The Judge Advocate General's Corps in the Army and at West Point
By 1776, Judge Advocate General (JAG) Tudor was personally conducting trials before courts-martial and other military tribunals. He acted not only as prosecutor, but also as legal adviser to the court and as "friend" of the accused.
While General Washington wanted a judge advocate to oversee the administration of military justice, his concerns also reflected the larger debate about justice and legal authority that was fueling the American Revolution. The new Nation envisioned by the Founding Fathers was a bold social and political experiment: the ‘Rule of Law’ would replace the ‘Divine Right of Kings.’ This Rule of Law was grounded in respect: government would respect individual rights and freedoms, and in return, individuals would respect the government’s obligation to regulate and enforce standards of behavior. It is the Rule of Law, in both civilian life and in the military, that ensures Order, Justice, and Equality.
Since the Revolution, the American Army has had its own lawyers---who assist commanders in enforcing Army standards and reinforcing Army values. Loyalty, duty, respect, selfless service, honor, integrity and personal courage thrive when soldiers know that they will be treated equally, and that rules and regulations apply to all, regardless of rank or assignment. And Judge Advocates have always played a critical role in ensuring that these standards and values are obeyed.
Early years through World War II
Judge Advocates served with honor and distinction in the early years of the Republic. In the Civil War era, Army lawyers played prominent roles in two historic legal events at the end of the conflict: The Lincoln assassination trial and the trial of Captain Henry Wirz, commandant of the infamous Andersonville prison camp. In both cases, Brigadier General Joseph Holt, the JAG at the time, was personally involved in the prosecutions.
During both World War I and World War II, lawyers in uniform provided valuable legal advice to commanders and their staffs and, after leaving active duty, often went on even more high-profile public service jobs. For example, Major Felix Frankfurter, a close friend of JAG Major General Enoch Crowder, was a Judge Advocate from 1917 to 1918; Frankfurter later served as an Associate Justice on the U.S. Supreme Court. Lieutenant Colonel Patrick J. Hurley also served as a Judge Advocate in World War I; Hurley subsequently was Secretary of War from 1929 to 1933 and U.S. Ambassador to China during World War II.
After the Japanese attack on Pearl Harbor, then Colonel Thomas H. Green, who was the Judge Advocate for the Hawaiian Division, became the Executive to the Military Governor for the Territory of Hawaii. In that position, Green oversaw the day-to-day operations of the military government of the islands for the next eighteen months. Under Green’s administration, martial law in Hawaii was an unqualified success, and the procedures of military government that he implemented have since become the model for modern legal thinking on the subject. Green later served as The Judge Advocate General (TJAG) from 1945 to 1949.
At the end of World War II, the Congress determined that the separate War and Navy Departments should be consolidated---with the newly created Department of the Air Force---in a unified defense establishment. An immediate effect of this new Department of Defense (DoD) in 1947 was the need for a unified criminal code that would govern all military personnel. As a result, the Uniform Code of Military Justice (UCMJ) was drafted in 1949, approved in 1950, and took effect on May 31, 1951 in the midst of the Korean War.
Korea and Vietnam
The UCMJ was the most comprehensive change in military law in America's history, providing the individual soldier with needed legal safeguards and establishing a system of judicial review comparable to that enjoyed by civilians. Key provisions included the new right for an enlisted accused to have at least 1/3 enlisted soldiers on the court-martial panel; prior to the enactment of the UCMJ, all courts-martial were heard by juries of officers.
The new UCMJ came into effect while the fighting in Korea was already underway. Judge advocates quickly mastered the new system, aided by their legal specialists. It was during this period the legal specialist series Military Occupation Specialty (or “MOS”) was created, defining the duties and training of enlisted legal clerks. This was part of a continuing effort to establish a formal program of instruction and training for Corps personnel that began in World War II.
The Army’s experience in Vietnam planted the seeds for an end to the almost exclusive focus of judge advocates on military justice---and peacetime legal issues. The murders at village of My Lai, and the investigations and courts-martial that followed, all culminated in a 1974 DoD Directive tasking Army Judge Advocates with a new mission: ensuring that all U.S. military operations complied strictly with the Law of War. Accomplishing this new responsibility now required Army lawyers regularly to immerse themselves in many aspects of operational planning and execution---and thus assume a role that earlier Judge Advocates did not see as part of their duties.
From Grenada to the Wars on Terror
A number of perceptive Judge Advocates realized that this new legal mission inexorably meant Judge Advocate integration into operations at all levels, and they initiated efforts to move the Corps toward this end. The real catalyst for change, however, occurred in late 1983, when American forces launched Operation URGENT FURY. The operation in Grenada was a wake-up call for Judge Advocates, and the Corps’ leadership now formally recognized that a contingency-oriented Army did require, in fact, Judge Advocates adept at handling more than traditional peacetime legal missions. It was essential that Army lawyers now be schooled in a new role and a new legal discipline: operational law---a compendium of domestic, foreign and international law applicable to U.S. forces engaged in military operations at home and abroad.
Over the next fifteen years, the JAG Corps reconfigured its assets and training to support this new Judge Advocate role. By 1989, when U.S. forces began deploying to Southwest Asia as part of Operation DESERT SHIELD, the JAG Corps was ready. Army lawyers, legal administrators and paralegals worked around the clock to solve the legal problems created by the rapid deployment to Saudi Arabia. Commanders at all levels now saw their Judge Advocates as important force-multipliers. They were first class attorneys who prosecuted and defended courts-martial, adjudicated claims, and advised individual soldiers on a variety of personal legal problems. But, their new role meant that these same lawyers also contributed to mission success in countless other ways---from drafting Rules of Engagement and providing advice on targeting, using combat contracting to purchase special fabric for force protection, and assisting Division (G-2) intelligence personnel in gathering war crimes evidence, to constructing bunkers and fighting positions, investigating friendly fire incidents, and drafting war trophy policies.
The September 11, 2001 terrorist attacks on the Pentagon and World Trade Center propelled the United States into a new kind of war. Operation ENDURING FREEDOM began in late 2001 and was followed by Operation IRAQI FREEDOM in 2003. Judge Advocates were part of this war from the beginning. Army lawyers and noncommissioned officer paralegals serving with Task Force Rakkasan arrived in Afghanistan in January 2002, where they provided the full range of legal services. As for Iraq, Judge Advocates assigned to the 3d Infantry, 82d Airborne, and 101st Airborne Divisions, as well as 173d Airborne Brigade and smaller special operations units, were the some of the first members of the JAG Corps to stand on Iraqi soil in March and April 2003.
By 2011, when the final U.S. combat forces were withdrawn from Iraq, more than a million uniformed personnel had deployed to Afghanistan or Iraq, or both. Included in these numbers were thousands of members of the JAGC Regiment, some of whom continue to serve in Afghanistan.
The Future of the Corps
As the Army evolves into a lighter and more lethal force, and as combat and non-combat operations become increasingly demanding, commanders will require soldier-lawyers, legal administrators, and paralegals that can recognize issues and provide solutions quickly.
The JAG Corps is preparing its men and women to meet these challenges. All members of the Regiment now have clear guidance on the role of the law in the Army and how legal support to military operations is provided through operational law and the “Six Core Legal Disciplines” of administrative law, civil law, claims, international law, legal assistance, and military justice.
The JAG Corps is ready for new challenges in the new millennium.
West Point and the JAGC
From the earliest days of the U.S. Military Academy (USMA), the law played a central role in the curriculum, and West Point graduates always have served with great distinction in The Judge Advocate General’s Corps.
As early as 1816, Academy regulations provided that a course in ethics would be taught, and that this course “shall include Natural and Political Law.” In 1821, The Law of Nations, a treatise on international law, was adopted as a textbook and First Class cadets were required to attend four hours of legal instruction a week. Law remained a part of the Academy’s curriculum during the first half of the 19th century, and by the time of the Civil War, cadets were studying the Rules and Articles of War (the forerunner of today’s Uniform Code of Military Justice), criminal law, and evidentiary procedures for courts-martial.
A major development occurred in 1874, when USMA established the Department of Law and the Secretary of War assigned a senior Judge Advocate to be Professor of Law. Since the entire JAG Corps at this time consisted of four officers, this was an important development: twenty-five percent of the entire Corps was at West Point.
Major Asa Bird Gardiner The first Professor of Law at USMA was Major Asa Bird Gardiner, who joined the Corps as a major in 1873. An 1860 graduate of New York University Law School, Gardiner gave up his legal practice at the start of the Civil War and saw considerable combat; he was awarded the Medal of Honor for his gallantry during the battle of Gettysburg.
Probably the most famous Professor of Law was George B. Davis, USMA 1871, who served three teaching tours at West Point and became law department head in 1896. Davis wrote texts on military law and courts-martial, and international law. His Elements of International Law was published in 1900 to rave reviews. Davis later served as TJAG from 1901 to 1911. During his tenure as the Army’s top lawyer, Davis represented the United States at the Geneva Conferences of 1903 and 1906, and the Hague Conference of 1907---all of which were key events in the development of today’s law of armed conflict.
Since Davis’ tenure, USMA graduates have continued to serve in the Department of Law with great distinction. Major General Enoch H. Crowder, USMA 1881, was TJAG from 1911 to 1921. Major General Ernest M. “Mike” Brannon, USMA 1918, served as TJAG from 1950 to 1954. Major General Charles E. “Ted” Decker, USMA 1931, was the first Commandant of the newly opened Judge Advocate General’s School in Charlottesville in 1951; Decker served as TJAG from 1961 to 1963. Major General Wilton B. Persons, Jr., USMA 1946, served as TJAG from 1975 to 1979 and Major General Michael J. Nardotti, Jr., USMA 1969 served as TJAG from 1993 to 1997. Brigadier General Patrick Finnigan, USMA 1971, served first as the Head, Department of Law (1999-2005) and then as the Dean, Academic Board (2005- 2010). The current TJAG is Lieutenant General Dana K. Chipman, USMA 1980, the first graduate in his class to wear three stars and the only Army officer in modern history to go from colonel to lieutenant general in less than two years.
There is no doubt that USMA graduates---and West Point as an institution---will continue to have an important and lasting impact on the JAG Corps.