I’m not bad. I’m just drawn that way.

Jessica RabbitWho Framed Roger Rabbit, Touchstone Pictures (1988).

There have been plenty of scandals in the military justice system over the past eighteen months. Examples include discovery issues (like BowserStellato, and Hudgins), judicial bias (like Kish, Williams, and Loiacono), prosecutorial misconduct (like Salyer, Frey, Hornback, and Porter), unlawful command influence by senior Government officials, the disintegration of high-profile cases (like Sinclair and Tate), and outright absurdity (like Sauk and the Pendleton search).

As we’ve written about these scandals, numerous (mostly pseudonymous) commenters have called for a heavy-handed response: criminal prosecution or professional discipline of the military attorneys involved.

I think such a response would be patently unfair.

Americans are right to expect that our military justice system will work better than it does. That is, as I wrote last year, a reason to take a hard look at the leadership within the military’s legal communities. After all, accountability is (supposed to be) king in military service:

Accountability. DoD employees are required to accept responsibility for their decisions and the resulting consequences. This includes avoiding even the appearance of impropriety because appearances affect public confidence. Accountability promotes careful, well thought-out decision-making and limits thoughtless action.

JER, § 12-401(d). But there is a big difference between a stupid legal argument and an unethical or criminal legal argument. Even the best lawyers make mistakes – sometimes big mistakes – and it is simply not unethical for an attorney to make a bad argument, or even to persist in that argument beyond the bounds of sensibility.

There’s no evidence that the many recent military justice scandals are the product of anything more than bad argument. They only look nefarious because they’re drawn that way. I’m willing to acknowledge some responsibility for that, as I’m doing much of the drawing through blunt analysis (often written with the benefit of hindsight). But so far as anything I’ve written might be interpreted as a call for suspension, disbarment, or criminal prosecution of military lawyers who make mistakes in the course of presenting a case, that’s not my intent.

We lawyers often use awfully strong language to describe a losing proposition:

When a decision is announced, even in very complicated cases where batteries of lawyers have bombarded each other and the judges for weeks with careful argument and high megaton precedent, the opinion solemnly says that the losing argument was without merit, or devoid of merit, or had no merit.

David Mellinkoff, The Conscience of a Lawyer 8 (West Publishing 1973) (emphasis in original). So maybe the calls for discipline are hyperbolic. They certainly should be. There are important lessons that all of us can learn from these mistakes. We should give the attorneys who made them a chance to learn as well.

22 Responses to “Let’s not build a gallows just yet”

  1. Charlie Dunlap says:

    Zach,
    Very, very thoughtful…and thought provoking.  I’ve often thought that part of the problem with military justice issues is the relative inexperience (and, frankly, youth) of those involved…due to many factors, including the nature of the military itself.
    Regardless, I very much appreciate your post because it suggests that CAAFlog is headed to the proverbial ‘next level,’ that is, a forum for more sophisticated (strategic?) analysis (al la Lawfare, Just Security, Opinio Juris, etc.) while still, of course, being tactically reactive as practitioners need.   

  2. stewie says:

    I haven’t seen a ton of people calling for suspension or prosecution or anything like that on here, nor have I read that.  Now, professional discipline I’ve seen a bit, but even that I would argue is still somewhat a minority.  I will say it CAN be unethical for an attorney to make a bad argument or persist in a bad argument.  It depends on the argument. I agree that the e-word is a break glass in case of emergency last resort that should only be used when ignorance (or even stupidity) cannot fit the bill.  I truly believe you should rarely assume bad intent when ignorance/stupidity work instead.
     
    And, I agree that inexperience (much of it self-inflicted by policies and practices from above) is almost always the root cause vice something involving ethics.
     
    Still, while we should be extremely cautious and understanding, we shouldn’t be afraid of using the e-word when it fits or in considering professional sanctions where appropriate.  There is a risk I think, a minor one but still a risk, that we are so overwhelming in trying to avoid that result (see e.g. the real hesitancy to find IAC at the appellate level that I’m not sure necessarily exists in the civilian world to the same degree) that we miss it when it does occur.

  3. The Silver Fox says:

    Kudos and, concur, Mr. Spilman.

  4. Phil Cave says:

    I don’t have any trouble with this thought at all. 
    I meet a lot of trial counsel each year.  Invariably they are different people, even when I visit the same installation within several months of a prior visit.  Although with the SVP overlay I’m seeing some of the same people on occasion.  The SVP usually are coming into the case when much of the pretrial work (and potential problems) are likely built in to the case (least that’s my perception).  Most are good people making the effort to do right by their client.
    In that vein, I agree that most of the trial counsel issues are due to inexperience.  That problem appears to be partly a problem of inexperienced leadership.  Something I predicted-as some may remember-in 1992 or 93 while at Code 45.  It was about then that the complexity of the cases was changing.  The “any lawyer” can do it answer to counsel experience ceased to exist then in my mind, and the need for really experienced counsel was a’changing.
     
    My biggest frustration is about discovery issues.  That’s what I usually say when asked about my experiences over the years.  Usually I have found that discovery can be resolved in a pragmatic way, without involving the court.  Pragmatism involves trying to resolve discovery issues off-the-record.  There is usually no need to litigate discovery issues if the “novice” trial counsel is willing to be pragmatic and cooperative.  In a case I just finished this week, I made a comment on the record, during an early Article 39(a), that the trial counsel’s approach to discovery was exemplary, and reflected how trial and defense can work to resolve problems without involving the judiciary (the judge agreed and complimented the trial counsel also).  I’ve made similar comments in many cases over the years in which I have applauded or complimented trial counsel on the record for being cooperative in resolving issues.  I do that to encourage the trial counsel, and hopefully to encourage others.
     
    I’ll give a thought on my last three Army 32’s.  In two of these 32’s, the trial counsel were very responsive to my pre-hearing production requests.  In both cases they voluntarily gave me “Brady” material (though “Brady” is not applicable at a 32).  In one of the two, I was also given what was termed MRE 404(b) stuff.  That’s called open discovery. 
    When trial counsel are unproductive, then I start to consider whether it is due to inexperience which can be resolved most times, or whether it is deliberate.  I put delayed discovery and rolling discovery into the category of potentially deliberate.  “We don’t have to give you that now,” might be a legal response, but that immediately colours how I suspect the case will proceed. 
    As Zach notes, a number of the cases blogged about with consternation relate to discovery issues.  
    I was taught in 1980, with my first Navy assignment—open discovery is how the Navy practiced.  As a trial counsel and senior trial counsel open discovery was my practice.  It made my life easier and helped in some cases to encourage guilty pleas.  (A particular effect of the new Article 32 is the inability of the defense counsel to use the 32 to educate the client in the strength and credibility of the prosecution case-live in action—as a precursor to encouraging negotiations.)
     
    You might not have noticed I didn’t comment on Zach’s SVC crisis post.  I have blogged about an SVC crisis here.
     
    So I’ll endorse Zach’s thoughts.
     

  5. DCGoneGalt says:

    Fair points as to the “E” word but many of the actions discussed on CAAFlog are taken as a chosen political overreaction to the “sexual assault crisis” and are the conscious and deliberate choice of military and JAG leadership and IMO are worthy of sharp-tongued humorous ridicule.  Rather than concerns of the “E” word I feel it is this humorous response that has people upset.  For instance, appellate strategy and decision-making are not the purview of young newbie CGOs.  The military chooses to make a public push to be ultra-aggressive prosecuting cases and then it seems to me that when those actions are criticized, IMO in a mostly legitimate manner, there is complaining that the criticism is out of bounds.  If the truth is a defense then the solution is to make the case an appellate filings public.  Truth is a defense, if it is on your side.  People in power (SJAs and TJAGs) doing things for political reasons that they surely know to be against their better judgment (recommending referral on a case that a 1L sees as not worth their time, choosing to certify every SA issue with a pro-defense ruling, signing off on briefings that appear to be satire to anyone paying attention) apparently don’t like having the “dissent” mentioned, especially when they surely know that many of their peers agree with the “dissent” but don’t date say so.  The “crisis” will pass when people feel comfortable to be honest and the need for satirical humorous commentary dies down and a measured response can be taken to reform and improve the military justice system.  But we’re not there yet.

  6. Isaac Kennen says:

    Zach said:

    commenters have called for a heavy-handed response: criminal prosecution or professional discipline of the military attorneys involved

    I’m sure it’s just due to my my inattention, but I don’t recall reading any particularized calls for prosecution or professional discipline.  In any case, to the extent that a commissioned officer wearing a uniform truly believes they’ve witnessed the commission a crime by someone subject to the UCMJ, I’d think they’d have an obligation (at least morally, if not legally) to do more than anonymously jump on the internet and call for someone else to act as accuser.  Beyond that, I have seen calls for public accountability, and those are appropriate.  Whether due to inexperience or ineptitude, failures by public servants when a citizen’s liberty is at stake should not be hidden from public view.  Those failures should be known, debated, and the public servants responsible should be held accountable.   All of that being said, the argument that 30-something year-old commissioned officers with advanced professional degrees should be sheltered from public criticism for their failures in the arena of justice because they are too “inexperienced” is dubious.  Every day we support commanders when they subject their junior enslisted airmen, soldiers, sailors, marines, and coasties to nonjudicial punishment or adverse administrative actions for minor departures from less important standards.  Surely “inexperience” is not truly a barrier to discipline.

  7. stewie says:

    While I agree with much of that Issac, your last bit I think ignores the relative complexities of a junior Soldier’s departure from, usually, fairly clear and easy to understand rules, versus the quite complex and subject to varying interpretations that is the world of the attorney.

  8. AnonymousJA says:

    Rule 8.3 is clear,

    A covered attorney having knowledge that another covered attorney has committed a violation of these Rules that raises a substantial question as to that covered attorney’s honesty, trustworthiness, or fitness as a covered attorney in other respects, shall report such violation in accordance with the procedures set forth in this instruction.

    Taking for instance Sayler, I fail to understand how this would not meet the mandatory reporting requirement under 8.3. Would anyone make the counter-argument on Sayler? Is this not “substantial” under the rules (“the term”substantial refers to the seriousness of the possible offense and not the quantum of evidence of which the covered attorney is aware.”) 
    The point isn’t to go down your list of examples that are not merely “stupid arguments,” but to understand what our obligations are under the rules. Comment (1) reads,

    Self regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of Rules of Professional Conduct. Covered attorneys have a similar obligation with respect to judicial misconduct. An apparent isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. 

    In our profession, ethics decisions are made by an appropriate body not individual attorneys. We do no favors to the profession by taking the decision making process on ourselves. 
    Mr. Kennan said it well:

    Whether due to inexperience or ineptitude, failures by public servants when a citizen’s liberty is at stake should not be hidden from public view.  Those failures should be known, debated, and the public servants responsible should be held accountable.   All of that being said, the argument that 30-something year-old commissioned officers with advanced professional degrees should be sheltered from public criticism for their failures in the arena of justice because they are too “inexperienced” is dubious.  Every day we support commanders when they subject their junior enslisted airmen, soldiers, sailors, marines, and coasties to nonjudicial punishment or adverse administrative actions for minor departures from less important standards.  Surely “inexperience” is not truly a barrier to discipline.

    I would be interested to hear Gen. Dunlap’s response to Mr. Kennan’s comments.

  9. Tami a/k/a Princess Leia says:

    There’s a difference between inexperience and incompetence, and unprofessional and unethical.  To me, inexperience and incompetence aren’t as bad, and actually increase an accused’s chances of getting acquitted.  However, being unprofessional or unethical need to be dealt with more severely, with those who supervise being held accountable as well.  I have not seen those who engage in the 2 “u’s” be held accountable.  Salyer, Bowser, Stellato, all examples of unprofessional and unethical misconduct, yet what happens to those who engage in this behavior.  Apparently nothing.  And in Salyer, they got rewarded.  Situations like that, I think harsher remedial action is called for.

  10. Charlie Dunlap says:

    AnonymousJA: 
    Thanks for the note.  Frankly, I’m puzzled by Mr. Kennen’s (it’s Kennen, not Kennan, right?) comments because I never said that anyone should not be criticized or held accountable.  I merely said that “part of the problem with military justice issues is the relative inexperience (and, frankly, youth) of those involved.” 
    In my mind, the path to a solution is to look for causes, and I think that youth and inexperience are real challenges in the military justice system these days.
    I am not sure where what Mr. Kennen was trying to suggest came from, but check out what I said yourself.  You’ll have to ask him for an explanation of where he got “the argument” he comments on. 
    Stewie does make a good point, and I found Phil Cave’s observations very thoughtful and interesting (as always!).
     

  11. Advocaat says:

    First, Prof. Dunlap, I thought CAAFlog was the next level (and congrats to your school’s team for knocking out my pick today).  Second, whatever one wishes to call the many shortcomings identified by Mr. Spilman in the cases he ID’d above, the bigger issue in my view is that they represent a serious leadership problem.  For example, what message do young prosecutors take away from the AF Government Trial & Appellate Division’s actions in Sauk regarding discovery?  Lack of accountability for such conduct is not unique to the military (link below).  I agree with the sentiment that we should be slow to build a gallows, but can we at least get a thumb screw?    
    http://www.propublica.org/article/who-polices-prosecutors-who-abuse-their-authority-usually-nobody

  12. Isaac Kennen says:

    The last portion of my comment wasn’t designed to single out any one person’s comments in particular.  What prompted my comment was actually Zach’s OP.  He starts the piece by describing the sort of government action that he asserts has led to “calls for a heavy-handed response:”

    [D]iscovery issues (like BowserStellato, and Hudgins), judicial bias (like KishWilliams, and Loiacono), prosecutorial misconduct (like SalyerFreyHornback, and Porter), unlawful command influence by senior Government officials, the disintegration of high-profile cases (like Sinclair and Tate), and outright absurdity (like Sauk and the Pendleton search).

    In the middle of his piece, he then categorizes those government actions as “mistakes”:

    Even the best lawyers make mistakes – sometimes big mistakes.

    Then, he disclaims:

    [S]o far as anything I’ve written might be interpreted as a call for suspension, disbarment, or criminal prosecution of military lawyers who make mistakes in the course of presenting a case, that’s not my intent.

    Then he offers his proposed alternative to those “suspension, disbarment, or criminal prosecution” for “mistakes”:

    [T]he calls for discipline are hyperbolic. They certainly should be. There are important lessons that all of us can learn from these mistakes. We should give the attorneys who made them a chance to learn as well.

    That line of thought – that serious defects in the military justice system should be categorized as “mistakes,” that the individuals involved in making those “mistakes” should escape accountability and publicity, and then, somehow, the rest of us will just glean a “lesson” from the mistakes of others.  That logic struck me as odd because generally, learning from the mistakes of others involves witnessing them being held accountable.  I’ve never heard anyone convincingly argue at trial that a conviction alone is sufficient general deterrence – because it’s not.  It’s the punishment that teaches the lesson to the offender and the witness alike.  Without punishment and publicity, there is no lesson for others to learn.  The argument also struck me as odd because it is inconsistent with the advice we as JAGs often give to commanders trying to handle less severe “mistakes” by their personnel.
    Then, in the comments, folks endeavored to offer explanations for the “mistakes.”  Inexperience was just one of those explanations mentioned.  My comment took no issue with that – of course inexperience plays a role in some of these errors. The question, I think, is whether the cause of the failure really matters.  Understanding the cause behind someone failing to meet the public’s trust is good.  That cause might be extenuating, it might even be mitigating.  That should temper the response.  But there should still be a response.  I don’t know that the existence of evidence in extenuation or mitigation should be seen as justifying no personal or public accountability at all.  

  13. Zachary D Spilman says:

    Isaac Kennen,

    In the interest of brevity, I didn’t offer a proposal for how to ensure accountability for these types of failures. But I quoted the JER’s discussion of accountability for a reason. “Accountability,” says the JER, “promotes careful, well thought-out decision-making and limits thoughtless action.”

    Well, the public has seen an awful lot of poor decision-making and thoughtless action in the military justice system over the past eighteen months (and you and I know about quite a bit more). For sure there needs to be a substantive and public official response. That hasn’t happened yet.

    But there’s a big difference between doing nothing, and doing something short of hanging ’em high.
    -z

  14. Neutron73 says:

    What I think people have a problem with is that, apparently not just in the judge advocate ranks, that failure is rewarded with plum duty assignments and the like, instead of being lessons in what not to do. 
    Instead, working hard, doing what the “system” asks you, and not committing glaring errors in judgment more often than not gets you the stick.
    It seems like the world have jumped in the parallel universe.  I don’t think anyone is asking for grave consequences to occur, but at least some……oh what’s that word again…. begins with “a”…….account….something…

  15. Monday morning QB says:

    With respect to those who think otherwise, it gets tiresome hearing the trite and oft-repeated mantra of “inexperience.” It is waived about like a talismanic incantation to excuse almost any type of conduct by attorneys.  I have practiced in the military and the federal system and I have to say the people I have seen in military courtrooms, trial and appellate, are, generally speaking, better at what they do.  I think military judges are better.  And if you want to talk about ethics, then we should talk about the supposedly very experienced attorneys who have railroaded innocent people in state court and seen them exonerated after decades.  See Texas vs. Michael Morton, for example.  Let me know how many cases like this we have seen in the military justice system.

  16. stewie says:

    Not to be glib, ok, a little glib, but I find it tiresome that every donut I eat requires an inordinate amount of working out to get rid of.
    That doesn’t make that fact any less true though. It doesn’t excuse any and all conduct, but it certainly excuses some.

  17. Captain Snark says:

    Young counsel will make mistakes wherever they are allowed to practice, state, federal, military.  I won’t assume we are far worse or far better as a whole than any other system/jurisdiction where you need new action/line attorneys.  Anyone who makes such generalizations should probably base that on more than just anecdotes.  The military’s (I was in the Army so I really can’t speak for all the services) approach to accountability is what I’d take most issue with.  The Army puts underqualified, inexperienced people into CoJ, SDC, STC, appellate and even Criminal Division billets, for reasons that are all about “needs of the Army” and not professionalism…rank, career progression, SJA favoritism, etc.  How many right-out-of-OBC FLEPs are tossed into the courtroom, “supervised” by a CoJ who likely had little to no MJ experience as a CPT/TC, then sent on to grad course where they leave, become CoJ or SDC or something, and on it goes.  Until one day that person is the TJAG and their whole career is about learning a new job every 1-2 years, building on a series of jobs where they never get good at anything.  That might work as a line officer, but for lawyers that’s borderline malpractice.  In the end, the JAG Corps exists to give the Army a patina of “legal” legitimacy from the courtroom to battlefield targeting decisions, but that’s all it is, a thin veneer over a pretty hollow core.  It may not have been that way before the GWOT, but now the “broadly skilled JA” notion only reinforces the deteriorating professionalism of the JAG Corps.  All these stories Spilman mentions in his post are symptoms of that.

  18. Charlie Dunlap says:

    Captain Snark,
    I agree there are challenges in the military justice system, but I would suggest that on balance, it is better than most civilian systems, to include civilian prosecutors and defense counsel. 
    Also, there have been a number of comments about discovery, but I might suggest that discovery in the military system is – on the whole – vastly better than in its civilian counterpart. 
    I recognize that asymmetry you point out viz-a-viz line officers, but the reality is that the armed forces is composed of young people, often dealing with very tough issues of all kinds.  Think of the lieutenant leading his – or her – first patrol in combat. 
    Still, it is the right thing to do to address the inexperience issue, but let’s see what we can do about coming up with solutions.  Punishing people for mistakes is one thing, but let’s also think about productive ways of improving training and so forth so as to avoid the need to consider punishment in the first place.  I think very, very few JASGs go into this business with the idea of being nefarious…

  19. stewie says:

    Cap’n Snark, don’t disagree with hardly any of that, which just highlights why inexperience is the real problem, and how some of these issues will be harder to fix until we approach something of a crim law track/specialty to increase the pool of experienced leaders and practitioners at all levels.

  20. Don Rehkopf says:

    @ Charlie Dunlap:   Charlie, while I agree with you on your last post about military discovery “rights,” as brother Phil notes, in practice there is an ever-creeping issue of “convictions at any cost,” where we have to waste countless hours (to include filing “Discovery Motions at the CCA’s) trying to obtain what Art. 46, and RCM 701, already provide for.  Back in the day, when you and BBB were prosecuting and I was defending, I don’t ever remember any serious litigation over “discovery” issues – which Phil categorizes as the “pragmatic approach,” as it was intended to be when Article 46 was enacted.
     
    However, I must disagree with your observations about civilian prosecutors and defense counsel.  Having practiced for many years in both civilian and military jurisdictions, in today’s world and considering the sizes of e.g., the Army and AF JAGC’s, the average civilian prosecutor and public defender are far more experienced than their military counterparts – at least in my jurisdictions.  If those lawyers start right after passing the Bar, they get assigned to City, Town and Village Courts handling misdemeanors and criminal violations and somewhere at about the 2 – 3 year point, if their supervisor feels that they’ve had a sufficient number of litigated trials, they will be moved to the non-violent felony sections of their respective offices. After another 2 to 3 years, the process is repeated for those getting “promoted” to doing violent felony and major drug cases.  So on average, those prosecutors and public defenders have 4-5 years of litigation experience, are supervised by someone with an average of 10 years of experience (or more), and have similar CLE and litigation training that the JAG schools sort of provide.  If you turn to the federal arena, here in the Western District of NY, neither the US Attorney’s Office nor the Federal Public Defender’s Office will give serious hiring consideration to anyone with less than 5 years of felony litigation experience. 
     
    As you may or may not know, I tried to get the JAG School at Montgomery to better utilize the resources that the AF JAGC had by tapping into some of the incredible litigators in the Reserves and Air Guard to be mentors, instructors, etc., who were AUSA’s, Federal Public Defenders, etc., but that never got any real traction for many different reasons.
     
    Finally, with friendly respect, I don’t honestly think that you can use the “young people” analogy when it comes to the practice of law in the military.  No young 0-3 JA is going to be given a multi-million dollar procurement bid protest case file, patent litigation file or even a major medical malpractice case under the FTCA being litigated in federal court — those files are going to go to specialized and experienced attorneys.  So, why then do JA’s with @ 2-3 years keep getting put into defense counsel billets for example, where clients could be facing decades if not life in prison?  Why does a procurement case merit an experienced/seasoned litigator, but defending someone who is charged with a forcible sexual assault isn’t? These are of course rhetorical questions that can only be resolved at the policy levels of the Services.  Why not, e.g., make the SDC’s civilian positions where there is the repository of information and experience to both lead and train the newer, less experienced military DC’s?
     
    This is a good dialogue and I personally am glad that you jumped into it. But, improving the “system” is going to require a mind-set readjustment where the effective practice of law rather than managing metrics to justify a promotion or assignment becomes paramount.  Not everyone with a Bar license is qualified mentally, emotionally and skill-set wise to be a good litigator as any civilian practitioner with any experience knows.  But, s/he may be a supersmart environmental lawyer, etc., and assigning them as Claims Officer or Legal Assistance Officer or Trial Counsel is simply not an efficient utilization of human resources, as Captain Snark suggests.

  21. TBecket says:

    “This is a good dialogue and I personally am glad that you jumped into it. But, improving the ‘system’ is going to require a mind-set readjustment where the effective practice of law rather than managing metrics to justify a promotion or assignment becomes paramount.”
    The military has been managing its personnel this way for decades (using a system pioneered by Bismarck).  It will be years (decades?) before this mentality is overcome.   Conservative institutions like the military don’t change easily.  Look how long the Brits sold commissions. 

  22. Don Rehkopf says:

    @ TBecket:  We [the US] also “sold commissions” until sometime in the late 1880’s.  Don’t take this wrong – and I don’t know what, if any, your military connection is, but my comment that you quoted was a bit of an inside joke for those of us who were AF JAGs.  In the mid-1990’s, some “brilliant” 0-6, looking for some project that would give him a “star,” decided that it would be a good idea for the then JAG Dept [this was before it re-organized as a Corps], to incorporate TQM principles into the practice of law because the Navy had done so. [For some background on TQM, check THIS out]. In theory, I suppose it could be adapted to the practice of military law, but in practice it was an abysmal waste of time, energy and resources – the very opposite of what it was intended to do.  For example, under TQM if someone came into a Legal Assistance office and wanted a Will drafted, a TQM “metric” might be that the goal of turning that appointment around to a finished product, was 7 days.  Like most military processing times (metrics), the process became more important than the practice.  No one checked on the quality of the Will or even if it accurately expressed the desires of the testator.  And for what should be obvious reasons, trying to incorporate such a system within the military justice system was simply impractical because each “case” has a life of its own.
     
    But, OERs and thus, promotions and assignments specifically looked at – not the quality of the work a lawyer was doing – but rather, was s/he meeting the artificial metrics some MAJCOM SJA had arbitrarily established?  Rather than look at established models such as the DoJ’s “Career Federal Prosecutors” program or the Federal Public Defenders’ counterpart, the JAG leadership continues marching to the irregular beat of by-and-large being a “general practitioner” or one size fits all.  General Dunlap is widely considered to be the father (if not Godfather) of Ops Law, at least within the AF.  But, that process evolved and matured over repeated deployments and considerable academic study. If you’ve never read his seminal essay, The Origins of the American Military Coup of 2012, written some 20+ years ago when he was a LtCol, take a few minutes to read it HERE.  Many of the leadership issues facing the military today, he foresaw in 1992. But as JA’s were assigned to combat “targeting teams” to ensure compliance with LOAC principles, again, that is not a billet that a junior 0-3 is going to be assigned to.
     
    My point here is that his Ops Law concepts for JA’s worked, because those lawyers were well-trained in LOAC principles, to include exercises of all types, e.g., conventional, asymmetric, etc., and were experienced FGO’s.  Why a similar road-map cannot be adapted to the military justice arena is the question that the JAGC leadership needs to address.