Be an Honest Broker
You have had a varied career, including your last assignment at Army Cyber Command. As the Army places an ever-growing emphasis on the role of cyber-and therefore cyber law—what do you think the future holds for cyber law and the Judge Advocate General Corps?
It has been a great last assignment because cyber warfare is still relatively nascent. The challenge currently is trying to figure out exactly what law applies and how, as cyber becomes increasingly operationalized. At this point, there are no cyber-specific treaties, and very little customary international law is being created because states are secretive about the cyber capabilities they have and the operations they are conducting, and what law they believe applies. Accordingly, cyber is currently a very exciting space within which to be a judge advocate.
How do you see the practice of law in an enemy-forced (cyber threat) analog environment?
It will be more challenging because we tend to do a lot of our research online. Fortunately, we continue to print great resources like the Operational Law Handbook and Law of Armed Conflict Documentary Supplement. Even when we were first issued the original “JAG in a Bag” kits in the 1990s, we continued to bring hard copies of important publications to the field, and we need to continue to do that.
Moving from your current and final assignment in the Army to how you began your career, you commissioned into the Quartermaster Branch (QM) out of Georgetown University’s Army Reserve Officer Training Corps (ROTC) Program. Why did you select QM and why did you ultimately decide to go Funded Legal Education Program (FLEP)?
In my freshman year at Georgetown University, I joined ROTC because my father, a retired Army officer, had done ROTC and I thought it was a patriotic thing to do.
Your father was an Army officer?
Yes, after ROTC he commissioned Infantry and then ended up in the artillery, when artillery was still horse-drawn. After college graduation, he served in the National Guard but after earning a Master’s in Public Administration, he was called onto active duty in July 1941 and branched AG (Adjutant General’s Corps); then eventually detailed IG (Inspector General’s Corps). He served in World War II and the Korean War, and was eventually stationed in France in the early 1960s, where he met my mother. My mother was a French local national legal assistance attorney at the U.S. Army base in Orléans. My father retired shortly before I was born, and we lived in France until I was about seven years old.
I have to interrupt and ask you, is this why you pronounce your name Jan?
Yes. While my parents named me “Ian,” it is hard for the French to pronounce. The way my name is pronounced is the Americanized version of the French name “Yann” (think of the French tennis player Yannick Noah, though, today folks are probably more familiar with his son Joakim). When we moved to the states, I hadn’t even heard the traditional pronunciation of “Ian” so it stayed “Yann,” albeit Americanized.
We then lived in New Orleans for three years before moving to San Diego at age ten; San Diego is where I consider home. I attended a magnet high school for science, math, and computers. In eleventh grade, I decided that I wanted to be a diplomat—maybe in part because my mother had worked at the UN—rather than focus on the science/math/computers, so I enrolled at Georgetown in its aptly-named School of Foreign Service because they had highest undergraduate placement rate into Foreign Service.
As I said, I enrolled in ROTC because I thought it was patriotic and could see myself doing reserve duty. It turned out that all but two of us in my class were there on a scholarship—I had no idea going in that there was such a thing as an ROTC scholarship, and eventually got one. I took and passed the written and oral Foreign Service exams, was placed on the Foreign Service register, and shortly before the winter break of my senior year was offered a position in the equivalent of their basic course following graduation. I was elated. I then returned from winter break to see the ROTC accessions list posted and was shocked to see I had been branched active duty field artillery, because this was a time when there were relatively few active duty commissions and I had requested a reserve commission. Even some of my friends with four-year ROTC scholarships did not serve on active duty. I asked for reconsideration but was unsuccessful. I was honestly very upset at the time. Once reality set in, I decided that I didn’t want to be an artilleryman seven days a week, so I asked to be branched Quartermaster instead so I could stay close to my future wife, Karen, who was a year behind me at Georgetown, by attending the Quartermaster Officer Basic Course at Fort Lee. It seems pretty shallow, I know, but I had the mindset of a college student and I’d have to say that the decision to keep dating Karen has worked out pretty well!
How did you end up doing thirty years in the Army after initially being upset about being put on active duty out of ROTC?
I had a four-year active duty commitment, and placement on the Foreign Service (FS) register was only good for two years. I didn’t want to take the FS exam again because until I took the bar exam, this was the most grueling experience I had encountered. My first duty station was with the 10th Mountain Division, and despite four long Fort Drum winters I had come to love the Army. I became interested in serving as an attorney and remembered a legal brief I had during the Basic Course, which included a brief comment about the opportunity to attend law school under the Funded Legal Education Program. From there, it was really a simple math problem (five years active duty before law school plus three years of law school took me to fourteen years after the FLEP commitment), so twenty seemed very logical. I also set a goal to become an O-6, the rank my father had achieved. He was my hero.
After thirty years, where do you fall on the question of “broadly skilled” or “versatile experts?”
As a Staff Judge Advocate (SJA), you have to rely on your people who possess the expertise to answer difficult questions of law, but in the end, you are the one “the boss” is looking to for answers. In truth, however, the branding of our profession is cyclical in my opinion. The expression used to be “JAG Corps Pentathletes”; today, it’s “versatile.” The bottom line is that we still want folks who can respond to a variety of questions in a variety of situations.
Senior officers, our leaders and commanders, are also looking for an honest broker in their judge advocate. They want someone who will give them a straight answer. We have to tell them what they need to hear, not what they want to hear. As an honest broker, we exist to protect the command. It’s that simple.
What was your least favorite JAGC assignment you’ve had?
To quote my good friend LTC(R) Ray Jackson, who was the former Chief of the Judge Advocate Recruiting Office: “There are no bad assignments; only bad attitudes!”
Fair enough, sir. What was your favorite assignment?
I’ve been blessed to have a lot of what I consider to be great assignments, but I’d have to say that my favorite was as Staff Judge Advocate of 1st Armored Division, in Wiesbaden, Germany. Division SJA is the only job I aspired to do, and I felt honored to have the opportunity to achieve that goal. I knew I wanted to do it since my first JAG assignment at Fort Stewart in the 3d Infantry Division. I was so impressed by the stature of Colonel Fran Moulin, who sadly died shortly after retiring, at the age of 48. He was my first SJA; I had scheduled an office call when I first arrived and was just struck by his big/charismatic personality. Everyday his presence was inspiring, and that made me want to be a Division SJA. Divisions were the building block of the Army at that time. One of the things I really enjoyed about the assignment was that the size of office was perfect, so you could get to know everyone.
On your most recent deployment as the SJA with the with III Corps you encountered a number of difficult legal issues in the fight to defeat ISIS. Perhaps most noteworthy, your unit engineered a well-documented leaflet drop prior to bombing ISIS fuel trucks, which began the steady and ultimately successful attack on ISIS funding. How did the leaflet/messaging drop for Operation Tidal Wave II come about?
At one time, ISIS was characterized as the wealthiest terrorist organization in history, and much of its revenue came from illicit oil and gas revenues. One of the significant enablers of this income source were thousands of trucks that transported the oil from ISIS-controlled sites, enabling its sale. Early in our deployment as the headquarters for CJTF-OIR, the commander, LTG Sean MacFarland, recognized that disrupting the transportation of oil could have a significant effect on ISIS revenue generation. The planners at CJTF-OIR told LTG MacFarland that “the lawyers” (not our team!) had shot down a previous plan to strike oil tankers.
I asked my Air Force chief of operational law, who had been deployed for several months prior to the arrival of III Corps, what legal objections had previously been raised. I didn’t see them as insurmountable, so I got our team working with the J-3 section to devise a legally supportable plan. I also made it a point to involve the French member of our legal team, as even a modest amount of coalition support would be a good thing.
Because our legal opinion viewed the truck drivers as civilians—it would be virtually impossible to positively identify them as members of ISIS and we did not view driving ISIS oil as directly participating in hostilities—we knew that the possibility of civilian casualties existed and, therefore, we needed CENTCOM’s buy-in. The CENTCOM SJA at the time, then-Colonel Pat Huston, reviewed our work and entertained some concerns raised by the Combined Air Operations Center (CAOC) legal staff, and eventually sided with us. CJTF-OIR then began execution of Operation Tidal Wave II.
Lieutenant General MacFarland recognized that the truck drivers were just trying to make a living; his intent was not to kill them, but rather to dissuade them from trucking oil for ISIS. Prior to strikes, therefore, we warned the drivers through a variety of means including leaflets. One of my operational law attorneys, CPT Mary Beth Webb, supported our military information support operations (MISO) clients and reviewed those leaflets, among others. It was pretty cool to see one of the very leaflets she had reviewed reprinted in USA Today after one of the first strikes.
Operation Tidal Wave II was a huge success. Coupled with strikes on ISIS bulk cash sites, it dealt a severe blow to ISIS financing and, I think, helped expedite the counter-ISIS campaign significantly. Judge advocates were a huge part of that.
If you were given a “do over,” what would you change about your career?
I wish I had not fretted over assignments. It can be hard not to sweat the assignment cycle, but everything will work out; unfortunately I was a mid-grade major before I finally figured that out. I have rarely gotten the assignment I asked for, but I have always appreciated and enjoyed each assignment–honestly!
Do you have any other advice for young judge advocates, perhaps beginning their own march toward thirty years in the Army?
It’s an exciting time to be a judge advocate. Our young attorneys are as capable as we were decades ago, but they have somewhat different strengths. They are growing up in a more operationally-focused and less trial-focused Army. Aside from not sweating assignments, don’t fall into the trap of only answering the question that is asked. There is a tendency to be too quick to answer the question asked—and only the question asked—and move on. But sometimes our clients don’t ask the right question. Young attorneys need to ask themselves, “What is my client’s intent?” Once you understand your client’s intent, you should give a range of options that are legally and ethically supportable, and provide an assessment of those options including the risk associated with each. Sometimes that means explaining that something may be lawful, but for policy or other reasons is not a good idea. Also, if you know you are right, stand your ground. I’ve had clients, including general officers, try to bully me into changing an opinion they didn’t like. When I was a major, a three-star general once called to tell me he had just read my “asinine legal opinion.” I respectfully recommended he take it up with my four-star; he didn’t. The point is, we should work hard to find ways to enable our clients to achieve their intent, but again, in ways that are legally and ethically supportable.
What does “retirement” look like for the Coreys?
We are going back to San Diego where I’ll probably look for legal work. I am going to explore the landscape and see if there is some way I can continue to contribute.
OK, Sir, the floor is yours. What do you have to say in closing?
I came to love the Army and really appreciate the contributions judge advocates make toward accomplishing the mission; I feel incredibly lucky to have had the opportunity to serve as one. I know it’s cliché, but it’s true what they say: “it’s the people.” That is why I have loved serving. I have loved what I have done and love the Army JAG Corps; frankly, it was easy to draw my career out to thirty years. TAL
98 In Nazi Germany, a “Kreisleiter” was a “county leader” and was the highest Nazi Party official in a “kreis” or county municipal government. Today, Kreis Kaplitz is in the Czech Republic. In 1944, however, it was part of Germany, having been annexed as part of German-speaking
Sudetenland in October 1938.
99 Strasser, Case No. 8-27, at 6.
101 Headquarters, Third U.S. Army, Special Orders No. 229 (19 Aug. 1945). For more on war crimes trials at Dachau, see JOSHUA M. GREENE, JUSTICE AT DACHAU (2003). Strasser and Lindemeyer were apprehended and charged after the Army conducted an investigation into the deaths of the five airmen soon after 8 May 1945 (Victory in Europe (VE) Day). JACK R. MYERS, SHOT AT AND MISSED: RECOLLECTIONS OF A WORLD WAR II BOMBARDIER 298–99 (2004).
102 Strasser, Case No. 8-27, at 1.
103 Id. at 5.
105 Id. at 4.
106 Id. at 6.
107 Perhaps by Lindeman or one of the men accompanying him, although this is unclear from the record.
108 Strasser, Case No. 8-27, at 6.
109 EDWARD F. L. RUSSELL (LORD RUSSELL OF LIVERPOOL), SCOURGE OF THE SWASTIKA 39 (2002).
110 Id. at 40.
111 Strasser, Case No. 8-27, at 1.
112 A native of Saginaw, Michigan, Ford R. Sargent entered The Judge Advocate General’s Department after graduating from the 11th Officer Course held at The Judge Advocate General’s School, Ann Arbor, Michigan. THE JUDGE ADVOCATE GENERAL’S SCHOOL, STUDENT AND FACULTY DIRECTORY 42 (1946).
113 Strasser, Case No. 8-27, at 8.
116 While the official legal view of the Judge Advocate General’s Department was that “the rule in American municipal criminal law as to
reasonable doubt and presumption of innocence was not applicable as such to war crimes trials, in the absence of a suitable prescribed standard, the rule requiring that an accused be presumed innocent until proven guilty and that proof of guilt be established beyond a reasonable doubt was adhered to in war crimes trials” in the European Theater (emphasis added). REPORT OF THE DEPUTY JUDGE ADVOCATE FOR WAR CRIMES,
EUROPEAN COMMAND, JUNE 1944 TO JULY 1948, at 67 (1948).
117 Strasser, Case No. 8-27, at 8.
118 Id. Claude B. Mickelwait had a lengthy and distinguished career as an Army lawyer. Born in Iowa in July 1894, he later moved to Twin Falls, Idaho and graduated from the University of Idaho in 1916. He entered the Army as a first lieutenant in 1917 and served in a variety of infantry
assignments until obtaining a law degree in 1935 from the University of California School of Jurisprudence and transferring to The Judge
Advocate General’s Department.
With the invasion of North Africa in 1942, Mickelwait was stationed in Casablanca as Judge Advocate, Atlantic Base Section. He subsequently served as Judge Advocate, Fifth Army, in both North Africa and Italy. In March 1944, Colonel (COL) Mickelwait became Acting Theater Judge Advocate of the North African Theater of Operations. Two months later, he was the Judge Advocate of First Army Group in
England and, in July 1944, deployed to France as the Judge Advocate of the 12th U.S. Army Group.
In August 1945, COL Mickelwait was appointed Deputy Theater Judge Advocate of the U.S. Forces in the European Theater and in May 1946, he assumed duties as Theater Judge Advocate of those forces. Colonel Mickelwait returned to the United States when he was promoted to brigadier general in April 1947. He was promoted to major general and appointed as The Assistant Judge Advocate General in May 1954.
Major General Mickelwait retired from active duty in 1956. General Promotions—Army JAG, JUDGE ADVOCATE J., June 1954, at 4–5.
119 Short video clips about the military tribunal of Strasser are available at http://www.t3licensing.com/license/clip/49312041_033.do and
120 Transcript of Record at 8, United States v. Albert C. Homcy, CM 271489 (19 Oct. 1944) (on file with Regimental Historian).