* In the 1972 film, “The Godfather,” Sonny Corleone addresses his family attorney (“consigliere”) Tom Hagen, who wants to negotiate an end to the New York family feud, saying, “If I had a wartime consigliere … I wouldn’t be in this shape!”
“I will never say anything bad again about lawyers, particularly military lawyers. They were awesome. You could throw them at problems.”
Then-Major General David Petraeus, Washington, D.C., March 22, 2004
On February 10, 2009, the headquarters of the 34th Infantry (Red Bull) Division, Minnesota Army National Guard (MNARNG), was called to federal active service for the first time since furling its flag in northern Italy at the end of World War II. Mobilized for a 12-month tour to exercise command and control over approximately 15,000 U.S. forces in the nine southern provinces of Iraq, the division headquarters of approximately 1,100 personnel included 13 judge advocates, 2 warrant officers, and 12 paralegals. Since 9/11, 24 MNARNG judge advocates, all members of the Minnesota bar, have deployed overseas for a collective total of approximately 340 months. We’ve left behind private practices, the bench, prosecutor’s offices, and corporate and government positions. We’ve left our families. Since 9/11 we’ve served in support of the Global War on Terror along with 19,000 of our fellow Minnesota Guardsmen, many on multiple deployments, and are proud to contribute to the nation’s efforts.
The most frequent question we get from family, friends and colleagues is “So, what does a lawyer do in the Army anyway?”
The JAG Corps
The Judge Advocate General’s (JAG)1 Corps of the United States Army is composed of Army officers who are also lawyers and who provide legal services to the Army at all levels of command. There are nearly 1,500 judge advocates on active duty and almost 4,000 in the U.S. Army Reserve and the Army National Guard of the 54 states and territories. For those of us advising commanders, the practice involves the full range of legal matters encountered in government legal practice, including advising commanders on the law of war. Other roles for judge advocates include defense counsel and military judge.
No matter the level of command to which assigned, judge advocates have several roles. They are counselors, advocates, and trusted advisors to commanders and soldiers.2
The practice of law in the Army JAG Corps is built around six “Core Legal Disciplines.” They are military justice, international and operational law, administrative and civil law, contract and fiscal law, legal assistance, and claims.
If you picture an inhouse corporate counsel’s office, in uniform, you’ll have a pretty good starting place for discussion of the role of the judge advocate. We advise our military leaders—our CEO, board of directors, management if you will—at all levels of the organization to ensure legally sound decision making. Compliance with law and regulation, real estate, environmental law, personnel matters, contractual issues—all are matters with which the civilian general counsel would be familiar. We also act as claims adjusters to pay for noncombat damage we cause (administration of the Foreign Claims Act) and run our own criminal disciplinary process for our employees (courts martial under the Uniform Code of Military Justice). We provide civil legal assistance to all of our employees for their personal legal concerns such as wills, powers of attorney, debtor/creditor issues, and the like. During operations, we advise commanders on targeting, treaties, international conventions, and rules of engagement.
In the current efforts in Iraq and Afghanistan, judge advocates play a role in what is called the “rule of law” mission. We’ve worked in the areas of “courts, cops and corrections” to encourage the development of professional institutions consistent with democracy.
JAG Corps History
General George Washington founded the U.S. Army JAG Corps on July 29, 1775, with the appointment of William Tudor of Boston as the first Judge Advocate General. General Washington asked the Continental Congress for the appointment of this position to assist with the administration of military justice and courts martial in the Continental Army. Since that beginning, the primary mission of the JAG Corps has remained assisting commanders with maintaining discipline, the foundation of an effective and professional fighting force. With more than 5,000 active and reserve judge advocates today, the U.S. Army JAG Corps accordingly considers itself not only one of the largest, but the oldest law firm in the country.3
But “the firm” did not achieve this size overnight, nor was its focus confined to its primary mission. At the end of the Civil War, Army lawyers participated in significant events such as the Lincoln assassination trials and the trial of the commander of the infamous Andersonville prison camp.4
In World War I, the Corps expanded from 17 to 426 judge advocates. During this conflict, Adam Patterson, a well-known civil and criminal attorney in Chicago, became the first African-American member of the Corps when he was appointed by General John Pershing in 1918.
In World War II, the JAG Corps expanded exponentially. After the attack on Pearl Harbor, the staff judge advocate to the Hawaiian Department became the executive to the military governor and promulgated orders transitioning the island from civilian to military government. World War II also brought the first female judge advocate. Phyllis Propp-Fowle of Jasper County, Iowa was commissioned in May 1944, deployed to Europe, and became the first and only female judge advocate to serve overseas in World War II. At the end of the war, judge advocates conducted the prosecution of Nazi Party leaders at the International Military Tribunal at Nuremberg.5
In Vietnam, the JAG Corps focus began to expand from the traditional military justice role to determining the status of captured enemy personnel and investigating and reporting war crimes. Judge advocate responsibilities also expanded to include foreign claims, international law, and efforts to help reform the Vietnamese judicial system. In a precursor to deployments in the coming decades, judge advocates were forward-deployed to outposts and fire bases throughout South Vietnam.6
After the Vietnam War, the JAG Corps continued to evolve beyond its historical focus on military justice and peacetime legal issues. The murders at My Lai led to investigations and courts-martial. The My Lai case contributed to an increased awareness of the need to ensure that the U.S. military complied with the law of war. This in turn led to a new role for the JAG Corps. In 1974, the Department of Defense (DoD) issued a directive tasking judge advocates with ensuring that all U.S. military operations strictly complied with the law of war. Today judge advocates are integrated at all levels of operational planning and execution.
The JAG Corps Today
The bottom line mission of the United States Army is to fight and win the nation’s wars. The Army JAG Corps’ official mission statement today is to “provide proactive legal support on all issues affecting the Army and the Joint Force, and deliver quality legal services to soldiers, retirees, and their families.”
Insignia of the Army Judge Advocate General’s Corps. The insignia worn by all uniformed members of the Corps reflects the many components of the Corps’ mission: the pen denotes the recording of testimony; the sword, the military character of the Corps’ mission; and the wreath, the traditional symbol of accomplishment.
While succinct, this statement does not begin to capture the breadth and depth of the roles and responsibilities of the JAG Corps in today’s operational environment. During peacekeeping operations in places such as Haiti and the Balkans in the 1990s, the complexities of humanitarian relief, nation building, and providing security provided fertile opportunity for judge advocates to assist commanders with navigating the complexities of international law, multinational operations, and congressional directives. In Iraq and Afghanistan the picture became more complex as the military was tasked with defeating insurgencies while at the same time providing or reconstructing essential services and building fledgling democratic institutions. The men and women we send in harm’s way today may be delivering school supplies and engaged in combat, sometimes on the same mission.
Judge advocates continue their traditional roles of supporting commanders in the administration of military justice and assisting soldiers with personal legal issues. At the same time, the enormous amount of resources being expended fully employs our lawyers at contract matters and ensuring compliance with the fiscal directives of Congress. In today’s wired world, all of this happens under the microscope of the 24/7 news cycle and international media. Sound, defensible and transparent operations in compliance with law are critical to the success of America’s foreign policy efforts. As one general officer said to 34th Infantry Division (34th ID) judge advocates as they prepared for a deployment in 2003, in today’s conflicts he wanted his “JAG” at his right hand and his public affairs officer on his left.
Prior to entry into the JAG Corps, all Army judge advocates must have graduated from an ABA-accredited law school and be admitted to practice law by the highest court of a state or federal district. Most new judge advocates have no prior military training or experience. Entry training into the JAG Corps is composed of four phases: 12-day military orientation course, 10½-week judge advocate basic course, four-week direct commissioned officer course, and seven-week basic officer leader course. After that, ongoing professional development is also provided.
Judge advocates receive their initial and continuing legal education and professional development at the Judge Advocate General’s Legal Center and School (TJAGLCS) located at the University of Virginia in Charlottesville. The commandant of the school is authorized by Congress to award a Master of Laws degree and this is the only federal institution to have American Bar Association accreditation as one of America’s law schools.
Minnesota’s 34th Infantry Division
Minnesota has a fascinating, honorable and significant military history that is often overlooked, perhaps due to our lack of any active-duty installations since the closing of the Duluth Air Force Base in the early 1980s. Activated Navy reservists from St. Paul, for instance, were the first to fire on Japanese forces at Pearl Harbor on December 7, 1941. The gun they used to fire on a Japanese mini-sub sits somewhat forlornly today next to the Veterans Service Building on the grounds of the Minnesota State Capitol complex.
The 34th Infantry Division traces its lineage to the famous 1st Minnesota Infantry Regiment, which is today the 2-135 Infantry Battalion headquartered in Mankato. The 1st Minnesota was the first to answer President Lincoln’s call to the states for help at the outset of the Civil War. It fought in the battles of Bull Run and Antietam, among many others. The regiment is best known for its actions at Gettysburg on July 2, 1863, when it made a heroic charge to prevent a breach of the Union lines on Cemetery Ridge. Many credit that charge with saving the Union that day. Of 262 1st Minnesota soldiers present for duty that morning, only 47 answered the roll at the end of the day. A statue of the commander of the 1st Minnesota, Col. William Colville, was dedicated by President Calvin Coolidge, with 20,000 dignitaries and attendees, in Cannon Falls in 1928. The regimental flag carried into the fray at Gettysburg can still be seen in the Rotunda of the State Capitol in St. Paul. Col. Colville—wounded three times at Gettysburg—was a lawyer from Red Wing.
The 34th Infantry Division was formed in 1917 from National Guard units from Minnesota, Iowa, North Dakota and South Dakota and sent to Camp Cody, New Mexico for training. The division takes its nickname from the shoulder sleeve insignia selected after a design contest at Camp Cody. Marvin Cone of Iowa designed the insignia of a red steer skull over a black Mexican water jug called an “olla”.
Six Core Disciplines
Today, the practice of law in the U.S. Army JAG Corps is built around six core legal disciplines: military justice, international and operational law, administrative and civil law, contract and fiscal law, legal assistance, and claims. The rule of law is an additional focus of the Corps concern.
The division military justice team is responsible for the oversight and administration of the Uniform Code of Military Justice (UCMJ). The purpose of military justice is “to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishments, and thereby to strengthen the national security of the United States.”7
The international and operational or “OPLAW” team advises the division command team around the clock regarding the rules of engagement (ROE) and international law of armed conflict during deliberate operations and in response to attacks. They provide advice and support on the application of international agreements, U.S. and international law, and the body of domestic, foreign, and international law—specifically the law of war—that directly affects the conduct of military operations. They ensure the implementation of the DoD Law of War program and participate in all operational planning groups.
Operational lawyers in the 34th ID in 2009 spent a significant amount of their time helping navigate the U.S.–Iraq Security Agreement and its bottom line that operations be conducted “by, with, and through” the Iraqi government. They also advised on detainee issues. The war has progressed beyond the combat-intensive operations of previous years. With dramatic declines in violence, the adoption of the Security Agreement, and the plan for withdrawal of U.S. forces by the end of 2011, day-to-day operations have evolved to stability and support operations, which are arguably more complex and nuanced.
Administrative law includes advice to commanders on military personnel law, government information practices, investigations, relationships with private organizations, military installations, regulatory law, and government ethics. The drawdown of United States forces in Iraq and subsequent closing of bases provides much work for these attorneys, whether in returning property that has been used by U.S. forces to Iraqis, transferring property deemed excess to the Government of Iraq, or accounting for lost or damaged property. The work also involves overseeing the proper conduct of command investigations. Investigations into Abu Ghraib, Haditha, and the death of Pat Tilman are high-profile examples of the types of investigations the military conducts. More typical command investigations are the routine inquiries into misconduct, lost or damaged property, or accidents.
Administrative law also encompasses the practice of fiscal and contract law. Contract law in the military concerns itself with the acquisition of goods, services, and construction. Fiscal law is concerned with the funding of military operations. Media and congressional attention to the issue of Iraqi reconstruction in the past few years has highlighted the sensitivity of this subject. From May to December of 2009, the 34th ID administrative team reviewed more than 619 spending packages totaling more than $280 million. This included spending on the operation and maintenance needs of the Army as well as Iraqi reconstruction and humanitarian assistance projects.
Unlike many areas of law that generally allow a course of action if it is not otherwise prohibited by law or regulation, the expenditure of taxpayer money is specifically prohibited by the United States Constitution unless specifically authorized by law.8 The federal law known as the Anti-Deficiency Act provides criminal and civil penalties for expenditures in excess of amounts appropriated by Congress.9 The act also prohibits the obligation of funds prior to their appropriation by Congress.10 Commanders authorizing expenditures are therefore keen for solid legal guidance.
Legal assistance matters are the responsibility of the client services team, that runs the legal assistance program for all U.S. soldiers and DoD civilians as well as eligible DoD contractors. The mission of the legal assistance program is to assist those eligible persons with their personal legal affairs quickly and professionally.11 This is among the JAG Corps’ most important functions as it allows the soldier to concentrate on the mission at hand. Although legal assistance attorneys typically are not authorized to provide in-court representation, they provide legal counseling and correspondence in family law, landlord-tenant law, consumer protection matters, estate planning, real and personal property, immigration and naturalization matters, taxes, and civilian and military administrative matters such as assistance with preparation of rebuttals to administrative reprimands or findings of financial liability for lost or damaged government property.
The client services team also manages the Army claims program on behalf of the Secretary of the Army, processing and adjudicating personnel claims and foreign claims, among others. Personnel claims involve claims for damage to property of soldiers and civilian employees arising incident to service. Foreign claims are torts alleged against the Army or DoD personnel acting within the scope of their employment. Adjudication of foreign claims is provided for in federal law by the Foreign Claims Act. The act provides for the appointment of one-member and three-member foreign claims commissions (FCCs) at the operational level. One-member FCCs have settlement authority of $15,000. Three-member FCCs may settle claims up to $50,000. FCCs investigate, adjudicate and settle these non-battle damage claims against the United States. This is one of our more interesting practice areas as it involves regular interaction with the local populace.
The rule of law effort deserves special mention. Although not a new focus—the Army JAG Corps in the Vietnam War pursued efforts to improve Vietnamese civil and military justice systems—the current effort in Iraq places critical emphasis on developing civil institutions that adhere to the rule of law.12 Although there is no universal agreement on what constitutes the “rule of law,” current Army JAG Corps doctrine defines it as “a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights norms and standards.”13 The senior U.S. military leaders in Iraq consistently point to the rule of law mission as a top priority and key component of the current military campaign, recognizing that a fair and just legal system is vital if Iraq is going to achieve stable self sufficiency.
The practice of law in the Army is complex and challenging. It has deep roots in our nation’s history and the Army Judge Advocate General’s Corps has a rich and distinguished heritage. It is a highly rewarding practice. We’re proud of our history and our role. And like our fellow soldiers and officers, proud of our status as citizen-soldiers. And as members of the Minnesota Bar, you can be proud of each of our citizen-lawyer judge advocates for honorably fulfilling their role as advisors, counselors, and advocates to the commanders and soldiers of America’s Army.
Honoring Their Service
In June, 2010, the Minnesota State Bar Association honored the attorney members of the 34th “Red Bull” Infantry Division of the Minnesota Army National Guard (MNARNG) with the 2010 Professional Excellence Award in recognition of their service in Iraq. But the “JAGs” have seen service in multiple overseas locations since 9/11. In the last nine years, 24 MNARNG judge advocates—all members of the Minnesota bar—have deployed overseas for a collective total of approximately 340 months. These included:
- Bosnia-Herzegovina. From July 2003 to April 2004, six judge advocates deployed with Task Force Eagle in support of Operation Joint Endeavor, the NATO-led multinational operation that carried out the Dayton Peace Accords of 1995 that ended the civil war in the Balkans. Task Force Eagle judge advocates played a significant role in advising commanders and staff on the provisions of the Dayton Accords. The SJA was Lt. Col. Steve Lokensgard, then a staff attorney with Allina.
- Kosovo. From October 2003 to September 2004, five judge advocates deployed with Task Force Falcon in support of Kosovo Force (KFOR), the NATO led international force responsible for establishing a safe and secure environment in Kosovo under United Nations mandate in 1999.
- Iraq. From September 2005 to August 2007, three judge advocates deployed with the 1st Brigade Combat Team of the 34th ID (1/34). The primary mission of the 1/34 was the security of logistical convoys traversing the main highway from Kuwait to Baghdad and points onward. It suffered 20 killed in action during some of the worst insurgent and ethnic violence. Scheduled to return home in early 2007, the 1/34’s tour was extended and became the longest continuous deployment of any United States military unit during Operation Iraqi Freedom. In a nod to rural Minnesota, its JAGs hailed from Minneota, Fairmont, and Waseca.
- Iraq. From June 2008 to June 2009, two judge advocates deployed with the 34th Combat Aviation Brigade of the 34th Infantry Division. The unit provided helicopter aviation support throughout Iraq from Balad Air Base north of Baghdad. The brigade’s command judge advocate is a professor at Southwest State University in Marshall.
- Iraq. On May 20, 2009, the 34th ID headquarters took to the field to assume command of the forces in southern Iraq designated as Multinational Division-South (MND-S). Under the command of Maj. Gen. Rick Nash of New Prague, the 34th ID headquarters and its Special Troops Battalion provided command and control to approximately 15,000 Active, Guard and Reserve soldiers.
The 34th ID OSJA during deployment to Iraq in 2009 comprised 13 judge advocates, 2 warrant officers, and 12 enlisted paralegals. In the four brigades of MND-S the OSJA oversaw an additional 11 judge advocates, for a total of 24 uniformed lawyers supporting the 15,000-strong division.
While space does not permit acknowledging the contributions of each individual participant, the following deserve special mention:
Our military justice team of two lawyers and two paralegals was led by Lt. Col. Brian Rotty (William Mitchell, ‘92), executive director of MMSI at the Mayo Clinic in Rochester. For the first half of our deployment the team was headed by Lt. Col. Fred Karasov (William Mitchell, ‘83) of the Hennepin County bench.
Our operational law (OPLAW) team was headed by Maj. Darrin Rosha (U of M, ‘96), whose private practice is in Mound.
Administrative and civil law issues, including fiscal and contract matters, were handled by Maj. Greg Uhl (William Mitchell, ‘00), who practices with Uhl Law Offices in Eagan. Greg, with the help of two judge advocates and two paralegals, managed one of our busier teams.
Our client services team was headed by Capt. Catherine LaRoque (U of M, ‘03), a civilian equal opportunity specialist with the State of Minnesota Department of Military Affairs.
Throughout our deployment, our rule of law team, headed by Lt Col. Mike Tow (U of M, ‘90) of Wollschlager, Tow & Ringquist, P.A., Fairmont, worked with judges, lawyers, prosecutors, and law enforcement members in one-on-one visits, meetings and seminars on judicial-police cooperation, forensic evidence, and court administration.
Maj. Tom Hagen is the Deputy Staff Judge Advocate for the 34th Infantry Division. He is a graduate of William Mitchell College of Law (‘96). He enlisted in the MNARNG while attending the University of Minnesota-Duluth in 1989. He previously deployed with the MNARNG to Bosnia in 2003-04 and Iraq in 2006.