∗ This is an edited transcript of a lecture delivered by Professor Thomas W. Taylor to members of the staff and faculty, their distinguished guests, and officers attending the 58th Judge Advocate Officer Graduate Course at The Judge Advocate General’s School, Charlottesville, Virginia, on 12 May 2010. The Clausen Lecture is named in honor of Major General Hugh J. Clausen, who served as The Judge Advocate General, U.S. Army, from 1981 to 1985 and spent over thirty years in the U.S. Army before retiring in 1985. His distinguished military career included assignments as the Executive Officer of The Judge Advocate General; Staff Judge Advocate, III Corps and Fort Hood, Texas; Commander, U.S. Army Legal Services Agency and Chief Judge, U.S. Army Court of Military Review; The Assistant Judge Advocate General; and, finally, The Judge Advocate General (TJAG). On his retirement from active duty, General Clausen served for a number of years as the Vice President for Administration and Secretary to the Board of Visitors at Clemson University.
I. Introduction
At the outset, it is an honor and privilege to be here this morning in
Charlottesville. This event commemorates the career and contributions
of Major General Hugh J. Clausen, The Judge Advocate General of the
Army from 1981 to 1985. The first lecture in this series was given to the
43d Judge Advocate Officer Graduate Course and the 136th Judge
Advocate Officer Basic Course on 22 February 1995, for the dedication
of the Hugh J. Clausen Academic Chair of Leadership. Since that time,
speakers invited to give this lecture have come from various backgrounds
and positions, but all of us share a common respect and admiration for
General Clausen and his enormous and lasting contributions to the Army
legal community. I am grateful to your commander, Brigadier General Miller, and to
your Dean, Colonel Burrell, for their invitation to speak today, and
especially grateful to the Deputy Judge Advocate General, Major
General Tate, for suggesting today’s topic of providing leadership and
advice in high profile cases. General Tate recommended that I provide
you some practical advice based on my years in the Pentagon handling
high profile cases, rather than a more theoretical lecture about leadership.
I am honored that Lieutenant General Chipman, The Judge Advocate
General of the Army, drove down from Washington to be with us today.
I would like to provide special recognition and thanks to Major General
(retired) Altenburg for his presence this morning; John and I were
classmates in the 27th Graduate Course, where we formed a life-long
personal and professional friendship. He was my battle buddy in the
Pentagon during his years serving in the position now known as the
Deputy Judge Advocate General. I would also like to thank my long
time friends and colleagues, John Sanderson and David Graham, for their
intellectual and leadership contributions to the Army and The Judge
Advocate General’s Legal Center and School over many years. I am
honored to have two special outside guests: Colonel (retired) Tom
Strasburg, a former Commander of this School at critical times, and
Colonel (retired) Greg Block, a former Dean here at the School.
My introduction to the Army and the JAG Corps occurred here in
Charlottesville many years ago at the old JAG School, located on the
historic part of Mr. Jefferson’s grounds, where I completed the basic
course. Those were exciting times, as the Army rushed us into
courtrooms around the world to implement changes to the Manual for
Courts-Martial that mandated more attorneys in the legal system,
including the then-revolutionary concept of requiring that the accused
have a lawyer at every special court-martial. Of course, I have returned
many times since then at various stages of my military and civilian
career, including a year at the Graduate Course and several active duty
training tours as the Individual Mobilization Augmentee (in reality, the
Reserve backup) for the Dean. However, I never tire of this place and
always look forward to coming here to talk with other lawyers, greet old
friends, and make new ones. As I indicated, I want to share with you some
lessons learned from my twenty-seven years of Pentagon experience providing
advice to our most senior Army and Department of Defense (DoD) leaders on
managing high profile cases. However, my first experience with high
profile events came while teaching at West Point in 1976, when the U.S.
Military Academy both admitted the first women cadets and endured the
largest cheating scandal in Academy history, neither of which was
related to the other. Since leaving the Pentagon four years ago, I have
continued to provide advice as a consultant to the Army General Counsel
on management, intelligence, and personnel issues, as well as legislative
and public affairs. Given the size and composition of our force, as well
as the missions that our Soldiers perform, the Army will likely continue
to have a significant number of these cases.
The reality is that, by the time a case becomes of concern to our
senior leaders in the Pentagon, it is already a high profile case in some
respects. Otherwise, we wouldn’t be talking about it. On the other hand,
as I always cautioned my clients, not all cases that come to the
Pentagon’s attention deserve—or even require—the help of higher
headquarters to manage them properly. I have reminded my bosses in
every Administration that lawyers could help them address their
concerns, that there must be no hint of command influence, and that
sometimes their best course of action is patience—a virtue in short
supply in Washington—allowing normal rules and procedures that we all
understand to control the process and work toward an outcome. It is a
fact of life that our senior leaders generally want to be personally and
professionally involved in handling high profile cases, and your job as
lawyers is to provide them comprehensive advice and often to serve as a
buffer for the system to work as designed. For example, you may recall
that the Secretary of the Army and the Chief of Staff travelled to Fort
Hood to demonstrate their concern for the Soldiers, civilians, and
families, and held a press conference on 6 November 2010, just one day
after the tragic shootings.1 However, they carefully refrained from
speculating about the details.2
II. First Things First: Identifying a High Profile Case
You are probably already asking yourself a key question at this
point: How do you identify a high profile case—one of those special
cases that will dominate newspaper, television, and radio coverage; light
up the blogosphere; and provoke extensive public interest? Some facts
and circumstances are so compelling that you will know immediately
that the case will achieve a high profile status. A recent example is the
Fort Hood shootings that I just mentioned. Just look at a few of the
many elements of the case: the cruel irony of the deaths of soldiers and
civilians going through a processing station on a stateside military
installation; the heroism of the first responders; the professional
background and alleged ideology of the accused; the questions about
intelligence failures at various levels; and the promotion and assignment
policies governing a highly-stressed force.
Another example is the alleged Christmas Day bomber last
December, who attempted to ignite explosives during a flight bound for
Detroit. This case contained some of the same elements that marked the
Fort Hood case: the heroism of the passengers on board; the background
and ideology of the accused; the question of intelligence failures at
various levels; and the oversight of air transportation safety. And,
finally, just eleven days ago, another botched terrorist bombing occurred
in Times Square, with many of the same factors: alert street vendors and
professional first-responders and police work; the background and
ideology of the accused; the oversight of air transportation safety and
coordination of threat information; and, eventually, the question of
whether there were intelligence failures, now that government officials
suspect that the Pakistani Taliban appear to have had a role in the
planning and execution of the failed attempt.3
A. Look Under the Radar
It is far more difficult to identify the other category of high profile
cases, those that begin with a somewhat random news story, grow under
the radar for awhile, and emerge full-blown as high profile cases. The
challenge for us as lawyers is to spot just that kind of case, one that first
appears routine but—as the media would say—has “legs” and continues
to play out day after day. Although I’ll say more later about dealing with
the media in high profile cases, my point is that some high profile cases
don’t start that way, but surface routinely in the clutter of other news and
information. For example, the Abu Gharib cases were first reported on
16 January 2004, through a U.S. Central Command press release: “An
investigation has been initiated into reported incidents of detainee abuse
at a Coalition Forces detention facility. The release of specific
information concerning the incidents could hinder the investigation,
which is in its early stages. The investigation will be conducted in a
thorough and professional manner.” Although The New York Times and
Philadelphia Inquirer reported this news contemporaneously, there was
certainly no particular media interest or splash. Meanwhile,
investigations continued throughout the spring by the Criminal
Investigation Division, General Taguba, and the Army Inspector
General. However, the story largely disappeared from the public eye
until the CBS news program, 60 Minutes II, “broke” the story in a
television broadcast, complete with lurid pictures, on 28 April 2004.
Once again proving the old adage that a picture is worth a thousand
words, the story and its images haunted the Bush Administration and
DoD for months and became part of the continuing national conversation
about the conduct of the war and the treatment of detainees.
But this is not just a military phenomenon. Recall the example from
the civilian world just three years ago, when Don Imus made a racially
and sexually derogatory comment about the Rutgers University women’s
basketball team that lost the NCAA championship game. The comment
might have gone unnoticed, but for a media watchdog organization that
posted the video on YouTube. The video prompted protests by some
African-American leaders, but it took another week before the
mainstream media brought the matter to the attention of the wider public
audience. Although Don Imus lost his nationally-syndicated radio show
as a result of the kerfuffle, the subsequent discussion about the roles of
race, hip-hop culture, and the media created a firestorm of controversy.6
Similarly, several years earlier, Senator Trent Lott made a comment
about Senator Strom Thurmond at a party celebrating Thurmond’s 100th
birthday. Referring to Thurmond’s presidential bid in 1948, Lott said: “I
want to say this about my state: When Strom Thurmond ran for
president, we voted for him. We’re proud of it. And if the rest of the
country had followed our lead, we wouldn’t have had all these problems
over all these years, either.”7 Of course, the problem was that Thurmond
had run as a Dixiecrat on a segregationist platform that would have
continued denying fundamental rights to people of color. Although the
mainstream media initially ignored or downplayed Lott’s comments, the
story thrived in the blogosphere and made its way back into a high
profile case that cost Senator Lott his leadership role in the Senate.8
Thus, the challenge is not only to recognize the high profile case as early
as possible when it occurs, but also to spot the case that at first appears
routine, but rapidly develops into a high profile case.
As I tell my graduate students at Duke, in our information age and
twenty-four-hour news cycle, supplemented by blogs, tweets, and
various social media, you can never assume that a bad-news story will
stay under the radar. Rather, you must assume just the opposite: That
someone, somewhere, sometime, will have a cell-phone camera photo, email,
text message, or some other record of practically every
questionable event that occurs, just waiting for the right moment to burst
on to the public stage and play itself out in the media. For example,
recall how the “macaca moment” hurt the senatorial campaign of Senator
George Allen of Virginia in 2006.9 I’ll say more about how to avoid that
mistake later in my remarks.
B. Typical Fact Patterns for High Profile Cases
For now, I would urge you, as you go about your daily work, to
remain alert for the facts and circumstances that will propel a local issue
into the national media. As you might have already concluded, as a very
practical matter, almost every case you handle as lawyers could have the
potential for turning into a high profile case if enough public interest
develops. However, we have learned from experience that certain types
of cases always have potential for that level of scrutiny that I have
described. Here are some of the types of cases with potential to achieve
a high-profile status.
First, suicides and friendly fire incidents are prime examples of
potential high profile cases. Families are usually reluctant to accept the
finding that death resulted from either. It is commonplace for families to
suspect foul play, a conspiracy, or a cover-up. Their feelings are
understandable, so we must go the extra mile to leave no stone unturned
in finding the truth. A recent example is the Tillman friendly fire
investigation, now the subject of Jon Krakauer’s latest book, Where Men
Win Glory: The Odyssey of Pat Tillman, which dissects and criticizes
decisions made at all levels.10 Unfortunately, almost all of you in this
room has probably been, or will be, involved in one of these tragic cases
during the course of your professional careers. Second, crimes which involve the
abuse of a special relationship are always disconcerting. These crimes might involve
misconduct by chaplains, doctors, recruiters, cadre, teachers, or guards—anyone with a
special obligation to provide services in a protected setting where there is
an unequal status. Because these crimes involve an abuse of a trusted
relationship, often in addition to some other underlying crime (such as
sexual assault), we can predict an outpouring of media and congressional
interest. The recurring stories of detainee abuse are prime examples, but
stories persist about abuse of our own military personnel in training and
recruiting environments, as well. A third example includes crimes that involve racist,
extremist, and similar motives, often referred to generically as “hate crimes.” Because
these motives are contrary to the core values of our country and our
military, when they surface as part of a crime, everyone pays attention.
You may recall allegations of these types of crimes at Fort Bragg and
Fort Campbell several years ago. Moreover, whenever skinhead, neo-
Nazi, or militia groups make the news, investigative reporters always
focus on any group members who might have served in the military or
received military-type training in some other setting, such as law
enforcement courses. A fourth example consists of crimes or other types of misconduct
that involve high-ranking officials, officers, non-commissioned officers
(NCOs), and civilians. During 2005 alone, the Pentagon had cases
involving improper sexual relationships that embarrassed a former Air
Force TJAG and an Army four-star commanding general.12 Of course,
each year brings a new rogues’ gallery of government officials:
governors like Mark Sanford of South Carolina, who gave us a whole
new connotation to “walking the Appalachian Trail,” and former senators
like John Edwards of North Carolina, whose personal lives become
fodder for Oprah and GQ. Again, these leaders occupied positions of
special trust, and the public rightfully expects them to follow the highest
standards of conduct in their personal and professional lives.
Finally—and this by no means exhausts the list—there are cases that
become high profile because of the way that we may have handled or
mishandled an otherwise-routine case that catches the public’s attention
and sympathy. Some typical examples that perennially lurk just under
the radar include the following: holiday displays and public prayers in
military settings, which raise freedom of religion issues; compelling
Soldier stories about child custody issues during deployments and
services for wounded warriors at home; claims of discrimination based
on the usual suspect categories of race, gender, religion, and so forth;
and, of course, investigations leading to discharges based on
controversial personnel policies, such as “Don’t Ask, Don’t Tell.”
III. Two Questions
My first and most important tip in handling high profile cases is to
ask yourself and your client two questions: First, what would we
normally do in a situation like this? And, second, why would we do
anything different in this case? I have found that these two questions put
most cases in perspective and are the best possible protection against
claims arising later that someone got special treatment. In other words,
begin with the presumption that the normal rules will prevail.
Those claims of special treatment usually arise in one of two ways.
Either someone got especially good treatment, and thus got away with
something for which they should have been held accountable; or
someone got especially bad treatment, and thus was unfairly investigated
and punished by the system. You can probably think of instances where
that claim was made in the last several years in both military and civilian
contexts at home and abroad. For example, I can recall a number of
Army cases in which someone claimed that a family or staff member of
the commanding general was stopped on post by the military police, but
not charged, or otherwise treated, as any other person would have been.
This happens in the civilian community, as well. Just last month, a North
Carolina highway patrol captain was stopped while driving extremely
drunk early in the morning. After his supervisor arrived at the scene, the
two officers had the captain’s Mustang towed, drove him to a local hotel,
and filed no report. The captain and the two officers were fired
following an investigation. Another variation on this theme is that lower ranking
Soldiers or officials were held accountable, in a way that senior officers and officials
were not. The public watches for examples of favored treatment,
application of the so-called double standard, and scapegoating in either
the investigation or disposition of allegations. The number of cases
where this claim arises is too numerous to mention, but I’ll point to Abu
Gharib in the military world and the Scooter Libby case in the civilian
world. But I’ll say more about accountability later in my remarks.
For now, the thing to remember is that someone is always watching
to see whether we will do the right thing. A quick story to illustrate this
point: One of my best friends and former Pentagon clients, Mike
Ackerman, was a three-star general and Inspector General of the Army a
few years back. He was flying back from Korea to Washington, coach
class, which is a government requirement, and had a seat in the middle of
the plane, even though he had recently undergone back surgery and could
clearly have justified a better seat if he had been willing to ask for a
doctor’s approval. Several hours later, as Mike hobbled to the restroom,
a sergeant who had served under Mike years earlier, said, “Hey, Sir.
You won me a case of beer.” When Mike asked how that could be the
case, the story unfolded of a bet between the sergeant and his seatmate,
also a non-commissioned officer. After the plane was loaded and ready for takeoff,
the sergeants (also in coach but several rows back from Mike) observed a flight attendant
offer Mike an upgrade to business class because he was a three star
general and the flight was long. The sergeant who did not know Mike
had bet his seatmate a case of beer that he would take the upgrade. The
sergeant who had served under Mike knew about his character and bet
that Mike would not accept the upgrade. In addition to being a great
illustration of the idea is that someone is always watching, this is also a
great story about leadership and integrity: Doing the right thing when no
one is watching, because—you know what—someone is always
watching.
A. The Rule of Law
Following the normal rules also means that we maintain both the
appearance and the reality of the most important and critical aspect of the
criminal and administrative process: the rule of law. The public expects
its officials to adhere to the laws, rules, and regulations that govern the
normal disposition of allegations. After all, as Americans, we have
professed our belief in the rule of law and equal justice under law. And,
as Soldiers and lawyers, you have dedicated your professional lives to
making that vision a reality.
Why am I placing so much emphasis on the importance of following
the rules? In every case in which you deviate from your normal rules,
you will probably be called upon to explain why you did not follow your
normal rules and to justify why you made an exception. Your best
defense almost all the time is that you handled the high profile case just
like any other case. Hence, my advice is to follow the rules that
normally apply and to consider carefully the rationales for any
exceptions. Moreover, any exceptions may also set precedents that could
prove troubling in future cases.
B. Questioning Authority
I do not mean to imply, however, that lawyers should blindly accept
standard solutions or conventional wisdom without questioning whether
the laws, regulations, and policies that might govern the disposition of
allegations make sense as they apply to a particular case. Rather,
lawyers should be the ones asking the hard and critical questions to
ensure that the processes are transparent and the outcomes, just. Among
the reasons this Nation came into existence was the suspicion that
Americans have harbored toward the exercise of authority. You may
recall from our history that King George III’s abuse of judicial and police
powers contributed to the American Revolution. Our Founding Fathers
were so suspicious of the potential authority of a centralized government
that many states would not ratify the Constitution until there was
agreement that the Bill of Rights would be added, guaranteeing rules that
some of you have provided advice on every day, such as the Fourth
Amendment protections against unreasonable searches and seizures and
the Fifth Amendment protections against self-incrimination. My point is
that you have a responsibility as lawyers to question authority, especially
when the questions may not be welcomed. After all, even Thomas
Jefferson, when he was President, blamed his problems with the
Congress on “one hundred and fifty lawyers, whose trade it is, to
question everything, yield nothing, and talk by the hour.” Thus,
lawyers have a proud heritage of asking bothersome questions.
In fact, military lawyers arguably have a greater obligation than most
Soldiers and civilians to raise questions about authority because of the
hierarchical rank structure of a military organization that does not always
appreciate or encourage questions, the special staff relationship that
military lawyers have with their commanders, and our responsibility as
licensed attorneys to uphold the rule of law. It is clear that the current
leadership of DoD wants you to ask questions. Just last month, in a
speech at the U.S. Naval Academy, Secretary of Defense Gates
encouraged the midshipmen to challenge conventional wisdom and
institutional tradition. Secretary Gates pointed to examples of junior
officers who had the nerve and courage to push for the development of
amphibious landing craft, aircraft carriers, and nuclear submarines in the
face of opposition or indifference from their more senior leaders.15
C. Liberty v. Security
We also must recall that one of the basic tensions in our society is
that Americans are conflicted about the extent to which we want our
government to solve our problems. On the one hand, we want our civil
liberties and our privacy protected by and from the government; on the
other, we want government to provide us security, law and order.
Indeed, a debate has raged since 9/11 about where to strike this balance
between liberty and security. The frontline issues for the debate have
included the vexing question of what to do with detainees, including
whether a special terrorist court should be formed to authorize preventive
detention without trial for those too dangerous to release; what level of
interrogation can be justified to avert the “ticking time bomb” scenario;
and how much surveillance of our e-mails and library records we are
willing to accept to have a greater sense of security.
Just look at the reaction to the attempted attack on Northwest Flight
253 outside Detroit on Christmas Day. Five days later, former Vice-
President Cheney claimed that America is less safe because President
Obama was “trying to pretend we are not at war.”16 Others criticized law
enforcement authorities for advising the accused of his rights and
processing his case through the Federal system instead of turning him
over to a special interrogation team and using a military commission to
try him. The Obama Administration was forced to defend itself on all
these counts in the weeks that followed. And similar grumbling about
treatment of the alleged Times Square bomber is already on the airwaves.
Thus, the public policy discussion about where to draw the line
between civil liberties and security is alive and well. A current example
of the debate has centered on the recent Arizona law requiring law
enforcement officers to check immigration documents based on a
reasonable suspicion. While some argue that, given the failure of the
Federal Government to address the problem of illegal immigration, the
Arizona law is the best policy solution, others contend that this law
attempts to usurp Federal authority and legitimize racial profiling. As
you know, a number of lawsuits have already been filed, and the
Administration seems to find itself on the hook to do something, even
though the law has not yet taken effect.
The fact is that our society is interested in what our justice system
does and how we lawyers manage the system. Our civilian and military
justice systems are not “bottom-line” organizations where the only thing
that counts is the results. We are given a special trust when we become
officers of the court as licensed attorneys, in addition to the special trust
and responsibility as military officers. In exchange, we have a special
obligation to support the rule of law. Hence, my bottom line up front consists
of the two questions that will generally lead you to follow your own rules and
depart from them rarely, if ever, with full knowledge that you will have to account to
someone, somewhere, for why you did not follow your own rules. The
central theme becomes adherence to the rule of law, which requires
lawyers and our clients to make independent and impartial judgments to
maintain the credibility of our system of justice.
IV. Who Else Needs to Know?
My second tip for handling high profile cases is to ask yourself this
question: “Who else needs to know?” We must pay attention to the old
adage that bad news never improves with age. Of course you should
ensure that your supervisors, your own command public affairs office,
your own technical legal channels, and your higher headquarters are
tightly in the loop. They will be able to coordinate notifications to the
Pentagon’s oversight community, as well as the oversight committees of
Congress. I mentioned some examples of these types of cases earlier—
those involving suicides, friendly fire, abuses of trusted relationships,
hate crimes, and high-level officials. While laws and policy directives
may require some of these reports, I recommend that you always err on
the side of reporting in close cases. You may be surprised how much
help you can receive from other investigative organizations, like the
Federal Bureau of Investigation (FBI) and your DoD counterparts.
A. Report Early and Often
Why is it so important to keep your higher headquarters up to speed
on bad news? Reporting unfolding crises gives them the heads-up they
need in our information age. Your bosses will be receiving calls from
the senior Pentagon leadership, the Hill, and the media asking what is
going on. They need the information to help ensure that others will have
confidence in your investigation and disposition of the allegations. As a
by-product of our information age, the days are long past when leaders
can delay breaking the bad news to the boss until they have “all the
facts” or a “solution.” Additionally, your credibility increases when you
achieve a reputation for reporting the bad news, as well as the good.
Moreover, your higher headquarters can leverage support from their
oversight bodies, and get their buy-in on your strategies to some extent.
I have seen some controversies fizzle, instead of blossom, when you can
show that you made a timely notification of a problem that appeared
routine to all at the time, but turned out to be high profile. When one of
those “sleeping giant” cases suddenly achieves a high profile, everyone
starts asking the proverbial question, “What did you know, and when did
you know it?” That was the very type of question that made the Pat
Tillman and Jessica Lynch cases so explosive. Wholly aside from any actual
requirements to report incidents to higher headquarters, it just makes good sense for you to be the first one to deliver the bad news. It gives you the opportunity to identify the
potential crimes, frame the issues, lay out your investigative plan, and
establish timelines for, and obstacles to, completing the investigation.
Your oversight bodies will be more inclined to let your investigation
proceed without their interference if they see that you have a plan in
which they have confidence. For at least the past thirty years, the Army has
generally been diligent in disclosing unfavorable stories to senior DoD officials, the
DoD Inspector General, and oversight committees on the Hill. No matter
how unfortunate or ill-advised the incident may be that is the subject of
the report, at least the Army could take some credit for being forthright,
rather than facing accusations of a lack of candor, or worse yet, a coverup.
High-profile crises are particularly susceptible to the charge of
cover-ups, because many details may not be immediately apparent or
releasable to the general public and may, in fact, be privileged or
classified.
B. Learn from the Experience of Others
There is a second compelling reason to ask who else needs to know:
You can tap into the expertise and experience of others. Experts from
outside of your command can help you begin to size the situation and
provide you additional resources or a school solution. The idea is to tap
into their experience, as well as expertise. Rarely are there situations that
someone has not seen before, although when they happen, they challenge
all of us. I suppose that the attacks on 9/11, the devastation of Hurricane
Katrina, and the massive oil spill in the Gulf last month would be in that
category. As someone once said, experience is what you find—when
you are looking for something else.
The perhaps apocryphal story attributed to Sam Walton—the
extremely rich founder of WalMart—describes a conversation at Harvard
Business School between a student and Mr. Walton during a questionand-
answer session, as follows:
Student: What’s your secret? How did you become the richest man
in America?
Walton: It’s easy. Good decisions.
Student: But how? How do you know the good decisions?
Walton: That’s easy too. Experience.
Student: Well, then, how do you get that kind of experience?
Walton: That’s the easiest part of all. Bad decisions.18
The point is to learn from the mistakes that others have made, as well
as our own. In other words, you need not bruise your own leg on every
rock to learn that rocks are hard. Is there anyone among us, who has not
silently thought, when we hear of someone else’s mistake, “There, but
for the grace of God, go I.” In fact, the worst thing you can do is try to
handle the many aspects of a high profile case by yourself. The tragic
story of Karl Wallenda is an example of a leader’s taking on too much
responsibility and not trusting others to help. He led a famous circus
family called the “Flying Wallendas,” which thrilled audiences by their
bold acrobatics and balancing acts on wires high above the center ring.
He eventually would not let anyone else perform all the crucial checks
before each performance that would ensure the safety of the equipment.
His insistence on doing everything himself eventually caused him to fall
to his death, because he did not discover during his checks that several
ropes securing the wire were not properly connected.19
Teamwork is the key, and all of us are players. And you can never
tell where you will find the best idea. Hence, reaching out to others
becomes an imperative. During a speech a couple of years ago at West
Point, Secretary Gates said that he had found it invaluable in his trips to
the field to meet with and listen to lower-ranking soldiers to help shape
his approach to decisions. He advised everyone in senior positions to
“listen to enlisted soldiers, NCOs, and company and field-grade officers.
They are the ones on the frontline, and they know the real story.”20
I can guarantee that you can expect to make mistakes if you are
engaged in the front lines of our business. The key is to identify the
mistakes early on. I have found that the best way to do that is to
cultivate open and honest relationships with your subordinates, peers,
and superiors, who will keep you out of trouble by pointing out
something you missed. In other words, always listen to the other players,
especially in high profile cases. You can never tell who will have the
best idea, but it may be from the player on the field, who is closest to the
action and understands the terrain.
And don’t be wedded to a course of action that you previously
supported, especially when facts and circumstances begin to shift in a
way that makes you question whether your initial assumptions or
previous judgments are still correct. For example, after I had objected to
a course of action proposed by one of my Pentagon client organizations,
their staff members would occasionally show me a somewhat similar
action that I had approved years earlier in an effort to persuade me (or
perhaps embarrass me) so that I would withdraw my objection. When
that happened, thankfully not too often, I usually told them that I was not
bound by my previous opinions because one of three things could have
happened: the law and regulations could have changed, the facts and
circumstances might be different, or I had learned from my earlier
mistake and would not repeat it for the sake of being consistent.
V. Be Prepared for an Investigation of the Investigation
That gets me to the third tip: Handle your case as if you might have
to explain your investigative plan, decisions, and results to outside
organizations, such as the DoD Inspector General or FBI, or to a House
or Senate Committee conducting their own investigation into what you
did. I have been in the position of having to account to every one of
these organizations for some Army investigation during my time in the
Pentagon. You need to expect oversight by others, and plan for it, so that
when someone comes to “investigate the investigators,” you are prepared
to show that you followed the rules. The price of your independence is
your accountability to the rule of law, which involves answering
questions posed by others with some authority and responsibility over
your organization. Don’t resent the questions or the questioners, even if
you are tempted to do so as a normal human response.
A. Congressional Relations
I mentioned earlier that one of the first notifications should be to
your congressional oversight committees. Depending on the
relationships between the President’s Administration and the Congress—
and these relationships vary greatly from Administration to
Administration (and sometimes within the same Administration when
there is a change in the composition of the Congress)—you might be able
to leverage both internal and external congressional support for your
position. Public statements of support from key congressional leaders
can provide a public shield for your investigations and their results. For
example, information, such as classified documents, that you cannot
release to the public might be legitimately shared with oversight
committees, enabling them to affirm to the public that they have looked
into the matter and are satisfied that the military’s handling of the
situation was reasonable under the circumstances, even if they too
disagreed with the ultimate outcome.
Sharing information about high profile cases early on, and regularly
thereafter, with congressional oversight committees serves other
overlapping purposes. First, it gives our congressional oversight
community a heads-up about a subject that will eventually be on their
radar screens anyway. My experience is that you can either take the
initiative and give the members and staff a chance to prepare a hopefullysupportive
statement about a case, or, instead, you can wait until they
call and complain about being blindsided about a case that falls within
their jurisdiction. Second, the military should take advantage of every
opportunity to educate members and staff about what you do. A
shrinking number of veterans serve as elected representatives, and many
staffers have no firsthand understanding—and therefore no contextual
knowledge—of the military or of the military judicial system. Thus,
each case can become a famed “teachable moment” and learning
experience about the role of a general court-martial convening authority
and the central relationship between that responsibility and good order
and discipline. If members and staff understand the independent nature
of your prosecutorial, defense, and judicial functions, and how well
insulated they are from unlawful command influence, they may be
willing to forego,or at least postpone, their own inquiry or investigation
into the matters at hand.
Several encouraging signs have emerged over the past few years.
First, the debate over various versions of military commissions bills has
exposed members and staff to the details of the court-martial system and
people like you who make it work. Second, we are now seeing more and
more former military members seek elective office and staff positions on
the Hill, trends that should bode well for the future support for our
military forces. Third, the recent elevation of the Military Service Judge
Advocates General to Lieutenant General is clear evidence and
affirmation of the important role that military lawyers play in our system
of justice. However, the lesson I learned is that we have a continuing
duty to educate others. We cannot take for granted that everyone
understands and accepts the need for independence that we follow as our
fundamental operating principle.
B. Congressional Investigations
A recurring challenge in ongoing investigations, especially if there is
intense media or congressional interest, is handling requests from
congressional oversight committees for access to information before the
criminal investigation and proceedings are complete. According to news
reports in the past few weeks, for example, Senator Liebermann has
demanded access to certain information regarding the investigations
surrounding the Fort Hood shootings. Although the Pentagon reportedly
has made some information available, other information and witnesses
have not been made available so as not to interfere with the ongoing
criminal investigation. In many cases, some compromise can be reached,
but if not, congressional subpoenas are possible.21 If the military is
participating with the FBI in a joint investigation, I have also found it
useful to request that FBI officials visit with members and staff to
explain our joint concerns.
Full-blown congressional investigations are always a possibility in
high profile cases. A recent example is the exhaustive inquiry by the
Senate Armed Service Committee into the abuse of detainees. Their
report, issued in December 2008, detailed the history of policies and
procedures from the White House, Department of Justice, DoD, and
Central Intelligence Agency based on comprehensive interviews and
document searches. The report concluded that “senior officials in the
United States government solicited information on how to use aggressive
techniques, redefined the law to create the appearance of their legality,
and authorized their use against detainees.” On the other hand, a
spokesman for Secretary Rumsfeld called it “regrettable that Senator
Levin has decided to use the committee’s time and taxpayer dollars to
make unfounded allegations against those who have served our nation,”
based on a “false narrative . . . unencumbered by the preponderance of
the facts.”
C. Plan for Full Transparency
No matter where you come out on the report’s conclusions, the point
is very clear that you need to prepare for intense outside scrutiny in any
high profile case. For planning purposes, you must assume that
eventually all the information surrounding an incident, including your
own legal advice and opinions, will surface and be made public. No
matter how confidential, classified, or privileged you may think that
discussions you have about investigations and their disposition may be,
count on everything becoming public some day and act accordingly.
During the years that I worked on intelligence operations and
projects, many of the most secret and highly classified operations on
which I provided advice eventually became public for one reason or
another. An example is the then-secret underground facility built during
the construction of the West Virginia Wing of the Greenbrier Hotel in
West Virginia. The new wing provided cover for an independently
functional, concealed alternative site for the relocation of the senior
leaders of the Federal Government in the event of a nuclear strike.
Conceived during the Eisenhower Administration, the contingency
facility was built from 1959 to 1962 and remained a closely guarded
secret until The Washington Post broke the story in 1992. This story
illustrates that we should never assume that, because something is known
by only a few select individuals today, the world won’t know it by
tomorrow. E-mails, text messages, and social media virtually guarantee
transparency, if mainstream media do not.
VI. Help the Media Frame the Story
My fourth tip is for you to consider how to frame the story, to handle
press inquiries, and to provide enough information so that news
organizations will be able to understand and report on your story. As a
general rule, the Army routinely publicizes most of its activities and
seeks forums in which to tell Soldier stories. As an exception, the Army
generally does not comment on operational matters, ongoing
investigations and litigation, even in response to media inquiries.
However, there are times when comments may be appropriate, and in
those times, you must be careful to consider three basic principles:
A. Be Honest and Open with the Media
First, tell the media as much as you can as soon as possible. If
information and records would be releasable under the Freedom of
Information Act, you generally should encourage your clients to initiate
the release of those facts, rather than require the media to submit a
written request. If you don’t know the answer, say that you don’t.
Despite efforts by your clients to “go directly to the public” with their
story, the media will inevitably interpret the story based on their own
understanding. As a lawyer, you can provide valuable background and
legal context that will educate the media and enable fair and balanced
reporting. Indeed, legal background by subject matter experts became
routine for high profile cases during my time at the Pentagon. Although
the media may not report the story the way that you framed it for them,
you will be on the record with your interpretation of the events.
For obvious ethical and practical reasons, your clients should never
lie to, or mislead, the media. I even recommend against “spinning” a
story in such a way that might call your credibility into question. The
long term trust between the DoD and the media is more important than
the temporary advantages one may think will accrue from parsing the
truth in a particular case. We Americans remain sensitive to the notion
that our government, and especially our military, might somehow try to
manage the news that we receive. The lessons learned from the fall-out
of the Jessica Lynch and Pat Tillman stories, during the course of which
many felt that false stories either were propagated, or allowed to linger,
should always be at the forefront of our minds.
Just look at the concern generated by media reports in August 2009
that DoD had a contract with a public relations firm, whose job was to
review applications by reporters to embed with our military units and
grade their past reporting as neutral, positive, or negative. Although the
Pentagon denied that these reports were crucial to decisions about future
embeds, the controversy surfaced again the following December during
the confirmation process of Douglas Wilson, the nominee for Assistant
Secretary of Defense for Public Affairs. Mr. Wilson told the Senate
Armed Services Committee that he opposed the rating system for
reporters’ coverage, as well as any discrimination against “unfriendly
reporters” during the credentialing process for reporters who want to
embed with our troops. In his written statement to the Committee, Mr.
Wilson said, “In my view, we should never be a party to efforts to place
so-called ‘friendly reporters’ into embeds while blocking so-called
‘unfriendly reporters.’”25 The Senate confirmed him in February 2010,
but the message is clear that fairness and credibility are essential in
dealing with the media at all times, especially in high-profile cases.
Most of us recognize that strategic information and communications
operations are crucial to our fight against threats posed by al Qaeda and
its affiliates, who use the Internet and other media to promote their
propaganda, mobilize support, and radicalize followers. As several
pundits have humorously observed, the U.S. often seems to be outcommunicated
by folks whose material originates from caves in
Afghanistan and Pakistan. Despite our desperate need for better
communications strategies, the Pentagon has reportedly ordered at least
two reviews in the past six months of their information operations
programs to get a better handle on how much money is spent and for
what, especially in light of the recent allegations that contractors were
locating insurgents while pretending to be gathering information.26 A
recurring theme in these reviews is the extent to which information
operations overseas are openly attributed to the U.S. Government and
apparent to the consumers of the information.
B. Defend the System
Second, step up the plate and defend our system of justice, even
when it is difficult to understand or justify a particular result. In any
legal system governed by the rule of law, but administered by all of us
humans, you will sometimes get results that are unpopular and hard to
accept, as when a jury seems to ignore evidence establishing guilt, or a
commander decides to take little or no apparent action in a case where
others are screaming for heads to roll. At those times, particularly in
high profile cases, the public understandably may question whether we
have a fair and independent system that reaches the right results.
This push for a public explanation often presents a dilemma. For a
lot of reasons that have to do with the way that our government leaders
have made decisions in the past, the public and the Congress demand a
fair amount of transparency, arguing for the maximum disclosure of
information. On the other hand, there are legitimate privacy interests at
stake, as well as the independence of those exercising judicial and
administrative authority. Should we put those who play critical roles in
our judicial system—judges, juries, and commanders exercising judicial
functions—in the position of having to defend the exercise of the
discretion allowed them by law to do justice, especially if the public
doesn’t like the outcome? Isn’t that one reason that Federal judges have
lifetime appointments, so that they can do the right thing and uphold the
rule of law without fear of recriminations? On the other hand, don’t we
expect public officials to be held accountable for their exercise of
authority, especially when justice is at stake? Again, the key is to strike
the right balance between providing as much information as possible to
ensure public confidence in the military and its decisions, on the one
hand, and preserving important principles, on the other.
This will be a test of your leadership. These dilemmas require you
as lawyers to step up as leaders and make the case on behalf of the
system in which you work, a system based on the rule of law. When it
comes to talking about or defending the outcomes in particular cases or
classes of cases, you should say as much as you comfortably can, within
the rules of professional conduct and privacy considerations. But here is
the key point: You should be able to defend and explain the system even
when you have difficulty explaining the specific outcome that has
aroused the public’s interest or, perhaps, anger. As I mentioned earlier,
any public statements of support from key congressional leaders can also
help reassure the public that the system was working as designed and in
accordance with the rule of law.
As a practical matter, that means that your leaders at your immediate
commands and your higher headquarters must continue to rely—as they
have in the past—on the outstanding work that you do as leaders and
lawyers every day in your locations around the world. They must rely
on, and have faith in, the premise that you are following the laws,
regulations, and policies that control the procedures and outcomes in all
cases—routine and high profile. When it is necessary for your senior
leadership to explain to the Office of the Secretary of Defense, the DoD
IG, the Congress, the media, and the general public what you have done
in a particular case, they will have faith that you will have done the right
thing, and no one will be embarrassed. They will have faith that you
have followed the rules, even when the rules were time consuming and
seemed to impede the progress of your work at the time.
C. Calculate Your Media Responses
Third, take the long view of media issues. Time and again, I have
advised public affairs officers not to respond to a frivolous one-day story
in the paper. I have found that some stories interest only folks inside the
Capital Beltway, and there will be little or no interest outside the
Beltway. Responding will only make this kind of story a two or three
day story, because, once you respond, the reporter will write another
story. Some stories will die of their own weight if you let them. As
always, the most difficult task is identifying which story has “legs” and
high-profile potential.
VII. Coordinate Multiple Investigations and Ensure Their Credibility
My fifth tip is for you to assume leadership in coordinating the
multiple and overlapping investigations that almost always accompany a
high profile case. Your command sometimes must begin to examine a
management, safety, or leadership problem before you have had time to
investigate fully the allegations that brought the problem to the
command’s attention. This happens often in safety investigations
following aircraft accidents or friendly fire incidents. Although it is
important to know who or what was responsible for the mishap, the most
immediate challenge is to prevent another tragic recurrence. As lawyers,
you are in the best position to exercise leadership and influence
involving investigations, to give advice about the types of investigations
that may be appropriate, and to avoid conflicts among ongoing
investigations.
If it is fairly certain that the incident might lead to criminal charges,
you can ensure that any informal inquiry, Army Regulation 15-6 or other
administrative investigation, or IG investigation will not muddy the
water and interfere with your criminal investigation and eventual
prosecution. Lawyers are uniquely positioned to coordinate
investigations so that they complement each other, pursue the proper
lines of inquiry, and preserve the option of prosecution where
appropriate. Otherwise, investigators may be tripping over each other,
creating conflict among witnesses, and otherwise breeding evidentiary
problems. A recent example of this unfortunate outcome involved the
infamous shootings by private security contractors, resulting in the
deaths of fourteen Iraqi citizens in a traffic circle in Baghdad in
September 2007. Judge Urbina dismissed the charges against five
Blackwater employees in January 2010 because of the botched
investigations and prosecutions. Although the Department of Justice is
appealing the dismissal, the lesson about coordinating multiple
investigations is clear. Where several investigative efforts are
proceeding simultaneously, my advice is simple and to the point: The
criminal investigative effort should have a green light, and every other
investigation should have a flashing yellow caution, which requires the
lawyer’s approval to proceed.
Another factor to think about as you decide how to approach the
investigation is whether your organization can investigate the allegations
at all with any credibility. Depending on the size and scope of the case,
the President or Secretary of Defense may form a commission of
outsiders, typically former senior officials from all three branches of
Government with the background and experience to lend credibility to
their findings and recommendations. The deliberations of these
commissions may be subject to the provisions of the Federal Advisory
Committee Act, a point often overlooked at the beginning in the
eagerness to buy the time and cover that these commission often provide.
Even so, because the military is often criticized for investigating
itself, you should consider whether you should refer the matter to higher
headquarters or another appropriate agency, such as the FBI or the
Defense Criminal Investigative Service. As unfair as this criticism may
be, and although our clients understandably resent having some outsiders
come into their organizations and take care of their dirty laundry, I have
recommended to my Pentagon clients from time to time that the most
practical and efficient course of action was to ask the FBI, DoD
Inspector General, or a sister service to come in and conduct an
investigation. This was because I knew that the Congress and the public
would never accept the credibility of an investigation by any Army
element. On the other hand, you must remain alert to discourage other
investigative agencies without clear authority from expanding their
jurisdiction creatively into Army activities when the Army is clearly
capable of a credible investigation. A comfortable middle ground in
some cases might be a joint investigation with the FBI or other agencies
with which there is overlapping jurisdiction.
When your organization is conducting an investigation, watch for
conflicts that may develop for investigating officers and agents because
of preexisting relationships. If an agency is—or had been—too close to
the functions or people under investigation, look for alternatives.
Similarly, you should alert investigative officers to identify issues
uncovered during the course of their investigations that are not within the
scope of their inquiry but should be referred to another agency or office
for follow up.
VIII. Whom Do You Hold Accountable?
Finally, my sixth tip is to think about accountability as you come to
closure. When you think about accountability in today’s environment,
you cannot ignore the events of the past couple of years. Consider the
public interest in accountability in our national security community:
--the questions raised about the National Security
Agency’s terrorist surveillance program, and the issues
of how much information was shared and who objected
during high level briefings to a small number of key
congressional leaders;
--the questions raised by the Judiciary and Armed
Services Committees of the Senate about senior leaders’
and lawyers’ accountability for the interrogation rules
and policies that the Senate Armed Service Committee
found contributed to coercive interrogation practices;
--the continuing questions about who was
responsible for intelligence and air safety failures in
connection with the alleged Detroit bomber; and
--the questions under review by a special prosecutor
about whether Central Intelligence Agency (CIA) agents
violated Federal laws during overseas interrogations of
detainees.28 (You may recall that former Vice President
Cheney opposed the decision as a political move to
satisfy the liberal wing of the Democratic Party and
expressed concern that the review might hamper the
willingness of agents in the future to do their jobs.29 On
the other hand, the appointment of the special prosecutor
was based on the findings of the CIA’s own Inspector
General that agents had exceeded the limitations in
effect at the time of the interrogations and used
My point is that we cannot afford to overlook the accountability
piece of the equation. There are a lot of Monday morning quarterbacks
out there, and as Norman Augustine, former Chief Executive Officer of
Lockheed Martin, once wrote about people like auditors, inspectors, and
Monday morning quarterbacks, “Murphy taught that if anything can go
wrong it will, but it was left to Evans and Bjorn to point out in their law,
‘No matter what goes wrong, there will always be someone who knew it
would.’”
If you look at the track record of the current Secretary of Defense,
you will see clear evidence of his willingness to hold senior officials
accountable. Secretary Gates remarked back in February, when he
replaced the major general in charge of the Joint Strike Fighter program,
“If I’ve set one tone at the Department of Defense, it’s that when things
go wrong, people will be held accountable.” Indeed, the list of senior
officials he has relieved is impressive, including the top U.S. commander
in Afghanistan in 2009, the Air Force Secretary and Chief of Staff (on
the same day) in 2008 in connection with the control of nuclear weapons,
and the Secretary of the Army in 2007 as an outgrowth of the treatment
of wounded warriors at Walter Reed Army Medical Center.
What this means to us—as practicing lawyers—is that we should
think through accountability issues and identify them for our leaders and
clients. This requires brutal honesty, at times, because our leaders—and
even we—may bear some responsibility. I believe that our clients in the
highest levels of the Executive Department and our officials in the
oversight community expect and deserve our best effort—a procedure for
fair investigation, analysis, and review. They will be more likely to
accept our judgments, even if they do not agree with them, if we can
show that the accountability process was open and even-handed.
A word of caution: All of us who are players get roughed up from
time to time. This is especially a problem for lawyers. When things go
wrong, our clients have an annoying and predictable tendency to blame
us, in addition to relying on us to get the command or them out of a box.
As unfair as this often may be, we cannot turn away from the action; we
cannot play it so safe that we become irrelevant and ineffective. We
must not be intimidated by those looking over our shoulders, but must
continue to do what government attorneys always should do: Speak truth
to power.
IX. Conclusion
So to summarize my thoughts, I am leaving you with six suggestions
about how you can exercise leadership and provide advice after you have
identified a case with high profile potential:
1. Ask what the normal rules are and why you would
not follow them in the high profile case. That
becomes your best defense against later claims of
preferential treatment or double standards.
2. Ask the question, “Who else needs to know?” Keep
your headquarters and oversight bodies in the
information loop. Err on the side of over-reporting
to enhance your credibility. And take advantage of
the expertise and experience of others who have
“been there, done that, and have the t-shirt.”
3. Conduct your investigation as if you will have to
account to an oversight authority for every decision
and action you take.
4. Consider how to frame stories and handle press
inquiries without misleading the media. Step up to
defend the system, even when you cannot defend the
specific decision.
5. Exercise leadership in coordinating multiple
investigations, and keep a balanced perspective on
who should conduct investigations.
6. Think carefully about accountability.
In closing, I want to thank all of those who made the arrangements
for this event and for your hospitality during my stay here. I also want to
thank the staff and faculty for the outstanding service that you provide
our legal community and our Nation. This Legal Center and School has
clearly become the epicenter of military legal education. I wish to
congratulate all the members of the 58th Graduate Course, to thank you
for your continuing service, and to wish you the best in your new
assignments around the world. And, finally, I want to offer a word of
special thanks to those who have served in harm’s way, and those going
to assignments where an overseas deployment is on your radar. You and
your families will always have our deepest appreciation for your
sacrifices and will remain in our prayers.
*For citations see 366 MILITARY LAW REVIEW [Vol. 204]
