Lawyering for Uncle Sam When He Draws His Sword

For 228 years, uniformed lawyers have been providing legal advice to commanders. They have used their legal skill, their sense of social organization, and their understanding of military history and tradition to assist in the formulation of sound discipline, governance, and policy. The unique contribution martial law has made to our country's dedication to the rule of law is a heritage worth celebrating. The purpose of this essay is to discuss this heritage so that one may appreciate the current state of the practice of military law.1 It includes an exploration of the theoretical conflict between law and armed force; an explanation of how the Defense Department is organized to render legal advice; a history of American military law's contributions to domestic and international law; and a reflection on how this heritage should be taught in the classroom.2 I. LAW AND ARMED FORCE When the subject of the law of war arises during a general conversation, one often hears comments such as "Law of War-How oxymoronic!" What follows is usually a statement that suggests war is without law, rules, or restraint. Often these comments come from those well versed in criminal procedure and civil liberties, who yet fail to consider that lessons learned involving use of force by the police are applicable to the military as well. Such remarks suggest an absence of reflection about the common ground between law and armed force. What follows is intended to give some perspective on the role of law in armed conflict. The relationship between law and armed force can best be seen by an examination of the differences and similarities these vital institutions each play in any ordered society.3 An examination of each in its extreme brings these similarities and differences into sharp focus. The differences at first seem stark. Law and armed force compete for authority. The law glorifies systems (means) while armed force prizes results (ends). Armed force would do away with an allegedly inefficient, corrupt, unresponsive system and replace it with effective, cleansing force. Law, on the other hand, seeks to avoid the apparently inevitable violent consequences of the results approach: the loss of property, freedom, and life. Furthermore, law and armed force may each seem to have limited tolerance and respect for the institutions and doctrine of the other. Armed force fears that measures necessary for military success will be outlawed. Law fears the loss of jurisdiction-the loss of control. Other contrasts seem equally stark. Law restricts power, including its own, while armed force uses power as a tool. Law focuses on means (due process), while armed force demands mission accomplishment. Law seeks to eliminate violence; armed force employs violence. Law seeks to minimize disruption and instability while armed force inevitably creates and even relies on disruption and instability in an attempt to impose a sovereign's will. Yet both functions are similar. Both deal with matters vital to the state. Law seeks to civilize and organize people, while armed force provides protection when the system breaks down. Thus, both aim to achieve the hallmarks of an ordered society: stability, safety, and security. Law and armed force each seek the preservation of the state, although by very different methods and means. Could any worthwhile society exist in the absence of either function? Can one imagine any civilized society in which there would not be tensions between these two functions?4 II. LAWYERS WITHIN THE DEPARTMENT OF DEFENSE The Department of Defense uses three titles for lawyers: general counsel, staff judge advocates, and legal advisors. These titles are important because with each goes a distinct function. First, general counsel are mostly civilians who work for the various Secretaries (Defense, Army, Navy, Air Force) or who work in specialized areas (typically not related directly to warfighting). …