Guest post: Marc Warren on why JAGs are indispensable to warfighting forces

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Military lawyers – known as judge advocates or “JAGs” – live in especially challenging times.  As discussed in an earlier blog post, (“Is independent, nonpartisan legal advice from military lawyers on the chopping bloc?“) their most senior leaders – known The Judge Advocate Generals or “TJAGs” — were fired by the Secretary of Defense without cause, and the JAGs themselves were denigrated in a book by the Secretary, and those comments were reiterated at his confirmation hearing.  Congress has done virtually nothing to rectify these injustices.

For its annual awards dinner last May, the Judge Advocates Association selected my old friend, Marc Warren as their guest speaker.  As Marc explains, he was asked to share his “perspective on how special it is to be a Judge Advocate and how much the armed forces and the Nation need [JAGs] – even (and perhaps most of all) when [JAGs] may feel unappreciated and unfairly criticized.”

They could not have made a better selection.  A quick scan of his bio below will reveal what a truly amazing career he’s had.

As if all of that weren’t enough, what makes Marc especially well-suited to be the speaker is the profound injustice he suffered during his own career.  He relates that event (no surprise, he was the victim of politics), and counters much of the misinformation about JAGs propagated in certain quarters these days.  He closes with thoughtful advice for those still serving.

With Marc’s permission, here are his remarks (the bolding is mine):

Good evening. It is always a pleasure to be in the company of lawyers who dedicate their lives in service – to the armed forces, to the Nation, and to the Constitution.

I was asked to share my perspective on how special it is to be a Judge Advocate and how much the armed forces and the Nation need you – even (and perhaps most of all) when you may feel unappreciated and unfairly criticized. You see, I was a Soldier Once, and Young – and Naive.

I had a wonderfully satisfying career as an Army JAG. I loved the Army and the JAG Corps – and I still do. Looking back, there is very little that I would have done differently. But I was the senior SJA in Iraq during the invasion and occupation. The invasion was decried as unlawful, the occupation criticized as heavy-handed, and the Abu Ghraib scandal condemned (justifiably) but exaggerated for political reasons.

I was investigated, cleared, and selected for promotion to Brigadier General. My nomination languished in Congress for 2 years without a vote or hearing. Later, the chairman of the Senate Armed Services Committee told me that the whole episode had not been about me, it was about politics.

Since at least the 1968 Manual, Judge Advocates have been an integral part of not only military justice but of the operating forces. Since the Grenada invasion in 1983, the role of JAGs in military operations has increased dramatically under the rubric of operational law and now national security law.

For more than 40 years, Judge Advocates have been key parts of Assault and Forward Command Posts and have gone ashore in Somalia with Marine regiments and parachuted into combat with airborne units. They are the self-securing ground forces for Rule of Law, civil affairs, and claims missions. More than 20 Judge Advocates were killed or wounded in the Iraq and Afghanistan Wars.

Commanders commonly praise their JAGs and it is not unusual to read officer efficiency reports written by combat commanders who say that their legal advisor was the best officer in the unit. Former Corps and division commanding generals wrote that JAGS are force multipliers – they would rather give up 2 Brigade commanders than the SJA, and they would have traded an infantry battalion for a dozen young Judge Advocates in Iraq.

One thing that JAGs don’t do is write the Rules of Engagement. ROE are often called the commander’s rules for the use of force, but they are really the national command authority’s rules. In my experience, Judge Advocates in the operating forces commonly advocate to higher headquarters for more aggressive ROE than for more constraining ROE. No Soldier or Marine, or their JAGs, want a fair fight in combat.

Unfortunately, there is a dark underbelly to operational law and that is the false notion that the JAG is the Guarantor General – the one person in the command who is assumed to have total awareness and perfect knowledge, to be read on to all activities, and to have the duty to identify, resolve, and report all problems.

That logic can lead to a 3-star investigating officer testifying to Congress that “the JAGs” were the only people who had full knowledge of detainee abuse in Iraq. Or to the claim that “the JAGs” should have stopped DEI as a denial of equal protection or that “the JAGs” should not have prosecuted operators for homicides in combat. The fog of war in battle is nothing, as compared to the fog of politics in Washington, D.C.

With all of this professional risk, why would someone want to be a Judge Advocate? This audience doesn’t need to be reminded of the nobility of membership in the dual professions of law and arms, about the satisfaction derived from serving in a high-performing unit, or about the virtue in being part of an armed force that swears its oath to the Constitution. The plain truth is that you are an indispensable part of the fighting forces.

In World War I, the Judge Advocate General of the Army told the ABA that the JAG Department was not a silk-stocking law firm but built of Soldier-lawyers who had mud from the trenches on their boots. Years later, another Judge Advocate General called Judge Advocates, “Soldiers who happened to be lawyers.”

Regardless of how they’re described, JAGs know that service to the Nation is about sacrifice and selflessness, rather than personal success, and that duty, by its very sublime nature, is a moral and legal obligation fraught with the risk of adverse consequences.

Roman General and Consul Lucius Paulus wrote about this thousands of years ago: “Commanders should be counseled chiefly by persons of known talent whose knowledge is derived from experience; from those who are present at the scene of action, who see the enemy and who, like people embarked on the same ship, are sharers of danger.”

Judge Advocates do not impede combat effectiveness, they enhance it. JAGs have a statutory role in military justice for reasons that are beyond juridical. The independence and integrity of the military justice system is essential to combat readiness and critical to national security. Disciplined units inflict casualties on enemy combatants, undisciplined units take casualties.

Judge Advocates in the operating forces are proof of the Nation’s obligation to follow and enforce the law of war. Questioning whether that law is outdated or impractical is not new – it happens periodically, about every 20 years.

It is axiomatic that we sleep peaceably in our beds at night only because rough men stand ready to do violence on our behalf. Today, we would update that to “rough people.” But rough people cannot act for long or for good without controls or in a vacuum of law and authority.

As members of the profession of arms, JAGs know the horrors and excesses of war. As attorneys, they know the frailties of human character and morality. The law of war is a method to preserve discipline and humanity in battle, and a means to regulate violence in a place where it would otherwise be too easy to lose one’s morality and honor, and human dignity. For these reasons, U.S. Forces follow the law of war regardless of whether the adversary will do the same.

In the history of the military legal branches, JAGs have been unfairly maligned and scapegoated. Senior JAGs have been suspended, removed, and relieved. They have languished in assignment limbo or in the purgatory of promotion lists not acted on. One Army TJAG was court-martialed. Every decade or two, there is an effort to reorganize, civilianize, or consolidate the JAG function.

I don’t intend to diminish the effect that recent events have had on the military legal community, and on the officers involved and their families, who wonder how in the hell something like this could happen. But I can offer an answer: while it is not fair, it is politics. Samuel Huntington would correct me to say it is a paradox of military deference to civilian objective control.

Regardless, the indispensability of Judge Advocates and the resilience of JAG institutions ensure that they will live on. When I retired, Dana Chipman was selected in my stead. Dana went on to be TJAG. Obviously, the Corps and the Army did not miss a beat. Look around the room at the attendees who are not in uniform.

Most are retired Judge Advocates, many went on to be distinguished lawyer leaders in government, law firms, corporations, and academia. As for me, I turned out OK. I represent major airlines, logistics companies, and manufacturers. I’m trainable and picked up the aviation part. But most of what I do stems from my experience as a Judge Advocate.

Retired people in this room and elsewhere worked diligently with commanders for the last 50 years to build a culture of mutual respect among operators and JAGs. The fact is that compliance with the rule of law produces disciplined and more effective fighting forces.

Nobody except for a very few real-life versions of Courtney Masingale become Judge Advocates with the intent of being promoted to General or Flag officer. We joined to serve. I wish all of you still in uniform the best of luck, but I cannot bring myself to wish you a bland career spent in the shadows devoid of controversy or criticism.

Instead, I urge you to strive valiantly, do your duty, continue to take the hard jobs, and take care of our warfighters. Be competent, confident, courageous, and proud. You can’t control politics.

About the speaker

Marc’s 26-year military service record is astonishing. One bio pointed out, “it included assignments as the senior legal officer for Multi-National Forces Iraq, Combined Joint Task Force Seven, V Corps, 101st Airborne Division (Air Assault) and Fort Campbell, Kentucky, Joint Special Operations Command, and 11th Armored Cavalry Regiment. His military awards include the Distinguished Service Medal, Defense Superior Service Medal, Legion of Merit, and Bronze Star Medal (2), and the Master Parachutist, Pathfinder, Air Assault, and Canadian and German Parachutist Badges.”

Moreover, Marc was the ABA Outstanding Young Army Lawyer of the Year, received the Florida Bar Association Clayton B. Burton Award of Excellence, is in the University of Florida Hall of Fame, and was the Federal Bar Association’s “Transportation Lawyer of the Year” in 2012. In 2015, he received the Judge Robinson O. Everett Distinguished Life Service Award from the Judge Advocates Association.

Following his military service Marc became the chief counsel of the Federal Aviation Administration, and has been partner in two major law firms, and is currently an aviation counsel with Adams & Reece.  He is also a former executive director of the American Inns of Court Foundation, served as the Army Navy Club President in Washington DC, and is a previous President of the Judge Advocates Association.  His BA and JD are from the University of Florida, his LLM is from the Army JAG School, and his doctorate in juridical science (SJD) is from the University of Virginia.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!