What does Congress Think About the Experience of the Military’s Attorneys?

Congress authorizes the use of civilian counsel when military counsel does not have sufficient expertise.  What does this mean for your case?

On 12 December, President Donald Trump signed into law the National Defense Act of 2017.  In relevant part, Section 532(c) of the law states:

(c) Use Of Civilian Employees To Advise Less Experienced Judge Advocates In Prosecution And Defense —The Secretary concerned may use highly qualified experts and other civilian employees who are under the jurisdiction of the Secretary concerned, are available, and are experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process.”.[1]

This is good, right?

At first glance this might appear to be a good change.  Indeed, if your military counsel isn’t sufficiently qualified to defend you, then of course he or she should seek assistance.  However, the real question is, if your military counsel isn’t sufficiently qualified to defend you, why are they being allowed to do so?  And, more importantly, why are you using them?  Indeed, one person has recently (and correctly) opined that this change is nothing short of “outsourc[ing] a core competency of the judge advocate communities” to civilians.[2]  Many others agree.[3]

So, what does this mean for you?

Having served in the military for eight years, including as a court-martial defense counsel and an appellate defense counsel, I believe this change in the law says something important.  Before the change, the military commonly used an informal system of assisting lesser experienced attorneys.  For example, if the attorney or his or her superiors did not believe the attorney was sufficiently experienced for a case, a more experienced counsel could be brought on to “assist.”  Of course, the amount of assistance received depended in part on how busy the more experienced counsel was.  What this change in the law says, in my view, is that Congress does not believe the military’s system was sufficient to properly safeguard military members.  In other words, it appears to be Congress’ view, at least in some cases, that the military lacks the necessary experience to properly defend military members in courts-martial trials and appeals.  And, to fix this significant problem, Congress is allowing the military to reach out and use civilian attorneys.

So, I’m protected, right?

Well, that depends.  I think the first question is, “who in the military is selecting the civilian attorneys?”  The second, and more important question is, what criteria are being used to determine how qualified the civilian attorneys are?  These questions are not addressed by the law.  Having seen how the military works first-hand, I also have a significant concern about the implementation of this law because very few military attorneys (or superior officers) will want to request a civilian counsel for all but the most high-profile cases.  Why?  Because those officers will not want to admit the military cannot handle the case.  So, if your charges are not considered “high-profile” enough, then it seems very likely to me that your military counsel will not seek the needed help for fear of looking like they cannot handle the case.  This is despite Congress’ concerns that some counsel may not be sufficiently experienced.

Civilian vs. Assigned Military Counsel

In deciding whether to use your assigned military counsel or choose your own civilian counsel, you must consider several factors, including those discussed here. You should also look closely at how experienced anyone your thinking of hiring is.

While in the military, I was ranked as the as the best appellate defense counsel in the Air Force.  Because of my experience, when I separated I was hired by a federal appeals judge at the Court of Appeals for the Armed Forces as his senior legal advisor.  I continue to practice in military appeals because I believe that, like civilians, military members should have the best defense possible.

If you have been convicted at a court-martial, please give me a call.  Initial consultations are free, and I would be happy to discuss your case with you to see how I can best help.


[1] NDAA 2017, § 532(c).

[2] http://www.caaflog.com/2017/12/18/military-justice-provisions-in-the-fy18-ndaa/.

[3] Comments, http://www.caaflog.com/2017/12/18/military-justice-provisions-in-the-fy18-ndaa/.

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