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American Bar Association - Defending Liberty, Pursuing Justice

SUMMER 2010

Vol. 6, No. 4

PRACTICE MANAGEMENT

 

The Practice of Law in a War Zone

By Matthew Goetten

. . . leaving today with apprehension and excitement. Miss my family already. Wondering what the next year will bring, why do we need so many lawyers, and what usefulness a small-county State’s Attorney will have to the Army in Afghanistan?
—Matthew J. Goetten Journal Entry, December 26, 2008

After nine months in Afghanistan the first two questions were asked and answered. As for the last, well . . . contact my chain of command.

On December 26, 2008, I said goodbye to my wife and two children and my staff at the Greene County State’s Attorney’s Office. Later that day I reported to Ft. Benning, Georgia, to be deployed to Afghanistan with the Illinois Army National Guard in support of Operation Enduring Freedom. A guardsman for nearly 10 years, this—one of the single largest deployments in my state’s history—was to be my first deployment in support of combat operations. I had spent the previous year training with the 33rd Infantry Brigade Combat Team in Urbana, Illinois, in preparation for my transition from Greene County State’s Attorney to Army Judge Advocate. It was a journey I would make with the assistance of other Illinois State Bar Association members.

Alexander the Great, Genghis Khan, the British Empire (three times), and most recently, the Soviet Union, each with arguably one of the greatest armies known to man in their respective moments in history, each broke themselves on the rugged terrain and disjointed tribal affiliations in Afghanistan. Military scholars will no doubt differ in their assessments of what makes the United States campaign different—but how many lawyers did Alexander the Great have at his disposal? How many Illinois lawyers?

I am not sure about the number of lawyers employed by any of those armies, but I am not going out on a limb to suggest that zero were licensed in Illinois. Perhaps therein lies the advantage, at least recently. OK, there are admittedly other advantages to being a member of the greatest military the world has ever known but . . . I was deployed with a team of Illinois lawyers. Our mission was to provide legal support to Task Force Phoenix commanded by Brigadier General Steven Huber. In all, our legal team consisted of six citizen-soldiers practicing civilian law throughout Illinois and a full-time Illinois guardsman from Springfield.

Greene County State’s Attorney Matt Goetten with the other members of his legal team in Afghanistan head home after a court martial at Bagram Air Base. Capt. Janie Miller (from left) was the trial counsel and is a public defender in Champaign County; Goetten, who operated as assistant trial counsel on the case; PFC Olivia Rivera, military justice paralegal; and Maurice Dale, also a paralegal.

So what does a small-county state’s attorney, a collar-county assistant state’s attorney, a Champaign County public defender, a plaintiff’s attorney from the Metro East, a legal assistance attorney from the Quad Cities, and a full-time Illinois guard judge advocate do in support of the brigade mission in a combat zone? The answer is everything.

With titles and job descriptions including claims, operational law, international law, military justice (think prosecution), legal assistance, fiscal law, contracts, and administrative law, the Task Force Phoenix legal team performed for the Army nearly every legal function performed by members of the ISBA. Of course, we did so while armed and in protective gear—an ensemble the ASA and I are advocating for prosecutors in our respective courts. The Illinois lawyers to my left and to my right brought the breadth of legal knowledge and the depth of understanding to serve the brigade in these diverse subject areas.

My official title for the task force was chief of administrative law. My duties included advising officers investigating matters from loss of military equipment to combat deaths of U.S. service men and women, and recommending actions on the investigations to the command. I advised the base commander on fiscal and contract issues effecting the base operations. I received an education in all legal matters noncriminal. However, as with any position, the majority of my time was spent doing “other duties as assigned.”

I was fortunate, due to my criminal law background, to have an opportunity to assist Captain Janie Miller, a Champaign County public defender, in court-martialing a soldier accused of receiving kickbacks from local national contractors to the tune of several hundred thousand U.S. dollars. Captain Miller and I, both experienced trial attorneys, were rudely introduced to the military system. After several months of agonizing and often frustrating preparation (you try producing a local national to testify without subpoena power), the day of trial finally arrived. When Captain Miller suggested to the judge we could take care of a procedural matter after we broke for the day, we were both surprised at the response. “Counsel, we will not be breaking until we are finished.” At 0200 the following morning (that’s 2 a.m. for you nonmilitary types), 18 hours, and 14 Diet Cokes later, the judge announced the sentence. Tee times are hard to come by at Bagram Airfield, and judicial efficiency is highly valued when military judges ride a circuit from Germany to include Kuwait, Iraq, and Afghanistan.

While my legal education in the hostile-fire-zone included many other exciting and interesting events, my most fulfilling work was providing legal support to the soldiers of Task Force Phoenix. As complicated as our legal mission was in Afghanistan, it did not compare to the difficult life-and-death decisions being made by the brave men and women of the task force protecting and transporting the rest of us every day. I participated in many training and briefing events aimed at clarifying for these troops the rules of engagement and escalation of the use of force. As I stated many times to more soldiers than I care to count, “I want you to come home, I just don’t want you to come home in handcuffs.” The decision to pull the trigger is, for the majority of soldiers, the most difficult decision they will ever face. Assisting with the simplification of our regulations and rules governing that act was, from a personal standpoint, the most important role I played. These soldiers risked life and limb on a daily basis to enable the task force to succeed in its mission—to train the Afghan National Army and Afghan National Police. Knowing I played a small part in protecting them was important to me.

I did not play a direct role in mentoring the Afghan Army legal officers but in my travels throughout the country was exposed to the burgeoning legal system. Often termed the “rule of law,” the important societal pillar—law and order—has just begun to be propped up in a society preferring jirgas (meetings of local elders) to trials. Many international partners, including the United States, continue to assist the Afghan government in propping up “cops, courts, and corrections.” The sentiment among the international legal community, including the United States Army, is that without recognizable rule of law Afghanistan will continue to be unstable. To that end, our task force did provide legal mentorship directly to the Afghan National Army. Each successive rotation makes gains on the last, but the end state is a work in progress.

Members of the legal team stand outside the group’s Afghanistan office. Front row (left to right): Capt. Sarah Smith, attorney at Ezra & Associates, Collinsville; LTC Bob Roth, full-time Army National Guard; Sgt. Niko Oliver, New York Army National Guard (paralegal); and Capt. Jason Humke, Lake County Assistant State’s Attorney; Middle row: Sgt. Maurice Dale, ISU student (paralegal); SPC Elizabeth Fozard (paralegal); PFC Olivia Rivera (paralegal). Back row: Capt. Erin Burns, an Arkansas Air Guardsman; Captain Janie Miller, Champaign County Senior Assistant Public Defender; Capt. Will Detrick, staff attorney with Prairie State Legal Services, Rock Island; Matt Goetten, Greene County State’s Attorney

Despite the numerous other attributes distinguishing the United States’s military from the others in history, ISBA members contributed as Army lawyers and in other important Task Force Phoenix roles. I was proud to serve alongside Illinois lawyers serving as intelligence officers, commanders, public affairs officers, and other diverse nonlegal roles. Their legal training experience enabled each of them to contribute to the mission in a unique way. While I was proud to wear the uniform and serve with every member of the Illinois Army National Guard and the sister services supporting the task force, I was especially proud to serve with my fellow ISBA members. These men and women answered the difficult call and served the United States, the State of Illinois, and the Illinois State Bar Association honorably and with distinction. Genghis Khan should have been so lucky.

The Practice of Law in a War Zone, reprinted from Illinois Lawyer Now (pp. 1–2) by Matthew Goetten,Winter 2009. ©2009 by the Illinois State Bar Association. Reproduced with permission.

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