General Practice, Solo & Small Firm DivisionMagazine
What Is Military Staff Legal Assistance?
BY Carlos O. Santiago and Jennifer C. Santiago
Practice of law in the armed forces is diverse, and generally a mystery to lawyers in the civilian sector. Many see movies and TV shows with depictions of military lawyers, but they are still surprised to hear about the everyday practice of military law.
Friends from law school are still amazed to hear about a typical day in the office, during which all the lawyers go on a 12-mile walk, carrying 45 pounds of equipment on our backs. This is just part of our practice. But not every day is so physically demanding. The practice of military law can also include flights in the commanding general’s helicopter, or escorting an under-secretary of the Army. Jobs, offices, and issues are different at every military installation. Each installation faces unique and complex challenges, dependent upon location, culture, branch of service, and population.
In the Army, lawyers are assigned to the Judge Advocate General’s Corps (JAG Corps), a specialty branch of the Army. The main mission of the JAG Corps is to provide legal services to commanders, civilian staff, soldiers, family members, and retirees. Legal services in the military are provided through four main divisions: Legal Assistance, Claims, Administrative Law, and Military Justice.
The Legal Assistance Division provides legal counseling and services to soldiers, family members, and military retirees. Legal assistance attorneys advise on matters of family law, consumer law, state and federal taxes, estate planning, landlord-tenant law, and immigration and naturalization law. Young Judge Advocates (JAs) are likely to start their JAG careers in this Division. They usually see seven to nine clients per day, and each client is sure to bring a new challenge. Legal assistance attorneys are often problem-solvers. Clients expect them to be well-versed in all states’ laws and Army regulations, and they expect the lawyers to be able to solve their problems, legal or otherwise.
Legal assistance attorneys generally do not provide in-court representation; however, most legal problems encountered by their clients can be resolved out of court. These include divorces, consumer law problems, and, less commonly, information on bankruptcies.
With increasing deployments of our armed forces in global military actions, providing legal assistance to those deployed overseas has become a new challenge for legal assistance attorneys. An example might be assisting with a client deployed overseas but in the middle of a divorce in Florida. (See "My Adventures with the Soldiers’ and Sailors’ Civil Relief Act," page 55.) Resolution might result in requesting a stay of the proceedings until the soldier returns from overseas.
Claims attorneys in the JAG Corps represent the interests of the United States in all types of claims. They provide legal advice to hospital personnel on issues such as medical malpractice, risk management, and standards of care; and they represent the government in medical malpractice claims. Claims attorneys also represent the government in affirmative claims to regain losses.
While in the installation environment, claims attorneys practice law in much the same way as those litigators in the civilian sector. Both in the field and out, they travel to locations of alleged property loss and act almost as insurance adjusters, determining whether or not a claim should be paid, and its value. However, when JAs are deployed to places like Bosnia or Kosovo, part of their job is to pay local civilians for damages to their land or property as a result of the movement of troops, tanks, and equipment.
Claims attorneys also determine the validity of and process claims made by soldiers when their personal property is damaged, usually in the process of moving from one duty station to another. Commonly referred to as the "pots and pans" side of claims, it is a heavily paper-intensive assignment often requiring extensive investigation. Claims is a great experience for litigation attorneys who favor the civil side of the house and provides an opportunity for young JAs to exercise their litigious nature.
Administrative law attorneys are the Army’s version of corporate lawyers. Like typical in-house counsel, they provide legal advice and services to commanders, staff officers, and civilian management officials. Areas of expertise include interpretation of Army regulations, environmental law, personnel law, labor law, fiscal law, contract law, and ethics. Administrative practice is quite diverse, including all types of legal actions on a daily basis.
The Army has a regulation to cover everything; as a result, an administrative law attorney needs to know where to find a variety of right answers. This means surfing the Internet for government publications sites as well as poring over the extensive regulatory guidance contained in every JAG library.
Several regulations written by different branches of the Army will often be on point on an issue. This becomes the administrative law attorney’s main job—sifting through the monumental amount of paper to determine which authority should apply to each issue. Sometimes no authority can be found in regulatory form, and "guidance" from the Departments of Defense and the Army must suffice. And while the easy answer to any question would be, "No, you can’t do that," it is the administrative law attorney’s mandate to find a way to accomplish the mission. The opinions requested of the JAG Corps in administrative law divisions are highly political and usually involve the local community. As a result, the actions of the lawyer must be offered with the command’s political interests as well as the local interests in mind, without compromising the integrity of the opinion. Looking at the big picture, however, the lawyer will find that the long-term accomplishment of the mission is usually more important to the commander than the short-term goals.
Contract, environmental, and labor law are three primary areas of practice for administrative law attorneys. Each is essential to operating an installation. From grass-cutting to garbage disposal, contracts on an installation make it run. Environmental law applies to the military, and often results in huge judgments against the government, sometimes tens of thousands of dollars a day. Because these fines are typically paid out of installation funds, the environmental law attorney becomes indispensable. Installation labor counselors on post handle all disputes between the government and the civilian workforce. These three types of JAs, like those in Claims, have the opportunity to litigate cases in federal and other courts.
Administrative law attorneys also provide legal advice on matters of international and operational law. This type of legal advice is key to conducting military operations in foreign countries. The operational law attorney is usually an administrative law attorney who has additional training in the area of operational law. Duties include reviewing rules of engagement, helping interpret status of forces agreements, developing and reviewing operations plans and, frequently, being fully integrated into the battle staff. Operational law JAs also teach law of war, code of conduct, and rules of engagement classes. While deployed overseas, operational law attorneys are indispensable to the commanders they serve; attending every meeting or briefing the commander attends and serving as the commander’s trusted advisor in all matters relating to deployment of military operations. The operational law attorney’s office fits neatly into a hard plastic case that contains a laptop computer, digital camera, scanner, and CD ROMs.
By the time judge advocates finish a tour in the Administrative Law Division, they leave behind them file cabinets filled with all of the opinions they rendered, often numbering in the hundreds. The opinions range from where and when the Army Band can play, or how the Army can conduct combat operations in light of environmental concerns, to who can travel on military aircraft. Administrative law is truly a way to get to know every aspect of the Army.
Military justice is founded on the same Constitution that governs law in the civilian sector, yet our rules, regulations, and caselaw focus on accomplishing the military mission. Our convenient "one-stop-shop" of criminal law is contained in a small, softcover book called the Manual for Courts-Martial (MCM). Much like its federal law counterpart, the MCM sets out the actions that constitute crimes in the military under the Uniform Code of Military Justice (UCMJ); details how evidence is admitted under the Military Rules of Evidence; and sets the procedural aspects of trials.
Many different types of lawyers make up the military justice system, including prosecutors (trial counsel), trial defense counsel, military judges, federal judges, and supervisors. Nonlawyer commanders at all levels, however, drive the system. While trial counsel and Staff Judge Advocates make the recommendations that guide the system, commanders make the final decision concerning the level at which a case will be disposed. Prosecutors act at the behest of the highest commander in each jurisdiction, unlike in the civilian sector, where prosecutors have extensive discretion once the case is presented to them. That being said, however, the opinions and recommendations of judge advocates are held in high regard by the command.
Many civilians believe our system of justice to be unfair and our soldiers guilty until proven innocent. Contrary to popular belief, however, the military justice system can be much more fair than its civilian counterpart, because lesser actions can be taken by a commander before a soldier is officially tried at a court-martial. In the military system, soldiers are "counseled" fairly often, both for their achievements and for their misdeeds. Such counseling is usually in written form and may become the basis for the next disciplinary step in the military justice system, the Article 15. This consists of a type of punishment that typically stays in a soldier’s file for only two years. Any level of commander can impose an Article 15; at each level there are different maximum punishments. A soldier may choose to "turn-down" an Article 15 and proceed to a court-martial; but the majority of soldiers accept Article 15s and the imposed punishment. These range from extra duty to forfeiture of pay or reduction in rank. There are also other resolutions to military misconduct, including administrative reprimands or discharges.
A court-martial is convened when a soldier’s criminal conduct rises to a level for which other forms of punishment are inadequate or in which conduct is so serious that it warrants prosecution. The military has four levels of court-martial and each has maximum punishments ranging from confinement of one month to the death penalty. For three of the levels of courts-martial, a military judge presides; juries, called "panels," are the fact-finders. The panels are comprised of senior noncommissioned officers and commissioned officers, chosen by the general officer assigned to that jurisdiction.
Most prosecutors in the Army occasionally put on civilian clothes and prosecute civilians who commit crimes on federal installations. These are tried in what we call "Magistrate’s Court," where civilian cases are disposed of before a federal magistrate judge, who usually travels to the installation once a month.
While the job of a trial counsel often means starting the day at 6:30 in the morning for physical training and often does not end until the sentence is announced late into the night, it is one that is sought after by young judge advocates. Working weekends and foregoing vacations is a small sacrifice for the experience gained in a tour as a trial counsel. Senior officers in the Army rarely get to try cases at the trial level. CL
Captain Carlos O. Santiago currently serves in the JAG Corps at Fort Polk, Louisiana, as the Installation Labor Counselor with additional duties as a Special Assistant U. S. Attorney and Operational Law attorney. His military awards include the Army Service ribbon and the Army Achievement Medal (with two oak leaf clusters). He wears the Aircraft Crewmember Badge and the Parachutist Badge. Captain Jennifer C. Santiago serves in the JAG Corps at Fort Polk as the trial counsel for the 2d Armored Cavalry Regiment, the 1/509th Parachute Infantry (Airborne) and the Operations Group, Joint Readiness Training Center. She currently is deployed with the 2d Armored Cavalry Regiment to the National Training Center at Fort Irwin, California, as the operational law attorney and Regimental trial counsel. Her military awards include the Army Service ribbon and the Army Achievement Medal (with one oak leaf cluster). The views and opinions expressed in this article are those of the authors and do not necessarily reflect official policy or endorsement by the Department of Defense, the United States Army, or the JAG Corps.