Before his appointment in late June to Acting Under Secretary of the Army, James E. McPherson, then the General Counsel of the Army, sat down with The Army Lawyer to talk about his life and military career. McPherson, a former Judge Advocate General of the Navy who began his military career in the Army as part of the Military Police (MP), previously served as the executive director of the National Association of Attorneys General and as the general counsel of the Department of Defense’s Counterintelligence Field Activity. McPherson is a recipient of the Distinguished Service Medal, the Legion of Merit, and the Meritorious Service Medal.
TAL: Can you tell us how you went from Army MP to Navy TJAG to General Counsel of the Army? It’s not exactly a typical career path.
MCPHERSON: Good question. I was an undergrad in 1972 at Bethel College in St. Paul, Minnesota. I was from San Diego, but Bethel was a church-affiliated school, and they offered me scholarships and financial aid and I was dying to get away from the parents, the usual adolescent stuff. I found out as a freshman that I was likely going to be drafted for Vietnam in the fall of my sophomore year. And I thought, “That’s crazy. Why don’t I join?” When I went home for summer break, the first thing I did was go to all the recruiter offices. At the time, the Army was the only service that had a three-year enlistment. All the rest were four, five or six. That made it obvious: I’m going in the Army.
So instead of going back to college, off I went to Fort Ord, California, for basic training. Then to Fort Gordon, Georgia, where the MP school was at the time, for AIT. My first duty station was at the Presidio in Monterey, California, which was like being a park ranger. And then I went to Pusan, South Korea, and I was very fortunate because I was in the Eighth Army, which was pretty far from the DMZ. We were just security guards, watching the offloading of equipment and storage and everything else from a ship onto a railcar. I did that for a little over a year. And then my next assignment was the 1st Infantry Division at Fort Riley, Kansas. The crime rate on Army posts at the time was off the charts; drugs everywhere. It was like suddenly being thrust into the job of a cop in New York City. I always planned on going back to school. So while I was in the Army, I took advantage of taking classes wherever I went. I had credits from all over the place. Put all those credits together and I was actually a junior when I got out of the Army and started back in college at San Diego State.
After I graduation, I took the LSAT. I scored pretty good and got into University of San Diego Law. But at that time the economy was in fairly bad shape and people were graduating law school and bussing tables at Denny’s. Not that that’s a bad career, but not what you plan to do when you were in law school. So I started thinking maybe there’s a program out there where I can join now, whether it be a corporation or somewhere, and have a guaranteed job upon graduation and passing the bar. And I wondered if the military had something like that because I was familiar with JAGs. Being an MP, I could remember testifying in courts-martial and stuff. So I went to all the Services, except the Coast Guard, only because I did not know if they had JAGs. I went to all the Services and there was only one Service that offered a student program at that time where you could join while still in law school and it was the Navy. That’s how I went in the Navy JAG Corps. There was no money involved for tuition, but it was a guaranteed job. I was commissioned as an ensign in the Naval Reserve while in law school and when I graduated I came on active duty in the Navy JAG Corps.
Had you intended to make it a career at that point?
No. I had always intended to stay in for the three-year gig and then get out.
How did you move up from that to TJAG?
Well, first, TJAGLCS is what made the Navy a career for me. As mentioned, I always intended to get out after three years. I went to the Philippines as an SJA, and then I was the SJA on the U.S.S. Theodore Roosevelt and had a great time. By the time I completed that tour, I had ten years. TJAGLCS was next. And if I went there, I would owe the Navy not only the year I spent here, but three years in addition to that. So, once I’m over the ten-year mark, I knew that it would be a career. And that was the career decision I made, to come here and then make it a career.
After TJAGLCS, I went off and did more SJA stuff. And one day I’m sitting my office—I’m the SJA at Submarine Forces Atlantic, which is in Norfolk—and my boss is a three-star. He’s in charge of all the submarines in the Atlantic fleet—and I get a phone call from my detailer. He asked if I would mind filling out a nomination slate as counsel to the Vice Chief of Naval Operations. At the time, the JAG Corps had a policy that before we assign anybody to another flagstaff senior officer, we gave that officer a slate of three names and their bios and everything else, and then they can either hold interviews or select whoever they want. And there is always one of those who is the one the JAG Corps really wants to fill the position. And the two others have to be credible nominations, but the JAG Corps does not really want the others to be picked. The euphemism the Navy calls them is a “pair of shower shoes.” So my detailer calls me up and says, “Jim, I need you as a pair of shower shoes.” I said, “Fine. I’m happy where I’m at. I won’t get selected. I don’t have to worry about it. Yeah, you can put my name in.” I figured that would be the end of it. But then he called me about a week later and he said, “Jim, kind of weird. The Vice Chief wants to interview all three. We never had interviews before. We thought there’d just be a paper drill.” So I went up to the Pentagon, first time I ever stepped foot inside the building. But I’m still thinking there’s no way I will get picked. I have no Pentagon experience. I’m just a poor JAG Corps commander out there doing my thing. Well, come to find out, I didn’t even know it at the time, the Vice Chief of Naval Operations then was a guy by the name Admiral Joe Prueher. I knew Joe Prueher when he was a Captain on board the U.S.S. Theodore Roosevelt. He had been the Air Wing Commander during our deployment and I had worked with him on a couple of investigations. To the point that once when we were in port visiting Wilhelmshaven, Germany, one of his pilots got in trouble and arrested by local German police and he came and grabbed me and said, “Jim, can you help me come and get this guy out of jail?” I said, “Sure, Captain.” I went with him to the Wilhelmshaven Police Station and handed out ball caps and coins to the local police and they released the lieutenant to us. So Admiral Prueher knew me. So I come walking into his office for the interview and he says, “Jim, how you doing? Been a long time since I’ve seen you.” And I said, “Wow, Admiral, I’m doing great. But I’ve only been promoted once since we last worked together and you’ve been promoted four times. You’re doing much better than I am.” He laughed. And the interview consisted of him saying, “So would you like to work for me again?” And I said, “That’d be great.”
And so you are at the Pentagon, and it’s just a matter of luck and pluck from there?
Yes, essentially. From then it just—I did okay in that job. Admiral Prueher left, went to PACOM. And the person that came behind him was Admiral Jay Johnson. He was the Vice Chief for about six months until Admiral Mike Boorda committed suicide. Then Admiral Johnson became the Chief of Naval Operations (CNO), asks me to be his counsel and that was the springboard to being selected for Deputy JAG. It’s a strange story. It’s luck for sure, right place right time. But it is also working hard and doing a good job wherever you find yourself.
Your father was a veteran. Was he in the Army?
He was in the Navy. He was a Seabee. We—my brother and I—knew he was a Seabee in the Navy. But he never talked about what he did and we never asked. And I am sorry about that to this day. He passed away early. He was an alcoholic; drank, smoked, abused himself. He died of emphysema when he was sixty-four. A couple of years after he passed away—I was a lieutenant commander at that time—I began to wonder what his record looked like. So I wrote to the records center in St. Louis and told them who I was and that I was interested in getting my dad’s service record.
He never talked about it? That’s how you found out, through a records request?
Yes. So they sent me the service record and I looked through it and I discovered that he was assigned to a Seabee battalion and that he had an award that indicated he had participated in the D-Day operation. I wondered what that was all about. I contacted the Seabee museum at Port Hueneme, California, and asked if they had any records from his battalion in World War II, and it turned out they did. They sent me the records, and it included the after-action report from D-Day, and sure enough, his battalion’s mission was at Omaha Beach. They landed around noon on D-Day. Their job was to build that pontoon pier you see coming out from Omaha Beach on D+2, D+3. That Seabee battalion built that pier and my dad was part of that battalion.
And so he spent D-Day on Omaha Beach. And you know, the interesting thing is something clicked when I learned that. I grew up in San Diego, ten miles from the beach. And during the summer time, my mother would load all the neighborhood kids and me and my brother in the station wagon and we’d go to the beach. She was a beach person. She loved the beach. We would go to the beach. My father never went to the beach. Not once. And I used to think to myself “that old bum.” I mean, look at this, the family goes to the beach and he never goes. And when I read that report about Omaha Beach, it all came home. No wonder he never went to the beach. And to this day, I wish I would have sat down with him with a tape recorder and said, “Dad, tell me about World War II.” So his unit spent the next six months or so in Normandy. And then they went back to the United States, back to Port Hueneme on the West Coast, and then got on a transport to make the D-Day landing on Okinawa in April 1945.
Yeah. Okinawa too. Yeah, I never knew. But that’s his generation.
So you guys never talked about—when you were in the Navy or the Army, you guys never talked about that?
He never mentioned it.
And when you went to law school and you became a judge advocate, was he still alive?
Oh, yeah. He was still alive.
So this Seabee who had been at Normandy and Okinawa never said anything about his son being a lawyer in the military?
Never, ever. Never talked about it. Isn’t that sad? I never captured that for my kids, my grandkids. Never got that tape recording—
But also, your relationship to him wasn’t made more whole.
My relationship too. It was never really good. He was abusive. Wasn’t around a whole lot. He provided for the family; worked hard. He was in construction, but, you know, he always had these ghosts that chased him. And I never knew what the ghosts were.
Until I looked through his record. Right.
Let’s shift gears. I was talking to some of the judge advocates here and nobody really thought they had a clear understanding of the General Counsel’s operations. What do you do? How does that work within the hierarchy of the Army?
Absolutely. So Headquarters, Department of the Army, is divided into two parts. One part is called the Secretariat and those are the political appointees: the Secretary, the Undersecretary, the Assistant Secretaries, and the General Counsel. When I was on active duty as the Navy JAG, we would call the political appointees “just another empty suit.” So now I am “just another empty suit.” And the Secretariat does policy and oversight; that’s the mission of the Secretariat. So that’s the Secretariat side. On the other side is the Army staff. The Army staff takes those policies, turns them into plans and programs, and then sends them out to the field where they are implemented. So the easy way to think of it is on the Secretariat side, the political appointee side, and their staff, my staff, we do policy. And on the Army staff side, those working for the Chief of Staff, they do planning, program, implementation. That is the general idea of the divide, and there are gray areas in between all of those things. My client is the Secretary of the Army and all the Assistant Secretaries. I have an exceptional staff of thirty-five to forty attorneys in the building. We divide up into portfolios that support the Assistant Secretaries. There is a lot of overlap with TJAG’s offices in the Pentagon, but the key to that overlap is ensuring there is no friction in the relationship between General Pede, General Risch, and me. That is what it is all about.
I do hear about a certain historical tension between the two sides.
Oh, sure. Absolutely, there’s been a tension.
And what’s that’s like, particularly as somebody who used to be a Judge Advocate General?
So when I was the Deputy JAG for the Navy, and then TJAG at that time, the relationship between the Army JAG and the Army General Counsel—more so the Air Force TJAG and the Air Force General Counsel—was not the best. From my perspective, they were at each other’s throats constantly for a variety of reasons. It got so bad at one point that the TJAG of the Air Force and the General Counsel of the Air Force refused to be in the same room with each other. Think about that—that is absolutely astounding. Juxtapose that to the Navy. Alberto Mora was the Navy General Counsel and he was such a gentleman, such a professional. The first day that I met him, I was the incoming Deputy and he said to me, “Jim, my philosophy is that this is one law firm and we are equal partners in that law firm.” And he not only had that philosophy, but he actively put that philosophy into action every single day. We had a tremendous relationship. We became very good friends. I stay in touch with him now. He works for the ABA. We see each other, go to lunch together, all that sort of stuff. We became not just professional colleagues, but friends.
So, when I was tagged to come to this job as the Army General Counsel, I resolved that I was going to have the same relationship with General Pede that I had with Alberto Mora, and the first time I reached out to General Pede, I shared that story with him, and I said, “General, I want to have not just a good working relationship with you, I want to have a friendship with you as well because I want our people to look at us, you and me, and see how well we work together and they will follow our lead work together well.” And it’s true.
So you used that template from the Navy.
Absolutely. I absolutely did. And it works. One of the things I touch every single day is—and my XO will tell you one of the first questions I have if an issue comes up is—whose lane is this in? Does this belong to General Pede, and if it does, it is his. Every once in a while, my staff will say, “Oh, but, sir . . . .” And I’ll say, “No, that belongs to General Pede’s staff. We will assist them. As a matter of fact, I want you to call up your counterpart and say ‘I know you’re working this issue, how can we be of help?’” But General Pede has lead and he briefs the Secretary, I have no problem with that. He corresponds directly with the Secretary. I not only do not have any problem with that, I ask him to do that. We de-conflict those issues before they ever arise and our people see that.
Was General Pede surprised when you first approached him?
You’ll have to ask him that. But I think he was a little taken aback.
Just because he aware of that historic tension?
When I came into the job, I learned that there were certain portions of my staff that did not get along well with their counterparts in OTJAG. Several of them have moved on, which was good. The ones that are there now—the leaders that are there now, get along with their counterparts very well. So yes, it’s all about relationships.
So in your role, you’re a political appointee. You have to account for the social and political implications that come with a policy, for example, transgender Soldiers. But on the other hand, you’re a lawyer, and as someone who was TJAG, you know the institutions limits and rules. How do you work that? How does that all come together?
It may sound corny, but I fall back upon the oath that I took, and that is one of the things that I learned when I was a young SJA. I had a great mentor who said to me, you know, the first job of a staff judge advocate is to be the constitutional conscience of their command. You are the constitutional conscience of your command and I’ve always touched upon that no matter what assignment I went to, and I touch upon it with this assignment as well. Yes, I am a political appointee, but who or what did I take an oath to? I did not take an oath to President Trump. I did not take an oath to the Republican Party. I took an oath to the United States Constitution. So that is my touchstone and I come back to that and I actually think about that frequently. When facing something like transgender issues, you ask, “What constitutionally is the right thing to do here, balancing what the Army’s needs against what the Constitution requires?” And I’m of the philosophy that those can always be resolved; there’s no unresolvable issue in that formula. That’s what I come back to all the time. What’s the constitutionally right thing to do in this case? It is not an outright ban on transgender individuals. It comes back to readiness more importantly than anything else. That the more important part is that we are ready to fight our nation’s wars. So people who are transgender—there are people who are transgender that do not suffer any behavior health issues whatsoever. They do not have gender dysphoria, which is the term for it, and they can serve. We do not care what they do on their time off on the weekends. If a man wants to wear women’s clothing, or if a woman wants to wear male clothing, on the weekends, that is their right. They can do that.
When it becomes a problem is when the gender dysphoria is involved, or they suffer from that and that requires treatment, and we just do not have the facilities to treat that and still maintain a ready force. One of the touchstones of being ready is deployability, so we require our troops to be deployable. You have to be deployable to be on active duty. To treat somebody who has gender dysphoria is a long process, during which time they would not be deployable. So you would take this set of Soldiers, Sailors, Airmen, Marines out of the equation of being deployable; out of the equation of being Soldiers who are ready to go fight our nations wars, and they would be over here and you could not use them for lengthy periods of time while undergoing this therapy. And that is going to be true for not just people that suffer from gender dysphoria, but people that suffer from any physically debilitating disease or injury.
What do you think is the greatest legal challenge that the Army faces today?
The greatest legal challenge we face today is what to prepare for tomorrow. There are legal issues out there that surround cyber. How we are going to fight the next war, whether it be tomorrow or twenty years from now. How do you apply rules of engagement to cyber warfare? What a difficult question. Those are tough questions. One of the jobs that Chuck Pede and Stu Risch have is training the young JAGs so that they are able to provide that advice when they are SJAs twenty years from now. So what should they be training for now? How are we able to look beyond the horizon, figure out what combat is going to look like, and what are the legal issues that are going to be surrounding it?
So, given that, what would you say to your typical captain or major out there, what sort of advice would you have for them?
My advice to the young captains out there is to know your client just like any attorney would. So if I worked for Boeing, I would know what Boeing’s product line is. I would know what they market and I would know what their plan is for future marketing. I would study and know all the things about my client to effectively represent them. My advice to the young captain is to get to know your client. If you are assigned to an infantry brigade, know what that infantry brigade does. What is their mission? What weapons do they use? What is the capability of those weapons? Go out and spend time with your clients—get down to the unit; go to the field with them. Talk to them and ask questions about what they do. Everyone loves to tell you about their job and what they do in the Army.
To bring it back to my Navy days, what I used tell the young lieutenants in the Navy is if you are assigned to an aircraft carrier I was assigned to an aircraft carrier—make it your mission to learn all you could about that carrier. I made it my mission to study the carrier and learn everything about it—how it would fight a war, what the airplanes were, what their capabilities were, what the tactics were. Get to know my client. The hardest part of that was when I went to submarines. When I reported into Submarine Forces Atlantic, my predecessor had been doing just strictly legal stuff; reviewing investigations, doing Freedom of Information Act, that sort of stuff. And I said this is not what I want to do. I want to get involved in the operational part of what this command does, so I went to my Chief of staff and I said, “Chief of Staff, I want to become an operational lawyer here in the submarine community. How do I do that?” And he said, “Oh, let me show you.” They sent me to classes, sent me to schools, got me security clearances. Eventually it came to the point where I was actually helping them—preparing mission plans and other operational documents because I knew my client. I knew the capabilities of that submarine. I knew their tactics. I knew their weapon systems so I could give better advice to my client because I knew what my client’s product line was. So I would say to the young captains in the Army what I said the young lieutenants in the Navy: know your client.
Time for one last question: Army/Navy game, who do you root for?
[Laughing] So, I worked hard on this, but I have to always pause because it does not roll off the tongue naturally: Go Army, Beat Navy.