Law and Ethics in Command Decision Making (2012)

[ILLUSTRATION OMITTED] MILITARY COMMANDERS OFTEN consult their staff judge advocates (SJAs), especially in the escalation of conflict. Seeking legal advice is increasing and has become prevalent, even in the battle space. (1) is also clear from the commanders ... that legal advice is essential effective combat operations in the current environment--legal advice is now part of the tooth not the tail. (2) Here, the legal profession and the profession of arms meet, evolving as how most effectively work together. This article explores relying on the law in weighing issues in commanders' decision making. Its objective is offer direction in using the law, while cautioning against over-reliance on it. What role does law play in society? WikiAnswers says: decides what is right or wrong in the view of the public. (3) Yet, the law is sometimes upheld as the guardian of morality and a panacea all problems. Witness the growing body of international law, domestic federal law, the growth of litigation, the growth of legal departments within governmental agencies and businesses, and societies' increasing reliance on the law solve disputes. (4) Understanding that their actions will finally be judged by standards set by law, commanders logically seek legal direction better assure themselves of legal compliance and avoid liability. the U.S. military establishment, this means greater reliance on the legal opinions and advice of staff judge advocates and general counsel. We should applaud the movement toward reliance on the law. It instills the occasion dialogue and analyze a situation, and then recognizes that a lawyer has a significant professional perspective offer, to better ensure that [the commander] understands the non-kinetic parameters of an action prior committing kinetic solutions. (5) With legal analysis, better decisions come out of discussions and consideration of alternatives, effects, and outcomes. a general way, we honor this expansion of the rule of law. Better be ruled by a common law than the whims of a dictator, as many people said most recently in the Arab Spring. The role of the SJA is a commendable component of our military efforts. Further investigation is necessary, however, more fully consider the limitations of this legal infusion. Let us examine: * Substitution of law for ethics. * Limitations of the legal view. * How the professional military ethic (PME) complements legal review. Substitution of Law for Ethics We hear the critical danger of substituting law for ethics in the refrain: it is legal, it must be okay! For the civilian lawyer, the experience in dealing with clients is almost invariably that, if an act is legally permissible, it is all right, and the client will do it without hesitation, irrespective of moral conflict. Edmond Nathaniel Cahn claimed that the law itself is the embodiment of our moral values and that the courts are the proper fora for moral adjudication. (6) But the refrain above exposes the incompleteness of the law. If not from a moral perspective, how else would we review the law? (7) Without moral review from outside the law, we lose much of our ability evolve and meet new challenges. Without an independent moral review, we lose much of our impetus change law and correct imbalances. What is legal is not necessarily moral, and the law does not address many moral issues at all. To illustrate the point, observe the great American pastime of avoiding taxes. The Code of Federal Regulations plainly prohibits professionals from basing opinions on the likelihood of audit (i.e., determining whether a client can get away with it). The Code states: In evaluating the significant Federal tax issues addressed in the opinion, the practitioner must not take into account the possibility that a tax return will not be audited, that an issue will not be raised on audit, or that an issue will be resolved through settlement if raised. …