The impact of COVID-19 on current and future military legal practice

Last summer I asked a number of experts as to how COVID-19 is impacting military legal practice, and what it might mean for the future.  Today’s post is the first of what I hope will be a number of brief comments that will grapple with a few of the issues and challenges.  It is fantastic to begin the discussion with two superb military lawyers, Maj. Gen. Daniel J. Lecce, USMC, and Brig, Gen. Pat Huston, USA, the Assistant Judge Advocate General for Military Law and Operations.

First we’ll hear from MG Lecce, who, as the Marines’ top military lawyer, serves as the Staff Judge Advocate to the Commandant of the Marine Corps.  As you can see from the bio below, he’s had a fascinating and unique career.

Here are some of MG Lecce’s observations and experiences since the COVID restrictions were implemented during March 2020.

1. Teleworking works.  About one-fifth of my office staff has been coming into the Pentagon over the past two and a half months and we really haven’t missed a beat.  What has changed is we have far fewer in-person meetings (near zero) both up and down the chain, and we are executing no travel.  You get a lot of time back when not moving to and from meetings in the Pentagon.  People are working remotely and virtually and getting the job done.

2. What you lose, however, is true interpersonal contact, especially when conducting teleconferences when you can’t see the person with whom you conversing.  It is near impossible to “read” the person on the other side of the line and I believe very difficult to build relationships.

3. From a military perspective, teleworking diminishes camaraderie and team building.  This may be less important in rough-and-tumble D.C., but is far more important in our Fleet offices.

4. Regarding legal practice, we are now working to adapt the admin law and, to some degree, the military justice practice to current conditions.  On the admin law side, we are working to change Department of the Navy regulations to allow enlisted admin separation boards to be conducted remotely, or in virtual environment.  This is much more difficult to accomplish on the officer separations side where as statutory change is required.  This said, some officers are waiving the in person requirement just to move the process forward.

5. Military justice practice is much more difficult.  For the most part cases have been continued until after 30 Jun 2020 when DoD is scheduled to open up travel.  This is pressurizing the system.  We will be able to relieve the pressure by methodically moving cases through the summer, however COVID distancing requirements (e.g. counsel table, members box) will be difficult.  Other than the COVID restrictions, nothing has changed in military justice, nor is there any change proposed.

An Army lawyer’s perspective

BG Pat Huston also shared some thoughts.  He too has a storied career as his bio below indicates, and Lawfire^®readers may recall that he penned an essay in 2018 entitled “Future War and Future Law”

Here’s some of General Huston’s current thinking:

The entire legal community has rapidly adapted to this global pandemic with a greatly increased use of remote hearings.  This has been especially prevalent in civil cases and proceedings, and administrative boards and hearings.  Criminal prosecutions are different.  The prevailing rule is that video testimony can only be leveraged at a criminal trial if the defendant consents.  This difference is due to the Constitutional right to confront witnesses in criminal trials.

I predict this will change.  As attorneys, judges, and other members of society become more comfortable with remote meetings and testimony, there be a renewed push for video testimony in criminal trials.  Advocates will cite advances in high-definition video technology that now allow you to see witnesses in great detail:  to see sweat beading on their foreheads, to see their eyes roll or shift during questioning, or to see witnesses squirm in their chairs.  Audio will allow jurors to hear changes or trembling in witnesses voices, or to hear deep breaths and sighs.

Advocates will argue that video technology has evolved to the point where it is now sufficient to satisfy the Constitutional right to confront witnesses.  Some legislatures and appellate courts will agree, and we will see video testimony in criminal cases, without the consent of defendants.

As I say, I hope to publish some additional posts that will give us more insights as to how the pandemic might affect the practice of national security law.  Stay tuned!

Biography:

Major General Lecce received both his undergraduate degree and his Juris Doctorate (1987) from the University of Pittsburgh School of Law in 1987, and received a Masters of Law in Operational and International Law in 1997 from the US. Army Judge Advocate General’s School. He earned a Masters of International Public Policy from Johns Hopkins University School of Advanced International Studies, in 2007.  He participated in the United Nations’ Operation Stabalise (East Timor) and Operation Southern Watch (Persian Gulf).

Besides a variety of assignments as judge advocate, he also commanded the Marine Security Guard Battalion (United Arab Emirates) responsible for all Marine detachments posted at United States embassies and consulates throughout the Middle East and the Indian subcontinent.

BG Huston

Brigadier General Pat Huston is the Army’s Assistant Judge Advocate General for Military Law and Operations. He received his BS in Engineering from West Point, and began his his military career as an Army Ranger and helicopter pilot.  He earned a law degree from the University of Colorado, an LL.M in Criminal Law from the JAG School, and a Master’s of Strategy from the Army War College. 

BG Huston completed five combat tours in Iraq and Afghanistan, and was the General Counsel (Staff Judge Advocate) of three major defense organizations: the 101st Airborne Division, the Joint Special Operations Command (JSOC), and the U.S. Central Command (CENTCOM).  Prior to his current assignment, he commanded The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

The views expressed here are those of the authors alone and do not necessarily reflect the official position of US Marine Corps, the United States Army, or the Department of Defense.