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Judge Advocate

JUDGE ADVOCATE

A legal adviser on the staff of a military command. A designated officer of the Judge Advocate General's Corps (JAGC) of the U.S. Army, Navy, Air Force, or Marine Corps.

The JAGC was created by george washington on July 29, 1775, only 44 days after he took command of the Continental army. Since that time the U.S. Army's JAGC has grown into the largest government "law firm," numbering 1,500 judge advocates on active duty.

Judge advocates are attorneys who perform legal duties while serving in the U.S. Armed Forces. They provide legal services to their branch of the armed forces and legal representation to members of the armed services. In addition, judge advocates practice international, labor, contract, environmental, tort, and administrative law. They practice in military, state, and federal courts. A judge advocate attorney does not need to be licensed to practice law in the state in which he or she practices because they are part of a separate, military system of justice.

Under the uniform code of military justice, judge advocates are the central participants in a military court-martial (military criminal trial). A judge advocate administers the oath to other members of the court, advises the court, and acts either as a prosecutor or as a defense counsel for the accused. A judge advocate acting as defense counsel advises the military prisoner on legal matters, protects the accused from making incriminating statements, and objects to irrelevant or improper questions asked at the military proceeding. All sentences with a penalty of dismissal, punitive discharge, confinement for a year or more, or death are subject to review by a court of military review in the office of the judge advocate general of the U.S. Army, Navy, or Air Force, depending on the branch of service to which the defendant belongs. A sentence imposed on a member of the Marine Corps would be reviewed by the office of the judge advocate general of the U.S. Navy.

A judge advocate is admitted to the armed services as an officer. Because the Uniform Code of Military Justice is different from civilian law in many respects, a judge advocate undergoes an orientation and then education in military law. The U.S. Army's JAGC school, for example, at Charlottesville, Virginia, provides a ten-week academic course for new JAGC officers to learn about the mission of the corps and to receive an overview of military law.

Each branch of the armed forces has a judge advocate general, an officer who is in charge of all judge advocates and who is responsible for all legal matters affecting that branch of the service. In the U.S. Army and U.S. Air Force, the judge advocate general holds the rank of major general. In the U.S. Navy this officer is a rear admiral. The judge advocate general serves as a legal adviser to the chief of staff of their service and, in some cases, to the secretary of the department.

The public has been given a look at judge advocates through film and television. For example, the movie A Few Good Men (1992) and the television drama JAG both portray judge advocates as prosecutors for military crimes. However, the duties of a judge advocate extend far beyond the military courtroom. Over the past three decades, judge advocates have played a key role in the planning of military strategy for top-secret missions and other wartime issues. Further, judge advocates, along with commanding officers of the armed services, take part in the development and application of rules of engagement, which guide U.S. troops in their use of force.

One of the most important rules that involve judge advocates is target planning. When deciding whether something is a proper target, a judge advocate must first determine that it is a military necessity for the enemy. If it passes the first test, they must investigate whether civilians will be affected. Finally, they must perform a balancing test. The possible loss of civilians and their property—often referred to as "collateral damage"—cannot be excessive, as compared to the military gain achieved by the attacks. Judge advocates also identify targets that are offlimits. In these wartime contexts, target selection clearly becomes a life-or-death decision.

During the vietnam war, only one judge advocate was called upon by the U.S. Air Force to give operations law advice. Major Walter Reed, who would later become judge advocate general of the U.S. Air Force, advised which targets were restricted by the military's rules of engagement and the Law of War, the codified laws created by the Hague Convention in 1907, to which most nations adhere. However, in 1972, Air Force General John D. Lavelle attacked targets in North Vietnam and thus violated the rules of engagement.

Lavelle claimed that his superiors had supported the attacks and that the targets had been included in the rules of engagement when, in fact, they had not been. It then became clear that the drafting, training, and execution of the rules of engagement needed more careful review. The Joint Chiefs of Staff Peacetime Rules of Engagement (later renamed the Standing Rules of Engagement) were established, and judge advocates were called upon to interpret the rules and to advise combat commanders in the planning and execution of military operations. Now, judge advocates are the primary developers of the rules of engagement and their application for military missions. All use of force must be authorized by these rules. In addition, the rules must be clear, yet flexible, so that a soldier is able to make an on-the-spot decision in critical situations.

During Operation Desert Shield and Operation Desert Storm, over 250 judge advocates were stationed in Saudi Arabia. The judge advocates provided significant support, which included the review of all target lists, the training of troops on the rules of engagement, parachuting in with army troops, and deciding the issue of whether the enemy could be buried alive—to which the answer was yes. The judge advocates printed pocket-size cards, which provided peacetime and wartime rules, for troops to carry. The important role played by judge advocates continued as the United States attacked Afghanistan, in 2001, and Iraq, in 2003, as part of the war on terrorism.

further readings

The Judge Advocate General's Legal Center and School Website. Available online at <www.jagcnet.army.mil/tjagsa> (accessed August 17, 2003).

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