The Judge Advocate as Strategist
Dan Maurer
Creativity is a muscle. Use it.[1]
Introduction
“Everything in war” Clausewitz wrote, “is simple, but the simplest thing is difficult.”[2] The same is true of military criminal justice: prosecute the “bad guys,” protect the innocent and the victims, and move on to the next case, thereby remedying an injustice and helping commanders fight their battles more effectively and efficiently.[3] These apparently simple-stated duties for those criminal justice practitioners are, of course, exceptionally hard. Consider, for instance, just the recent changes to military justice practice in the traditional two-party adversarial system under the ultimate authority of the commander: the introduction of special victim counsel, special victim prosecutors, special victim and witness liaisons, restrictions to the convening authority’s clemency power, and the effect of victims’ influence over sentencing.[4] Or consider the changes proposed by the Department of Defense’s Military Justice Review Group that may still affect our practice: victim input into the disposition decision by the commander, changes to the court-martial panel process, reforming our sentencing structure with guidelines, and even rethinking the standard for appellate review of guilty pleas.[5] Grasping, practicing, and advising under these complications—on top of what they must already attempt to master—is understandably overwhelming to Trial Counsel. Because they advise commanders who grew into their quasi-judicial role in an earlier era of military justice, and who have an operational experience during the Global War on Terror in which military justice was less prominent,[6] the situation is a bit like leading a platoon that had been trained under a Cold War doctrine of firepower and maneuver, awkwardly and uncertainly placed in urban counterinsurgency for the first time. Trial Counsel, like combat platoon leaders, are stationed at the “forward edge of the battle area,”[7] so-to-speak, and therefore face hard choices, clogged by these practical sources of courtroom and chain-of-command “friction”[8] and complex conditions daily. Importantly, judge advocates do not make those hard choices alone, and are not the ultimate decider-in-chief.
http://smallwarsjournal.com/jrnl/art/the-judge-advocate-as-strategist
