a focus on efficiency.38 Especially in times of peace, personnel draw-downs, and budget restrictions, the military can ebb toward the feel of a typical government bureaucracy.39 Maintaining a balance that favors the professional military over a bureaucracy is essential, especially when the overall goal is to allow the American public to enjoy the benefits of military discretion: allowing the development of expert knowledge related to combat that is capable of death and destruction, coupled with the required discipline, to be let loose among a population.40

How the U.S. Army Views Itself on the Spectrum of Professionalism

Former Chairman of the Joint Chiefs of Staff General (Ret.) Martin Dempsey sees our military as a profession granted by the American people and believes that more than just military officers fit the definition.41 Current Army doctrine puts forth as fact that the Army is a profession and being a member of the U.S. Army makes an individual a professional, regardless of whether that individual is an officer, an enlisted Soldier, or an Army Civilian.42

The Army definition of a professional focuses on the development of expertise, the earning and maintaining of trust with society, self-regulation, and professional ethics.43 The Army lists the military among the traditional professions of law, theology, and medicine.44 Foundational principles make clear the intent that the public not consider the Army a bureaucracy by articulating that professions, unlike mere routine and repetitive labor, create and work in the medium of expert knowledge.45 The Army sees itself as requiring expert problem solvers who are capable of operating on their own and in unpredictable environments. Army doctrine focuses on the Army ethic because its status as a profession generates from the unique grant of trust from the American people to carry out lethal force in the application of land power.46 Self-regulation of this ethic derives from encouraged moral principles in the form of the Army values47 enforced by the Uniform Code of Military Justice (UCMJ), Army regulations, and policies.48

The concept of “essential characteristics” indoctrinates the unique trust granted by the American people in the Army.49 Those characteristics are trust, honorable service, military expertise, stewardship, and esprit de corps.50 These guiding principles and characteristics advance General (Ret.) Dempsey’s argument that all members of the Army, not just officers, must be professionals because every member is required to be capable of independent decision making on an unpredictable battlefield.

The Judge Advocate Profession

Unlike the debate surrounding the treatment of the military as a profession, there is little question that those who practice law are members of a profession; this is due to the very nature and tradition surrounding the work.51 “The mission of the Judge Advocate General’s Corps (JAGC) is to develop, employ, and retain one team of proactive professionals, forged by the Warrior Ethos, who deliver principled counsel and mission focused legal services to the Army and the Nation.”52 The legal profession has a well-organized system of enforcing standards and ethics. Judge advocates have the benefit of being both lawyers and military officers; they are subject to both sets of professional obligations.

Dual Professionals

Concurrently comprised of legal professionals and Army officers, the JAG Corps certainly views itself as a dual profession.53 Without regard for the level of command a judge advocate is serving, the lawyer has numerous roles. They perform the normal functions of a government attorney as a counselor, advocate, and trusted advisor to their client, and are also “Soldiers, leaders, and subject matter experts in all of the core legal disciplines. In every aspect of their professional lives, judge advocates serve the Army and the Nation with their expertise, dedication, and selflessness.”54

The JAG Corps is a special branch of the United States Army constituted by 10 U.S.C. 3072 and is comprised of commissioned officers of the Regular Army.55 As Army officers, judge advocates are subject to the same requirements of professional conduct with which all Army officers must comply, including following the exemplary conduct statute, the UCMJ, Army regulations, and several echelons of policies.56 In order to be a judge advocate in the United States Army, an attorney must have graduated from an accredited law school and be admitted to the practice of law before the highest court of any State, Territory, Commonwealth, or the District of Columbia.57 Judge advocates must also be members in good standing of their bar—this is determined by their individual licensing authority.58 Additionally, at some point in their careers, judge advocates must swear to an oath to perform their duties faithfully.59

As discussed within the above sections, a settled aspect of a profession is self-regulation.60 Being a member of two different professions, the Army Judge Advocate General’s Corps is subject to myriad regulations, codes, and obligations. Keeping in mind how these regulations form a backbone that enables judge advocates to deliver principled counsel to their clients, the next section will illuminate what those obligations are.

Ethical Authorities Obligating Judge Advocates

In addition to the professional conduct rules for their applicable state bar associations, judge advocates are specifically subject to Army Regulation (AR) 27-26, Rules of Professional Conduct for Lawyers. These rules for professional conduct govern the ethical conduct of judge advocates practicing under the UCMJ, the Manual for Courts-Martial, or under the supervision of the four “Senior Counsels” as classified in AR 27-26.61 The rules found in AR 27-26 govern the professional and ethical conduct of “[a]ll Regular Army Judge Advocates with military occupation specialty (MOS) 27(A), regardless of whether serving in a legal MOS billet.”62 The preamble to AR 27-26 states, “An Army lawyer is a representative of clients, an officer of the legal system, an officer of the Federal Government, and a public citizen having special responsibility for the quality of justice and legal services provided to the Department of the Army and to individual clients.”63 As employees in the Department of Defense, and active duty regular military officers, judge advocates are subject to the Joint Ethics Regulation (JER).64 In fact, the rules for professional responsibility remind judge advocates of their obligations to the JER with respect to conflicts of interest, gifts to lawyers, and in communications concerning a lawyer’s services.65

The stated mission of the Army JAG Corps is to “[p]rovide principled counsel and premier legal services, as committed members and leaders in the legal and Army professions, in support of a ready, globally responsive, and regionally engaged Army.”66 The senior leadership of the JAG Corps makes a concerted effort to create a culture that fosters virtues and morals, with the intent to therefore produce principled counsel. The first policy memorandum for the current Judge Advocate General of the Army concerned professional responsibility.67 The memorandum specifically defines the expectation of “an unwavering commitment to the highest standards of ethical conduct…integrity and absolute compliance with established professional responsibility…to uphold honor and maintain the dignity of our profession of law.”68 The policy memorandum requires attorneys who fall within the purview of The Judge Advocate General to complete three hours of professional responsibility training each year, as well as mandating all non-lawyer personnel to complete one hour of training.69 This requirement is in addition to any state bar association continuing legal education requirements with which attorneys must comply to remain in good standing.

With this framework of ethical obligations for the Army’s legal advisors, the next step is to explore the program of ethical indoctrination and continuing education that other Army professionals receive. Through this review, this article identifies areas judge advocates can be particularly effective in providing counsel to commanders making ethically high-risk decisions and also makes recommendations on how best to enable principled decision-making.

Army Ethics Doctrine and Authorities

“And the military must deal virtuously with one of the greatest vices: killing human beings.”70 Despite doctrine rooting the Army to the ethical requirements expected of a profession, there is no comprehensive continuing ethics education training program. The next several subsections will provide a review of the ethics programs in the Army and identify areas for improvement.

Army Ethics Doctrine

Army Doctrine Publications 1 and 6-22 serve as the backbone of the Army’s view of applied ethics. The ADPs communicate the ethics vision and framework. With the Army being both a military department of the government and a profession, ADP 1 emphasizes trust among members of the Army and the special trust shared with the American people.71 Meanwhile ADP 6-22 is the source of explanation for the Army values of loyalty, duty, respect, selfless service, honor, integrity, and personal courage.72

While ADP 1 provides the framework for Army doctrine on ethics and values, ADP 6-22 provides the detailed implementing guidance. This publication provides the link between the Army values and the legal and moral ethical foundation of the Army profession.73 The Army ethic “is the set of enduring moral principles, values, beliefs, and laws that guide the Army profession and create the culture of trust essential to Army professionals in the conduct of missions, performance of duty, and all aspects of life.”74 One of the essential characteristics of the Army profession described by ADP 6-22 is stewardship of the profession.75 The doctrine describes stewardship in two ways. The first is a call for true professionals to police their own members,76 and the second—using context for stewardship—is the creation and implementation of professional development programs to advance expertise, apply ethics, and improve the institution.77 Although this Army doctrine does not provide the timing and curriculum, it implores senior Army leaders to “[s]trategic stewardship includes establishing the directives, policies, programs, and systems that provide for the purposeful development of people, resource management, and preparation for the future—while preserving the customs, courtesies, and traditions of the Army.”78

Army Ethics Training

The United States Military Academy at West Point and Reserve Officers’ Training Corps generally provide instruction on the Army values and ethics.79 Similarly, enlisted initial entry training provides training on the Army values. The Army regulation driving initial entry, commissioning, and recurring training requirements is AR 350-1, Army Training and Leader Development. The regulation broadcasts that “[a]ll training, education, and leader development actions occur within the Army culture, a culture which embraces values and ethics, the Warrior Ethos, standards, and enduring principles and imperatives.”80 Specifically, the regulation charges leaders to infuse the initial training of Soldiers and Army Civilians with core values, ethics reasoning, and the Soldier’s Creed or Army Civilian Corps Creed.81 Once a member of the Army completes the initial phases of training—and outside of an institutional training environment—the continuing requirements to talk about morals, virtues, or ethics vanishes.82 Furthermore, the regulation charges the Chaplain Corps with providing ethics and moral leadership training at Army schools.83 Table F-1 of AR 350-1 lists the required training, whether annually, biennially, ongoing, pre/post deployment, semiannually, or optionally.84 However, ethics training is not listed in this table. Training in ethics resides in Table F-2, other Requirements for selected personnel.85 Rather than listing an ethics training requirement, this table implores personnel to comply with ethics rules and regulations associated with the JER.86 Aside from initial entry training, ethics training requirements are only specifically tied to requirements of individuals who file either an Office of Government Ethics (OGE) Form 278 or an OGE Form 450.87 These filing requirements primarily apply to senior government officials or individuals required to file financial disclosure forms because of the specific requirements of their job.88 Unlike nearly all the other training topics listed, the regulation neither lists a reference authority nor a Headquarters, United States Department of the Army point of contact for ethics.89 The only specific cross-reference related to training is from the section related to noncommissioned officer professional development, which encourages seniors to coach their subordinates “to be totally committed to U.S. Army professional ethics, Warrior ethos, and the Soldier’s creed per doctrinal products (see ADP 6–22).”90

Army Leadership Ethics

Army Doctrine Publication 6-22, Army Leadership and the Profession, presents a chapter devoted to leadership by being an individual of personal character.91 This chapter lists the following concepts as integral to developing a leader’s character: Army Values, Warrior Ethos and Service Ethos, empathy, and discipline.92 The reference publication goes so far as to devote sections to discussing character and ethics, ethical reasoning, and ethical orders.93 For the first time, Army doctrine on ethics involves legal advisors by imploring a leader to seek legal counsel when confronted with a complex question surrounding the ethics of a military order.94 This advice seemingly contradicts the direction of AR 350-1, which puts the training of morals and ethical leadership in the hands of the Chaplain Corps.95 Ultimately, ADP 6-22 provides a foundation of concepts of which leaders should seek further development; but, it is not an authority providing a comprehensive program instructing ethics and principled decision making. In the hierarchy of authorities, when Army doctrine and regulations are silent on ethics training, the superior level of authority to consult is the the head of the government agency: the Department of Defense.

Advising the Ethical Playing Field

In AR 27-26, there is a clear reference and application to how a lawyer’s counsel can be useful beyond strict legal advice:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal and moral consequences of any proposed course of conduct with a client.96

Judge advocates are members of a commander’s personal and special staff.97 As a member of a commander’s personal staff, judge advocates have a special relationship where they are under the direct control of the commander and have direct access to them.98 By regulation, “[t]he commander and the staff judge advocate shall, at all times, communicate directly on matters relating to the administration of military justice, including, but not limited to, all legal matters affecting the morale, good order, and discipline of the command.”99 That relationship places the judge advocate in a unique and advantageous position to provide legal advice and to counsel commanders on moral and ethical decision making.

Although chaplains are also members of a commander’s personal staff, they are not as invested in the moral and ethical implications of the decisions being made by the command—most of which carry legal consequences. The role of the chaplain is to assist the commander “in providing for the free exercise of religion and religious, moral, and ethical leadership.”100 While true that some commanders may be more comfortable or more accustomed to talking through moral issues with a member of the clergy, it is the responsibility of judge advocates to form relationships with commanders that will allow the attorneys the chance to influence high-risk decision-making. The chaplain is not aware of all the laws and regulations in the Army and how they implicate ethical decision making.101 Judge advocates, on the other hand, are stakeholders in this decision-making because of their role on a staff. In the end, they are responsible for the administration of investigations and facilitating the command’s application of administrative and punitive consequences of inappropriate actions, command climate, and decision-making.

Except in specific limited roles, “an Army lawyer…represents the Department of the Army (or the executive agency to which assigned) acting through its authorized officials.”102 Despite the close advisory relationship judge advocates must form with commanders, under most circumstances, they are not forming a privileged or confidential attorney-client relationship with commanders; rather, they are forming the bond with the institutional Department of the Army as a client.103 This relationship, established by the rules of professional conduct, does not have a chilling effect on the ability of commander and judge advocate to have open, candid, and honest discussions.

Because judge advocates have an obligation to the Army, their clients allow them the opportunity to stay neutral and above the fray. In turn, the commander can rely on the judge advocate to give advice representative of the virtues of the larger organization, the Department of the Army.104 Further, judge advocates, who as Army officers are subject to the orders of their superiors, are protected by the rules of professional responsibility to thwart the influences commonly found in a military command and control-driven environment.105 A judge advocate is “expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client.”106

Conclusion

The revelations of Lying to Ourselves are shocking because the dishonesty cuts at the professional fabric of the armed forces woven by the trust instilled in the profession from the people of the United States. Even more than the majority of military officers, the special nature of the judge advocate’s position implies a professional backbone of regulations, policy, and culture that both require and enable judge advocates to act ethically in difficult situations.107 The Army calls upon its leaders to make ethically high-stakes decisions. Those leaders’ professional relationships with their judge advocates can help them navigate those waters. Army and professional doctrine place judge advocates in the unique position to give impactful advice and train the force on ethical decision-making. Lessons from breakdowns in ethical decision-making help develop a program of study and implementation where judge advocates provide value-added training on decision making to their clients and the force.

Judge advocates must navigate the challenges of an Army bureaucracy by practicing principled counsel. Infusing advice with the virtues of honor and integrity provides value to the Army client. Not only should judge advocates assert themselves when in their well-positioned advisor role, but they are also uniquely equipped to add ethical decision-making context to the Army’s warrior ethos.

To provide valuable input and principled counsel to their clients, judge advocates need not find themselves in a metaphorical David versus Goliath situation like Major General Thomas J. Romig, Colonel Willis Everett, and Captain Aubrey Daniels.108 The pressure and environment faced by our clients create an extreme and unenviable expectation to perform at a high level and accomplish the mission. As the Marine sniper urination incident shows, even the best training does not always overcome the circumstances that create ethical blindness.109 Judge advocates should take responsibility for developing awareness in decision-makers at their units by relying on academic articles like Lying to Ourselves and Casualties of Their Own Success; these provide examples of systemic ethical choices going wrong. As these situations indicate, when it comes to culture, leaders make impactful decisions at all echelons. Judge advocates have the professional makeup, the professional training, and the professional proximity to infuse ethics, virtues, and morals into the advice and training they provide to their Army client. TAL

 


MAJ Cohen is assigned to the Ethics, Legislation, and Government Information Practices Branch in the Administrative Law Division of the Office of The Judge Advocate General at the Pentagon.



Notes

1. Redefining the Modern Military: The Intersection of Profession and Ethics 5 (Nathan K. Finney & Tyrell O. Mayfield eds., 2018).

2. Pauline Shanks-Kaurin, Questioning Military Professionalism, in Redefining the Modern Military, supra note 1, at 9-10.

3. Samuel P. Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations 7-10 (Belknap Press rev. ed. 1981) (1959) [hereinafter Huntington]. The author defines corporateness as:

The members of a profession share a sense of organic unity and consciousness...[t]his collective sense has its origins in the lengthy discipline and training necessary for professional competence...the sense of unity manifests itself in a professional organization which formalizes and applies the standards of professional competence and establishes and enforces the standards of professional responsibility.

Id.

4. Martin E. Dempsey, America’s Military –A Profession of Arms White Paper 4 (2012) (“The distinction between ranks lies in our level of responsibility and degree of accountability. We share the common attributes of character, courage, competence, and commitment. We qualify as professionals through intensive training, education, and practical experience.”) [hereinafter Dempsey].

5. See generally Mark Thompson, Army: Too Many Regulations Lead to Too Many Lies, Time (Feb. 25, 2015), http://time.com/3722363/army-regulations-lying/; Kevin Lilley, Report: Army Officers Admit to (and Defend) Their Lying, Army Times (Feb. 19, 2015), https://www.armytimes.com/news/your-army/2015/02/19/report-army-officers-admit-to-and-defend-their-lying/; David Barno & Nora Bensahel, Lying to Ourselves: The Demise of Military Integrity, War on the Rocks (Mar. 10, 2015), https://warontherocks.com/2015/03/lying-to-ourselves-the-demise-of-military-integrity/.

6. Leonard Wong & Stephen J. Gerras, Lying to Ourselves: Dishonesty in the Army Profession 2 (Strategic Studies Institute (U.S.) et. al. eds. 2015) [hereinafter Wong & Gerras].

7. Id.

8. U.S. Dep’t of Army, Training Circular 3-21.75, The Warrior Ethos and Combat Skills para. 1-1 (13 Aug. 2013). The Army’s Warrior Ethos: “I will always place the mission first. I will never accept defeat. I will never quit. I will never leave a fallen comrade.” Id.

9. See Wong & Gerras, supra note 6, at 3

[T]he U.S. military is simultaneously a functioning organization and a practicing profession, it takes remarkable courage for a senior leader to acknowledge the gritty shortcomings and embarrassing frailties of the military as an organization in order to better the military as a profession. Such a discussion, however, is both essential and necessary for the health of the military profession.

Id.

10. TJAG and DJAG SENDS, Principled Counsel—Our Mandate as Dual Professionals, Vol. 40-16.

Principled Counsel is professional advice on law and policy grounded in the Army Ethic and enduring respect for the Rule of Law, effectively communicated with appropriate candor and moral courage, that influences informed decisions. Professional advice on law and policy is expert, timely, relevant, researched, and accurate advice that distinguishes legal advice from policy advice. Effectively communicated advice is clear and succinct content delivered with appropriate means, composure, and interpersonal tact that creates a shared understanding. Principled Counsel, therefore, should inform a client or commander’s exercise of discretion to apply sound judgment and enable the commander’s or client’s intent rather than obstruct it.

11. Lieutenant General Charles N. Pede, Principled Lawyering, Army Law., July–Aug. 2018 7, 8 (discussing timeless virtues).

12. Wong & Gerras, supra note 6.

13. Memorandum from Sec’y of Def. to All Dep’t of Def. Employees, subject: Ethical Standards for All Hands (4 Aug. 2017) (on file with author) (“I expect every member of the Department to play the ethical midfield. I need you to be aggressive and show initiative without running the ethical sidelines, where even one misstep will have you out of bounds.”).

14. U.S. Dep’t of Army, Doctrine Pub. 6-22, Army Leadership para. 3-1 (31 July. 2019) (C1, 25 Nov. 2019) [hereinafter ADP 6-22].

15. Wong & Gerras, supra note 6.

16. Id. at 5. “[I]n order to satisfy compliance with the surfeit of directed requirements from above, officers resort to evasion and deception. In other words, in the routine performance of their duties as leaders and commanders, U.S. Army officers lie.” Id. at 8.

17. Id. at 10.

18. Id. at 11.

19. Id. at 31.

20. General, Five Others Reprimanded in Connection With 2017 Niger Ambush that Left Four Dead, Stars and Stripes (Nov. 5, 2018), https://www.stripes.com/news/general-five-others-reprimanded-in-connection-with-2017-niger-ambush-that-left-four-dead-1.555288.

21. Dan Lamothe, Missy Ryan, & Alex Horton, Military Investigation of Niger Disaster Finds Numerous Failures in Planning, Wash. Post (May 10, 2018), https://www.washingtonpost.com/ world/national-security/military-investigation-of-niger-disaster-finds-numerous-failures-in-planning/ 2018/05/10/4a43cddc-4359-11e8-ad8f-27a8c409298b_story.html?noredirect=on&utm_term=.39e286df7ba6.

22. Tara Copp, Niger Investigation: What Went Wrong, What’s Being Done to Fix It, Army Times (May 10, 2018), https://www.armytimes.com/news/your-army/2018/05/10/niger-investigation-what-went-wrong-whats-being-done-to-fix-it/.

23. Wong & Gerras, supra note 6, at 17 (“Ethical fading occurs when the ‘moral colors of an ethical decision fade into bleached hues that are void of moral implications.’”), quoting Ann E. Tenbrunsel and David M. Messick, Ethical fading: The Role of Self-Deception in Unethical Behavior, Social Justice Research, Vol. 17, No. 2, June 2004, at 224.

24. Wong & Gerras, supra note 6, at 15, explaining:

One widespread recurring requirement for junior leaders in Afghanistan and Iraq was the storyboard—a PowerPoint narrative describing unit events and occurrences...however…[e]very contact with the enemy required a storyboard. People did not report enemy contact because they knew the storyboard was useless and they didn’t want to go through the hassle….So what ended up happening was [that] after about the first couple of months, you’re saving your storyboards, and as soon as you had an incident that [was] somewhat similar to what you already had, it became a cut and paste gig.

Id.

25. Paolo G. Tripodi & David M. Todd, Casualties of Their Own Success: The 2011 Urination Incident in Afghanistan, 47 U.S. Army War C. Q., Parameters, no. 3, 2017, at 65.

26. Id. at 66.

27. Id. at 71.

28. Id. at 68.

29. Id. The unit’s ethical training program was described as the following:

The battalion’s ethical warrior program sought “to develop high performing individuals and small units who are morally, psychologically, and emotionally resilient in order to operate, live and thrive on an austere battlefield defined by fog, friction and severe stress.” Small unit discussions and ethical decision games were conducted. An ethical warrior reading list was posted to the battalion’s shared drive. The program continued during combat operations in Afghanistan. Significantly, prior to and following each mission, small-team leaders were to address and debrief potential or encountered ethical dilemmas, making the “harder-right” a matter of “muscle-memory.” Finally, the program helped post-deployment marines develop resilience and minimize posttraumatic stress. The marines of 3/2 probably completed more ethics training than other units who had deployed to either Afghanistan or Iraq. Moreover, the ethics training concept, which focused on small group discussions led by leaders in the platoon and in smaller units, was sound.

Id.

30. Profession, Dictionary.com, http://dictionary.reference.com/browse/profession (last visited Nov. 25, 2018).

31. Huntington, supra note 3, at 8.

32. Id.

33. Id. at 7.

34. Shanks-Kaurin, supra note 2, at 10.

35. See generally Huntington, supra note 3; Morris Janowitz, The Professional Soldier: A Social and Political Portrait (Free Press rev. ed. 2017) (1971); General Sir John Hackett, The Profession of Arms (Macmillan 1983) (1962).

36. Shanks-Kaurin, supra note 2, at 10.

37. Don M. Snider, The U.S. Army as Profession, in The Future of the Army Profession 13 (Lloyd J. Matthews ed., 2d ed. 2005) (2002).

38. Id. at 14.

39. Id.

40. Id. at 15.

41. Dempsey, supra note 3, stating:

All service men and women belong to the profession from the junior enlisted to our most senior leaders. We are all accountable for meeting ethical and performance standards in our actions and similarly, accountable for our failure to take action, when appropriate. The distinction between ranks lies in our level of responsibility and degree of accountability. We share the common attributes of character, courage, competence, and commitment. We qualify as professionals through intensive training, education, and practical experience. As professionals, we are defined by our strength of character, life-long commitment to core values, and maintaining our professional abilities through continuous improvement, individually and institutionally.

Id.

42. ADP 6-22, supra note 14, para. 1-2.

43. Id. paras. 1-3 to 1-9.

44. Id. para. 1-6.

45. Id.

46. Id. para. 1-8.

47. Id. Figure 1-2.

48. Id. para. 5-42.

49. Id. para. 1-14 (“The Army’s trust with the American people reflects their confidence and faith that the Army will serve the Nation and accomplish missions ethically. This trust is earned and reinforced as the Army contributes honorable service, demonstrates military expertise, and exercises responsible stewardship.”).

50. Id. para. 1-55.

51. Orrin N. Carter, Ethics of the Legal Profession 13 (1915) (“The duties and responsibilities of the lawyer are most grave and important. Interests of vast magnitude –property, liberty, and character, and even life itself –are entrusted to him. His profession has in all ages been considered a favored calling. His should, therefore, guard with jealous care not only his own reputation, but that of his profession as well.”).

52. U.S. Dep’t of Army, Field Manual 1-04, Legal Support to the Operational Army para. 1-1 (18 Mar. 2013) [hereinafter FM 1-04]. FM 1-04 is the manual providing a “foundation for Judge Advocate General’s Corps (JAGC) personnel to build upon to provide principled counsel and mission focused legal support to the operational Army.” Id. at intro.

53. Pede, supra note 11.

54. FM 1-04, supra note 52, para. 1-12.

55. Judge Advocate General’s Corps, 10 U.S.C. §§ 3072, 3064(a)(2) (2012).

56. Requirement of Exemplary Conduct, 10 U.S.C. § 3583 (2012) “All commanding officers and others in authority in the Army are required...to show in themselves a good example of virtue, honor, patriotism, and subordination.” Id.

57. UCMJ art. 27(b)(1), (2) (2016) (“[Judge advocates must] be certified as competent to perform such duties by the Judge Advocate General of the armed forces of which he is a member.”).

58. U.S. Dep’t of Army Reg. 27-1, Judge Advocate Legal Services para. 3-3(d) (24 Jan. 2017). In addition to being a member of a bar, judge advocates are subject to the following:

[I]s subject to the jurisdiction’s disciplinary review process; has not been suspended or disbarred from the practice of law within the jurisdiction; is up-to-date in the payment of all required fees; has met applicable CLE requirements which the jurisdiction has imposed (or the cognizant authority has waived those requirements in the case of the individual); and has met such other requirements as the cognizant authority has set to remain eligible to practice law.

Id.

59. UCMJ art. 42(a) (2016).

60. Shanks-Kaurin, supra note 2, at 10.

61. U.S. Dep’t of Army Reg. 27-26, Rules of Professional Conduct for Lawyers para. 7(a) (28 June 2018) [hereinafter AR 27-26]. These rules for professional conduct also apply to lawyers practicing under “Section 1044, Title 10, United States Code (10 USC 1044), other laws of the United States, and regulations of the Department of the Army, including AR 27–1, AR 27–3, and AR 27–10.” Id. The four Senior Counsel “denotes the General Counsel of the U.S. Army, The Judge Advocate General of the U.S. Army, the Command Counsel of the U.S. Army Materiel Command, and the Chief Counsel of the U.S. Army Corps of Engineers.” Id. App. B Rule 1.0(s).

62. Id. para. 7(a)(1)(a).

63. Id. para. 6(a).

64. U.S. Dep’t of Def., 5500.7-R, Joint Ethics Regulation (JER) para. 1-209(b) (30 Aug. 1993) (C7, 17 Nov. 2011) [hereinafter JER].

65. AR 27-26, supra note 61, Rules 1.8, 7.1.

66. United States Army Judge Advocate General’s (JAG) Corps Mission and Vision, JAGCNet (9 Mar. 2012), https://www.jagcnet.army.mil/cnet.army.mil/Sites/jagc.nsf/homeContent.xsp?open&documentId=DEE613DFEC84B73B852579BC006142CE.

67. Policy Memorandum 17-01, Headquarters, The Judge Advocate Gen.’s Legal Ctr. & Sch., U.S. Army, subject: Professional Responsibility (1 Dec. 2017).

68. Id.

69. Id.

70. James H. Toner, True Faith and Allegiance: The Burden of Military Ethics xi (Univ. Press of Ky. ed. 1995) (1946).

71. U.S. Dep’t of Army, Doctrine Pub. 1, The Army para. 1-5 (31 July 2019) .

72. ADP 6-22, supra note 14, para. 1-71.

73. Id. para. 1-6.

74. Id. para. 1-44.

75. Id. paras. 1-32 to 1-37.

76. Id. para. 1-35.

77. Id. para. 1-32.

78. Id. para. 1-35.

79. See Character, United States Military Academy West Point, https://www.usma.edu/character_new (last visited Jan. 28, 2019).

80. U.S. Dep’t of Army, Reg. 350-1, Army Training and Leader Development para. 1-10 (10 Dec. 2017) [hereinafter AR 350-1].

81. Id. para. 1-11(a)(1).

82. Id. tbl. F-1. Institutional training includes schools like Initial Entry Training, Basic Officer Leaders Course, Noncommissioned Officer Education System, Officer Education System, School for Command Preparation, and Civilian Education System. Id.

83. Id. para. 2-18(m).

84. Id. tbl. F-1.

85. Id. tbl. F-2.

86. Id.; see generally JER, supra note 64.

87. AR 350-1, supra note 80, Table F-2.

88. Danica Irvine, Standards of Conduct Office, Office of the General Counsel, Department of Defense, Financial Disclosure, at slides 11, 38-41 (Feb. 21, 2019) (unpublished PowerPoint presentation) (on file with author); Public Financial Disclosure Guide, U.S. Off. of Gov’t Ethics, https://www.oge.gov/Web/278e Guide.nsf (last visited Mar. 11, 2019); Confidential Financial Disclosure, U.S. Off. of Gov’t Ethics, https://www.oge.gov/web/oge.nsf/Confidential%20Financial%20Disclosure (last visited Mar. 11, 2019).

89. AR 350-1, supra note 80, tbl. F-2.

90. Id. para. 5-20(c)(6).

91. ADP 6-22, supra note 14, paras. 2-1 to 2-32.

92. Id. para. 2-3.

93. Id. paras. 2-17 to 2-19.

94. Id. para. 1-22.

95. AR 350-1, supra note 80, para. 2-18(m).

96. AR 27-26, supra note 61, para. 1.2(d).

97. FM 1-04, supra note 52, paras. 4-9, 4-22

98. U.S. Dep’t of Army, Field Manual 6-0, Commander and Staff Organization and Operations para. 2-105 (5 May 2014) (C2, 22 Apr. 2016).

99. Id. para. 2-113.

100. Id. para. 2-107.

101. See generally U.S. Dep’t of Army, Reg. 58-1, Management, Acquisition, and Use of Motor Vehicles (RAR 12 June 2014).

102. AR 27-26, supra note 61, Rule 1.13.

103. Id. Comment (2).

104. Id.

When the officers, employees, or members of the Department of the Army make decisions for the Army, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not, as such, in the lawyer’s province.

Id. Comment (3).

105. Id. Rule 5.4.

106. Id. “This Rule recognizes that a Judge Advocate is a commissioned military officer required by law to obey the lawful orders of superior officers.” Id. Comment (3).

107. Wong & Gerras, supra note 6, at 3 (quoting U.S. Dep’t of Army, Pam. 600-2, The Armed Forces Officer 3 (Feb. 1988) (on file with author))

The nation expects more from the military officer: It expects a living portrayal of the highest standards of moral and ethical behavior. The expectation is neither fair nor unfair; it is a simple fact of the profession. The future of the services and the well-being of its people depend on the public perception and fact of the honor, virtue and trustworthiness of the officer corps.

Id.

108. Pede, supra note 10; see generally Major General Thomas J. Romig, USA Retired, The Thirty-First Charles L. Decker Lecture in Administrative and Civil Law (May 8, 2013) (transcript available 221 Mil. L. Rev. 277 (2014)). Major General Romig describing his principled struggle within the Department of Defense in 2003 when as the Army TJAG he opposed the Office of Legal Counsel “torture memos”:

Each TJAG submitted a very strong dissent to the opinion of the Office of Legal Counsel. Our opinions were classified Secret and were not declassified until late 2004 or early 2005. After we submitted our written opinions, we were told by the DoD General Counsel that the Secretary of Defense had considered our opinions and decided to withdraw the working-group report. A year-and-a-half later, we learned the report had not been withdrawn and that our objections were nowhere to be seen on the report.

Id.

109. Tripodi & Todd, supra note 25, at 71.