Gen Mattis on law, lawyers, law school, and the commanders’ role in military justice

Former Secretary of Defense and retired Marine Corps general Jim Mattis made his views clear about the importance of a commander-centric military justice system earlier this year when he spoke at our 2021 Center on Law, Ethics, and National Security Conference. In addition, he had very interesting observations (and critiques!) about the law, lawyers, and even law school. 

A video of my full conversation with this extraordinary American is found here.

Today’s post extracts part of that conversation to focus on the role of the commander in the military justice system.  (My thoughts on the issue are in: “Don’t hobble the military justice authority and responsibility of America’s commanders.”)

Below is a lightly edited extract of the transcript (with some added headings in [brackets], and key parts bolded):

DUNLAP: What is your view of the role of the military commander in the military justice system?

And just to put this in a little bit of context, there are some very serious proposals these days to take military commanders out of the disciplinary process and make judge advocates the disciplinary authorities, in essence, making these decisions. 

How important is disciplinary authority to a military commander, especially a combat commander? And do you have any thoughts on those proposals?

GENERAL JIM MATTIS: Well, maintaining the military justice system as a commander-centric system is critical if you’re going to hold commanders responsible for the good order and discipline of the only organization…[that] really that has the authority to employ enormous violence in the name of the American people overseas. And if you start diluting that authority, then the responsibility dilutes too.

[The danger of weakening the military’s cohesion] 

And I can pretty much assure you that at that point, you will weaken the military’s cohesion and the sense of ownership by the commander, from the platoon commander, lieutenant, and company commander, all the way on up, over discipline. Like right now, if something goes wrong in your city, you turn it over to the city, the policemen picks up the person. They turn it over to the city prosecutor, and they deal with it. And when it’s over, life goes on.

In the military, the guy comes back to the unit or he stayed in the unit. And somehow– we’re a closed labor system. It stays right there. So the whole point is to keep this violence-capable unit under strict good order and discipline.

[Mattis on the Haditha case involving allegations of Marines killing Iraqi civilians, and his role as the court-martial convening authority]

And I think that Haditha is an example where for two years, nearly 80 investigators looked into this. There were over 9,000 pages of investigatory reports. And I checked in. And I was told I would be the central adjudicating authority for these.

So I began reading. It took me nearly six months. Every weekend, every evening, I would take out another– it came by the way in three large boxes. That’s how many binders there were. And I went through and I dog-eared them. And I was meeting with the lawyers, the prosecutors. And I’d circle questions, and get answers, and all.

And finally, I dismissed the charges on most of the lads. Under the conditions they were under, it was clear they had done their very best to sort it out. I was not as impressed by the battalion commander or the squad leader. And they had been– the battalion commander had been fired by my predecessor, rightly and all.

[Mattis emphasizing the importance of understanding the demands of combat] 

So if you’re not in a position where the commander feels that responsibility, if you turn it over to a legal system, I won’t even say “justice” because part of the justice that we have now, that we would lose if we did this, is you cannot criminalize every misconduct on a battlefield. You cannot do that. Those who have not closed with [the enemy] in close combat in the primitive, atavistic world of man-to-man combat cannot understand– cannot understand– what it’s like.

Oliver Wendell Holmes, Jr., is probably one of the most articulate associate justices we’ve ever had in the Supreme Court, deeply marked by his time as an infantry officer in the Civil War, wounded in action. And Oliver Wendell Holmes, at a meeting of veterans, people who have actually been there, the most articulate Associate Justice in our court, says that we have shared the incommunicable experience of war.

Now, if he cannot communicate it. I’m not going to be able to here today, Charlie. But you don’t want to take the combat arms officers, the commanders, out of the very decision about what constitutes a crime, when they are going to be the ones who initiate the court martial, and eventually leave the person when the court martial is over.

And right now, who was that –  the great defense lawyer, F. Lee Bailey, who, former Marine again – sorry about that, Charlie– but one of the greatest defense– civilian defense lawyers in history of our country. And he said he would rather defend an innocent person in a military courtroom than civilian because they have more rights. It’s in his book, The Defense Never Rests. It’s in the first couple of pages, Charlie. Not many pictures, so you air guys probably don’t– won’t be impressed.

DUNLAP: What qualities did you like, what qualities did you not like, and did you feel that the lawyers, especially the judge advocates [JAGs]  really knew enough about your business to be able to give you– meaning the war fighting piece of it– to give you the kind of advice that was really useful to you?

[Do we have a “legal” system as opposed to a “justice” system?]

GENERAL JIM MATTIS: What a great question. You know, in the Marines they’re line officers. We’ve had a lawyer, who knew foreign languages, won the Medal of Honor. They’re line officers [who] go through the training.

I never had a problem with my lawyers –  my JAGs. In fact, I thought they were very, very good at understanding the realities of being in the field, and the culture very well. There is a line in Michael Walzer’s book, Just and Unjust Wars, where he says lawyers to some degree– well, lawyers have created a paper world that too often fails those of us who live in a real world.

And I think this is one of the reasons people eventually think we have a legal system, and not a justice system because it becomes more and more – you kind of shop for which courts now. I learned this when I was secretary of defense. There are certain courts you take cases to…[t]here are certain courtrooms where the law that we know of is going to be interpreted differently than elsewhere.

[Mattis critiques law schools and urges lawyers take a broader view]

But I think that– what I needed from the lawyers, too, was a broader view. And I worry about law school as an education. It’s the only– when I think of all the professionals I deal with, generally speaking it’s the ones who come out of law school that seem to have narrowed their view of life and its complexity.

Whereas if I talk somebody who studied history– even the physics guys I would talk to had a much more expansive view of human nature it seemed to me. And I would have thought that law school would be where you would get– I’ve actually thought about going to law school. And I [was] going to go in and out of the Marine Corps real fast, before I fell in love with the sailors and Marines.

But what I really needed from them, especially as I got to the highest levels, SecDef– and by the way, I was blessed with the greatest lawyers I think in the world at the Pentagon. The general counsel and that team, they will not let your feelings get in the way. They’ll give it to you straight, no matter what.

[Need for lawyers with compassion, empathy, and competence]

But I needed prudential and legal advice mixed together.

You can’t have a legal system that lacks all compassion. You can’t be so passionate for the law, you don’t have any compassion for human beings, especially those that you see at the very edge of sanity, which is what a battlefield is. I mean, it’s an insane place…for those of you in my line of work, where the battle is very, very close combat

And so I think that the qualities I liked were those who could have both legal competence and empathy for this atavistic, primitive environment that our lads were in. And what I disliked were the lawyers who thought they knew better. I’ll give you an example.

[Example of a lawyer who worked with command to adjust rules of engagement to fit battleield realities]

When I was first getting ready as a one-star to go into Afghanistan, the rule of engagement was the enemy had to fire first. This had grown out of peacekeeping in the Balkans, and Mogadishu, and this sort of thing. And I said, I will not land under those rules of engagement.

If we could ambush the al-Qaeda and shoot him in the back, I’m going to ambush him and shoot him in the back. That’s all there is to it. I don’t know what movie this person saw. But that was the rule of engagement coming out of Tampa.

So the Fifth Fleet lawyer, Navy lawyer, came in to see me. And he was great. He said, what do you want the rule of engagement to be. And I told him. And he wrote it down. And he said, I’ll be right back.

And he went in. And boy, all hell broke loose in Tampa and in Bahrain, at fleet headquarters. And he got it changed is the bottom line. And we went into Afghanistan. And it was very clear. The president of the United States …declared the enemy hostile. We were to take them out.

And how we got into a position where lawyers were saying we had to be shot at first was something out of some bizarre fantasy land. And fortunately, we had other lawyers, who were able to restore some sanity. And then when the person wouldn’t buck, we took it up the operational chain. And they said, we told you to do what? Oh, my God. And Tampa immediately changed it.

But that shows the problem, if you have lawyers [who are out of touch with battlefield realities] — and I know [this person] meant well down in Tampa. But I mean, ‘it was kooky’ is the bottom line.

So I don’t like it when people are out of touch with battlefield realities [and this highlights] Michael Walter’s point about writing rules that don’t bear any resemblance to the world the rest of us live in. Back over to you, Charlie.

DUNLAP: You talked about some of the challenges that you’ve had with some of the lawyers. What could law students do or what should aspiring lawyers or people thinking about it, to have that wider view, other than come to Duke Law School and be one of my students? I’m sure that would be part of your answer.

[Mattis advice to law students: “minor” in history]

GENERAL JIM MATTIS: Yeah. Number one, law school is still a wonderfully arming school as to how you deal with life. If you think of life as a wonderful game, law –  I think law school gives you a lot. But I would suggest that you minor in history. And that you read broadly how other people dealt successfully or unsuccessfully with problems.

And understand that history is always fits and starts, that perfection is never achieved. I mean, we’re building a country here. It’s hard work. It’s noble.

Some people are brought up the idea, well, American is built. So why isn’t it perfect?  

Well, as a World War II Marine put it, America didn’t have to be perfect to be worth fighting for. Because it’s always getting better. It’s actually designed to get better. It’s designed to look at what’s going on and say that’s not good enough for a more perfect union. So we just keep working at it.

And to look back at history to say, well, we didn’t do the right thing in 1619 when we imported a defect from the Old World. You’re damn right, we didn’t. And 600,000 American died settling the issue in our Civil War.

So you keep looking at the ones, like Martin Luther King, Jr., you look at Abe Lincoln, you look at Washington. And you look at imperfect people trying to make it a more perfect union. And you use history as your guide, so that you know that people, in many cases, had to balance idealism with pragmatism. And they were never satisfied with where they got to.

But Hegel’s dialectic took over. And you had a thesis. You came up with an antithesis. And out of that came a synthesis. That’s not the end of it. That’s the new problem. So you come up with a thesis, an antithesis.

And you just keep going. And you don’t condemn those who think we’re going too fast. They want to slow down. And you don’t condemn those who want to go faster. You work it out between you.

Truman was asked, what– or who is it? Vandenberg, Senator Vandenberg of Michigan, right-wing conservative Republican, was asked how can you work with that son of a gun? It was worse than that, the word used, left-wing socialist, Truman? And Vandenberg said, when it comes to national security, politics ends at the water’s edge.

Well, now I’d say if all politics are local, politics need to end at the nearest stream’s edge. We need to work together in this country. And history will show us how to do it.

[The dangers of a ‘legalistic society’]

There’s nothing wrong with litigation and working things out in courts if you can’t mediate it and you can’t resolve it otherwise.

But we’re starting to paralyze things and turn into such a legalistic society that our very efforts to make a more perfect union are becoming impositions, instead of dialogues where we draw people together.

Look at how Mandela and de Klerk worked together after a hateful, hateful regime of apartheid is taken apart. Look at Mannerheim putting Finland back together twice in his lifetime. Look at Ulysses Grant, what he did to bring the country back together after that Civil War. It wasn’t like the war is over and everybody’s happy-go-lucky now. There were hard, hard feelings in what he did.

But there are examples in history that will make you more human if you spend time studying it.

[Mattis’ concluding comments]

For all you young people, remember, we’re building a country here. And we need every one of you guys and gals in there, rolling up your sleeves and doing it, and especially working with those you disagree with.

 Actually, search them out. Take them down for a beer or a root beer. Start working with those you disagree with. That’s what this country is built on.

And no one is beyond the pale. No one’s a socialist, or a communist, or a deplorable. Work together.

You know what it was like to be in the military.

This is a country that was based on everybody working together. So let’s get back to it.

And thanks for having me, Charlie. Good luck to all of you.

Remember, you can watch/listen to my full conversation with General Mattis here where he expands upon his life experiences and shares his thoughts on leadership.