Command Authority, Undue Command Influence and the Role of the Staff Judge Advocate
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Command Authority, Undue Command Influence
and the Role of the Staff Judge Advocate
KATHRYN SOBOTTA*
INTRODUCTION
Military commanders bear the burden of winning America's wars, first and
foremost. As a matter of policy, they are also tasked with numerous competing
priorities such as leading service members, managing risks against mission
requirements and also maintaining good order and discipline throughout the
ranks. Staff Judge Advocates, who are assigned as the advisors of those same
commanders, must also balance competing interests such as loyalty to the
Constitution, adherence to the rules of ethical conduct modeled after the ABA
Model Rules, a commander's lawful orders, and an interest in his or her own ca-
reer progression.2 Perhaps unsurprisingly, some might find it hard to believe that
commanders or their legal advisors might successfully align these interests seam-
lessly. Others consider such a feat impossible. Cynics view Department of
Defense leaders as struggling to maintain good order and discipline, trying to bal-
ance mission accomplishment with holding service members accountable for eth-
ical shortcomings, violations of regulations and even criminal acts. Proponents of
the current system view exclusive oversight of a unit, including the administra-
tion of justice, for commanders as an essential tool to retain that same good order
and discipline. Ultimately, a commander is equipped with a plethora of tools to
enforce both the military's objectives as well as his or her intent.
For the purposes of brevity and clarity, this Note will focus on the Army's
Judge Advocate Corps and justice system. The concerns addressed in this Note,
however, affect each service similarly. This Note will first examine a military jus-
tice and command structure that was established during a time that could not
have foreseen the issues that it faces today: things like cyber warfare,
* J.D., Georgetown University Law Center (expected May 2020); B.S., United States Military Academy at
West Point (2009). c 2018, Kathryn Sobotta. Kathryn Sobotta served as an Army Officer from 2009 until 2014
and is a combat veteran of both Iraq and Afghanistan.
1. See generally U.S. DEP'T OF THE ARMY, REG. 600-20: PERSONNEL-GENERAL, ARMY COMMAND POLICY
1-2, 7-8 (6 Nov. 2014) [hereinafter AR 600-20: ARMY COMMAND POLICY] (providing an inclusive but not ex-
haustive list of a commander's obligations).
2. See generally U.S. DEP'T OF THE ARMY, FIELD MANUAL 27-100: LEGAL SUPPORT TO OPERATIONS Vii-X
(Mar. 1, 2000) [hereinafter FM 27-100: LEGAL SUPPORT TO OPERATIONS] (discussing both the legal positions a
Judge Advocate may have and the litany of obligations he or she has). The regulation has been subsequently
updated though changes are not substantively related to the assertions herein.
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Command Authority, Undue Command Influence and the Role of the Staff Judge Advocate
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