As a JAG IMA I was assigned to Fort Leavenworth, the Command and General Staff College. My work included prosecutions and Article 32 investigations for general courts martials. As a Lieutenant Colonel, I was tasked to explain to a three-star general why a request was not lawful. It is the job of a JAG or a civilian lawyer to support the law. The rule of law — military or civilian — will not work by constant exception to its letter and spirit. Generals and presidents by their oaths, must obey the law. The general followed my advice.
You do not command from above but from your heart and soul. As a trial advocate, you owe your client the best possible representation within the bounds of the law and the rules of professional responsibility. In life when I have failed, it was because I did not follow my values.
Before my son made his first deployment to Iraq, we went for a walk in the woods. He was being deployed with a combat unit and ended up accompanying Ranger units on raids in Mosul. Reports were in the news about the prison at Abu Ghraib, about torture and human rights violations. I told him if he was given an unlawful order, disobey it.
I could think of no instance where a soldier had been tried for disobeying an illegal order. The Geneva Convention is a good guide, but your conscience is a better one. As Dayton Attorney Merle Wilberding, who responded to Lt. Calley’s appeal from conviction for crimes committed at My Lai, said in these pages, he knew Calley was guilty because his conduct violated the “common sense rule.” Other soldiers knew the killing of civilians was wrong and did not participate in the massacre.
My son survived two tours. On Christmas day 2004, his mess hall was blown up and a beloved platoon sergeant was killed. His measure of soldiers was who went outside the wire. After this first tour, within days of his return, the Army discovered he had a broken hip from jumping out of helicopters and he was diagnosed with a traumatic brain injury following the blast of an IED.
He described a superficial psych eval designed to check the boxes. He was asked whether he had seen dead bodies or killed anyone. His response was “Isn’t that why you sent me there?”
Later, assigned to a NATO HQ in Naples, Italy he volunteered for a second tour because no one else in his unit had any experience. I was, and still am, proud that he remained true to his values.
Justice Department attorneys have resigned from their jobs rather than do the wrong thing. Lawyers in the Southern District of New York resigned when ordered to dismiss a righteous prosecution. Hagan Scotten, Harvard graduate and the recipient of two Bronze Stars, wrote, “If no lawyer within earshot of the President is willing to give him that advice [not to dismiss], then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.” In February, Trump without warning fired The Judge Advocates Generals (TJAGS), the chief legal officers of the Army, Navy and Air Force.
In Henry IV Part 2, Dick the Butcher says “the first thing we do, let’s kill all of the lawyers.” Justice John Paul Stevens once wrote in an opinion that this line in Shakespeare suggests “disposing of lawyers is a step in the direction of a totalitarian government.”
I took an oath as a soldier, a lawyer and member of various state and federal courts. I gave the oath to my son when he entered the military: “I will preserve, protect and defend the Constitution of the United States...”
The light of liberty is being snuffed out across America. The dictatorship has begun. Join those who have spoken up. Our silence condones tyranny. Do not let the Republic die in silence.
David Madden was a trial lawyer, Inf. Officer, LTC JAG Corps and taught law at NSU and American History and Military History at RSU.
About the Author