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Putting Principled Counsel into Action

 

 

 
 
   
   
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(Credit: istockphoto.com/Elizabeth M. Ruggiero)

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“But, Sir…”
What Does Principled Counsel Look Like in Action?

“Sir, you can’t fire on that target!”

Or, “You can’t buy ammunition for the Iraqis…”

These examples might resonate for a law of armed conflict (LOAC) opinion or an ethics or fiscal law dilemma, but in the day-to-day give-and-take practice of law with the best clients in the world, rarely is it so clear cut.

It’s more nuanced; more contextual. And context always matters. Take questions like: How do we find a way to fund food and fuel for the Peshmerga to ensure they tend their border areas when the “Pesh” don’t “fit” our current view of the U.S. legislation? Can we spend U.S. dollars on a carpet for a mosque or cooking oil for Afghan villagers? What if that carpet and cooking oil would ensure safe passage for Soldiers through a village that was otherwise unfriendly? Do pragmatic interpretations of fiscal law embrace principled counsel?

What about releasing detained Iraqis—captured on operations—known to have murdered fellow Iraqis and Americans? Although properly detained, the host nation leader now seeks their release from United States/Host Nation joint detention to pursue reconciliation. Your job is to convince the local judge to undo the properly-imposed detention order you spent weeks perfecting through raids and witness identification and preservation.

Simply put—what does principled counsel look like in the fog and chaos of war? “There I was…,” as the story so often begins. Nearly thirty years ago, I served as a legal advisor during Operation Restore Hope, a U.S.-led multinational effort to create a protected environment for conducting humanitarian operations in Somalia. It was August 1993, roughly two months before the now famous October raid to capture the Somali warlord Farrah Aidid.

The radio crackled and the voice screamed, “Grenade!” Somalis were swarming an engineer column. The chatter on the radio was charged. Colonel (COL) Michael Dallas, who commanded the 10th Mountain Division Combat Aviation Brigade and the Quick Reaction Force, strode into the tactical operations center (TOC) directly from his overflight of the area and slammed his rifle onto the large plywood plans table, frustrated the staff hadn’t yet brought firepower to bear to relieve the convoy in distress. A subtle sergeant major quietly removed the magazine and chambered round from the commander’s rifle as the S3 updated him. I sat at the radio with the battle captain, recording the radio transmissions—a duty I’d assumed for the aviation brigade, just as the indomitable Captain Roger Cartwright had done for the 1st Brigade before us.

Like Roger, I was able to quickly capture the details and wordsmith for the truncated log and—when appropriate or when asked—give advice on fairly novel rules of engagement (ROE). Shoot at crew-served weapons on sight? Use deadly force or warning shots in response to penetrations into our wire? What about firing on those who used flashlights to “paint” our Blackhawk helicopters at night in order to blind our pilots? Could our airborne scout weapons team target highly-mobile, truck-mounted mortars in dense urban terrain—without “eyes on?” Of course, the mortars usually only fired in darkness—ever elusive but for our radar and almost nightly producing three to six rounds into our compound. When you live in a tent, three to six mortar rounds can change your view of counter battery fire.

“Tell the pilot to open up,” COL Dallas told the battle captain.

What does principled counsel look like now? Americans were about to die, and perhaps even worse—be captured and tortured. I looked up at COL Dallas from the TOC log. We all knew the streets in Mogadishu were a chaotic mixture of women, children, and armed Somalis. He wasn’t asking for anyone’s input—or options.

I said what came to my mind under very stressful conditions—so erudite, so clear headed, so principled.

“But, Sir.”

That’s it. Brilliant, right? I didn’t know what to say. No one was asking me anything. I just felt compelled to say it.

Colonel Dallas looked at me, then at the battle captain, and said, “Direct him to fire warning shots into the wall.” The bird opened up on the wall—dispersing the “swarm.” The convoy accelerated safely home amid the warning shots.

Principled counsel? Is that really what it looks like? Is that it? No grand show. No Hollywood moment. No real insight or command of the law. No glory here. No brilliant insight in a moment of stress. In such moments, counsel based on principle is often murky and confusing. As it was in this moment.

My mind raced for some clear notion of applicable LOAC to offer the commander. I had none. I tried to find clear words that would help my commander. I failed. Without really thinking, I blinked and said only that which came to my mind. Perhaps my gut sensed a second’s pause might give my mind the time it needed to find the right words. But that is all the commander needed anyway—because he was already there.

Be Patient

Principled counsel comes in many forms. Not from a book, although books can be useful benchmarks full of insightful stories. In my experience, it comes from your heart, and your extended heart—your gut. It starts with a developed and deep moral sense of what is right, shaped by, yes, the rules of civil society and what that foundation may say about the topic at hand.

Our principles are infused with what the law and ethics tell us are normative values. We give these notions life through a lifelong development of habit—doing the right thing, when no one is looking, based on these normative values.

We pick up trash on the sidewalk we did not put there because we know it’s the right thing to do. Why? Because we’ve seen someone else do it—and we admire them for it. We know it makes our community a better place.

We counsel how to care for our loathsome enemy prisoners of war because we know it’s the right thing to do—because we’d want to be treated properly as well and we hope for a measure of reciprocity in the next fight.

This is from where our sense of principle emanates. It is from our shared cultural wellspring of what right looks like.

Principled counsel is also collaborative. Colonel Dallas was already there. Like everything we do, he simply needed some friction—some alternative—a momentary pause to give himself another option. And without missing a beat, the combat leader found his option on his own. The mark of an exceptional field commander.

The Drumbeat

This is why we drumbeat the Constant of Principled Counsel. I offer these various personal examples—told here for the first time—to give some context to the Constant we drumbeat as a Corps and celebrate in this issue of The Army Lawyer.

From Somalia, to Haiti, to Bosnia, and Kosovo, to Iraq and Afghanistan, the last thirty years are replete with timeless examples of principled counsel. I can say that, just from my foxhole, having lived it. However, I know that these timeless examples are only a small piece of our history and that members of our Corps have been providing principled counsel on the battlefield from our very inception. The battlefield and the weapons may change; the ROE and the fiscal authorities may look different; but the value of a judge advocate saying, “But, Sir” remains the same.

For the past three years, we have showcased our Constants—Principled Counsel, Mastery of the Law, Stewardship, and Servant Leadership—and have depicted them, visually, as points of a North Star. This was deliberate. Guiding principles point the way through the darkness, toward the light. And as we have been an Army in transition and transformation—and know more transitions are still to come—we chose our Constants to lead our way.

As I type this, I am sitting in the study of my house rather than at my desk in the Pentagon. As you read this, months from now, think back to May 2020 and where we were in the COVID-19 fight. We have done much work as a Corps and an Army—and as a Nation—but there is much work to be done. As states begin to reopen and return to a “new normal,” there is also much uncertainty. And as we face uncertainty, we as a Regiment turn to our Constants.

Our Corps’s doctrine defines “principled counsel” as “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.”1

Professional advice on law and policy is expert, well-researched, and delivered at the speed of war. Principled counsel influences a commander’s exercise of discretion to apply sound judgment and fuels the commander’s intent.

In a crisis, principled counsel is a challenge—as my stories illustrate. As the temperature rises and the pressure builds, commanders want to get after the problems—to solve them and deliver results. In the case of COVID-19, commanders want more than anything to keep people safe. What could be more important than that?

In the rush to solve the problem, you must possess the calm, cool head. You may have heard that I find inspiration in Kipling: “If you can keep your head when all about you are losing theirs…”2

Our charge is to bring the rule of law to the forefront and to provide the commander with options. In a sense, principled counsel can bring the temperature down and relieve the pressure—allowing everyone to take a pause, reassess, and reattack the problem. Never is principled counsel more vital to your commander than in a crisis. But it is often not as lofty or aspirational or refined as you’d like it to be. That is OK. I trust you will have your moment as I did.

You, too, will likely have your moment to say,

“But, Sir...”

Be Ready! TAL

 



Notes

1. Lieutenant General Charles N. Pede & Major General Stuart W. Risch, TJAG and DJAG Sends, Vol. 40-16, Principled Counsel—Our Mandate as Dual Professionals (Jan. 9, 2020).

2. Rudyard Kipling, If, in Rewards and Fairies (2010).