Yesterday, in the wake of the Navy-Marine Corps Appellate Government Division’s unusual Motion to Clarify Position in Response to Questions at Oral Argument in United States v. Barry, No. 17-0162/NA (CAAFlog case page), the Deputy Staff Judge Advocate – Navy Lieutenant Commander Jonathan Dowling – offered an amicus curiae brief in which he argues that neither he nor the Staff Judge Advocate who advised the convening authority committed unlawful command influence.
The brief is available here.
The brief seems to be motivated by the following questions during oral argument at CAAF:
During argument, the Court asked questions about staff judge advocates violating Article 37, UCMJ; two that are especially relevant here. First, “[c]an the Staff Judge Advocate or Deputy Staff Judge Advocate unlawfully influence a convening authority under Article 37?” (Audio Recording, 8:24). And second, what’s to be done “in a situation like this where we have, basically, a collusion between the SJA and the Deputy SJA to keep their boss from doing what he wants to do and then on top of that, a sort of imprimatur added by the TJAG saying the same thing for all the same reasons, it is going to make the Navy look bad, it is going to cause an issue, it is going to cause a problem, even going as far to give incorrect advice? (Audio Recording, 23:38).
Br. at 13-14. Seeming seeking to protect himself from any finding of “a collusion between the SJA and the Deputy SJA to keep their boss from doing what he wants to do,” LCDR Dowling asserts:
what are the limits or how far can the SJA go into a discussion of applicable policies before they violate Article 37, UCMJ? Regardless of the left and right limits, the facts of this case do not support a finding that the SJA or the DSJA violated Article 37, UCMJ here.
Br. at 15. He also argues:
The record does not indicate a tone or argument that could be construed as coercive or an unlawful influence. The record indicates that the SJA and DSJA advice was well within the bounds expected of them and well within the constraints of the law in executing their legal duty to advise the GCMCA. As the timeline above demonstrates, the SJA Office was acting pursuant to RADM Lorge’s expressed intent and direction, albeit an intent that was influenced by his conversations with Commander, Naval Legal Service Command.
Br. at 19.
The brief is filed by civilian counsel representing LCDR Dowling, but nowhere does it – or the accompanying motion to file – state that LCDR Dowling seeks to appear in his personal capacity. Rather, the brief suggests that it speaks for all staff judge advocates in the Navy:
There is no National Association of Staff Judge Advocates, as there is a National District Attorney Association, the National Association of Criminal Defense Lawyers, or similar organization, to represent the broad interests of the staff judge advocate community. Here, Amicus addresses an issue that is important for staff judge advocates Service-wide.
Br. at 2.