31 Geo. J. Legal Ethics 847 (2018)
Command Authority, Undue Command Influence and the Role of the Staff Judge Advocate

handle is hein.journals/geojlege31 and id is 867 raw text is: 






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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