# How independent are Military lawyers who serve as defense counsel in a court martial? **URL:** \ **Category:** Factual Questions\ **Created:** [August 4, 2013, 12:35pm UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314 "2013-08-04T12:35:20Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 29, 2017, 6:23pm UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/21 "2017-06-29T18:23:52Z")
> [@AK84](#): > > I am a lawyer and the same pressures and inducement are on offer in the civil world also. True, but most lawyers in the civilian world are in private practice. A litigator at a private firm is hardly going to be told by a senior lawyer/partner to throw a case. If the firm has some sort of obligation to the adverse party, they would presumably have been conflicted out of the representation anyway. ---
**Author:** ![Banksiaman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banksiaman/32/3334_2.png) [@Banksiaman](https://boards.straightdope.com/u/Banksiaman)\ **Post date:** [June 29, 2017, 11:56pm UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/22 "2017-06-29T23:56:03Z")
> [@FormerJAG](#): > > (2) an excellent defense attorney that played “hard-ball” while defending his Australian client and was overtly threatened with court-martial for his aggressive tactics and expenditure of funds to defend his client—in the end the defense attorney succeeded in having his client returned to Australia, the defense attorney also retired and moved to Australia for civilian attorney job; and The Guantanamo detainee was Australian Scott Hicks, and he was defended by Major [Mike Mori](https://en.wikipedia.org/wiki/Michael_Mori). Australia’s legal system closely follows British practice, so you don’t see attorneys splashed all over TV [if this is foreign to you, think John Cleese’s character in A Fish called Wanda], but Mori prosecuted his case, which partly about the case, and partly about the Australian govt wanting to position itself favourably with the US, vigorously in the media as well. I remember being incredibly impressed at his willingness to take up his client’s case and push his defence to the potential detriment of his own career. As something real rather than TV it was eye-opening just how strongly he fought for a guy who, generously, was where he was because he was a dickhead. ---
**Author:** ![FormerJAG](https://avatars.discourse-cdn.com/v4/letter/f/ecb155/32.png) [@FormerJAG](https://boards.straightdope.com/u/FormerJAG)\ **Post date:** [July 3, 2017, 3:50am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/23 "2017-07-03T03:50:00Z")
Yeah, Mori was the defense attorney. He is also the guy that won his Board appeal and rose to a military judgeship. [I kinda accidentally blended details of the first two Guantanamo defense attorneys in my first post—the first guy simply got passed over twice and screwed—despite winning a U.S. Supreme Court case.] ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [July 3, 2017, 4:11am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/24 "2017-07-03T04:11:36Z")
Are there anti-retaliation rules in the military like the whistleblower rules in civilian business, whereby you cannot be legally retaliated against for uncovering wrongdoing? ---
**Author:** ![FormerJAG](https://avatars.discourse-cdn.com/v4/letter/f/ecb155/32.png) [@FormerJAG](https://boards.straightdope.com/u/FormerJAG)\ **Post date:** [July 3, 2017, 5:20am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/25 "2017-07-03T05:20:04Z")
Yes, there are rules/law related to retaliation—including a Military Whistleblower Protection Act as well as an I.G. complaint system. But let’s just say that the I.G.'s office may give your complaint short shrift, you might receive some junk reply from an administrative board (or even the court system) that the MWPA (at least one or more version of the older MWPA) doesn’t specifically state it was intended to provide any type of monetary relief for people relying upon it when retaliated against (i.e., “thanks for your service, your wonderful display of integrity and your dutiful willingness to sacrifice your military career to make a MWPA complaint is duly noted, by the way don’t let the doorknob hit your a$$ on the way out”). Furthermore, the courts will nearly always side with the decision of any final administrative board from the military—as courts are extremely leery to second guess military decision making on careers, service members are generally only entitled to very specific protections and routes of administrative relief, final administrative board decision are generally presumed proper no matter how ridiculous they may seems, or my favorite—“Well the military may not have acted properly with regard to this issue, but there is at least a scintilla of evidence of some other type of short-coming in this servicemember—be it manufactured, produced after the fact to justify a servicemember’s termination, or otherwise—so ‘no harm, no foul’”. ---
**Author:** ![FormerJAG](https://avatars.discourse-cdn.com/v4/letter/f/ecb155/32.png) [@FormerJAG](https://boards.straightdope.com/u/FormerJAG)\ **Post date:** [July 3, 2017, 5:28am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/26 "2017-07-03T05:28:03Z")
Yes, there are rules/law related to retaliation—including a Military Whistleblower Protection Act which relates to the I.G. complaint system. But let’s just say that the I.G.'s office may give your complaint short shrift, you might receive some junk reply from an administrative board (or even the court system) that the MWPA (at least one or more version of the older MWPA) doesn’t specifically state it was intended to provide any type of monetary relief for people relying upon it when retaliated against (i.e., “thanks for your service, your wonderful display of integrity and your dutiful willingness to sacrifice your military career to make a MWPA complaint is duly noted, by the way don’t let the doorknob hit your a$$ on the way out”). Furthermore, the courts will nearly always side with the decision of any final administrative board from the military—as courts are extremely leery to second guess military decision making on careers, service members are generally only entitled to very specific protections and routes of administrative relief, final administrative board decision are generally presumed proper no matter how ridiculous they may seems, or my favorite—“Well the military may not have acted properly with regard to this issue, but there is at least a scintilla of evidence of some other type of short-coming in this servicemember—be it manufactured, produced after the fact to justify a servicemember’s termination, or otherwise—so ‘no harm, no foul’”. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [July 3, 2017, 7:21am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/27 "2017-07-03T07:21:57Z")
Not sure if Gitmo is necessarily representative. Gitmo is the poster child for kangeroo courts. ---
**Author:** ![Quercus](https://avatars.discourse-cdn.com/v4/letter/q/7ab992/32.png) [@Quercus](https://boards.straightdope.com/u/Quercus)\ **Post date:** [July 3, 2017, 1:01pm UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/28 "2017-07-03T13:01:01Z")
> [@Donnerwetter](#): > > In the civilian world, it’s the job of an attorney in a criminal trial to do all he can to put the prosecution and law enforcement in a bad light. He will accuse the state of grave mistakes and of withholding exculpatory evidence. He is going to show that the police detectives are a bunch of drunken, incompetent, racist, negligent high school dropouts who were only hired because the police chief is their father-in-law. > > In other word, it’s the defense counsel’s job to give the prosecution hell. He is paid by his client to do precisely this. If the district attorney hates his guts, he doesn’t care. > [@madsircool](#): > > Only a defense lawyer isnt allowed to throw around unsubstantiated nonsense. Any lawyer who does the above will likely be sanctioned. A trial is a finding of facts. Well, the defense lawyer can certainly accuse the state of grave mistakes in her opening and closing statements, and if there’s evidence of such (and it’s relevant to the defense) present it during the trial. And, if there’s substantive reason to think the state is witholding exculpatory evidence she damn well better be accusing them of it (to the judge before the trial, but still). If she can present evidence that the detectives are racist, and has a plausible connection with her defense, then she certain can do that (and, in fact, Johnnie Cochran did just that very successfully in a certain well-known murder trial) ---
**Author:** ![FormerJAG](https://avatars.discourse-cdn.com/v4/letter/f/ecb155/32.png) [@FormerJAG](https://boards.straightdope.com/u/FormerJAG)\ **Post date:** [March 21, 2018, 3:17am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/29 "2018-03-21T03:17:21Z")
> [@Elendil\_s\_Heir](#): > > Not so: > > [Judge Advocate Division | JAD | Marines](https://www.marines.com/becoming-a-marine/officer/marine-corps-law-program.html) > [https://www.uscg.mil/legal/Practice.asp](https://www.uscg.mil/legal/Practice.asp) > Nitpick - it’s the “U.S. Marshals Service”: [https://www.usmarshals.gov/](https://www.usmarshals.gov/) As to Navy providing legal services for Marines and Coast Guard you may consider yourself corrected by seeing [https://www.uscg.mil/Portals/0/Headquarters/Legal/mj/MJ\_Docs/Chapter%2012%20Reference%20-%20CG%20-%20Navy%20MOU%20for%20Defense%20Support.pdf](https://www.uscg.mil/Portals/0/Headquarters/Legal/mj/MJ_Docs/Chapter%2012%20Reference%20-%20CG%20-%20Navy%20MOU%20for%20Defense%20Support.pdf) and [Naval Legal Service Command - Wikipedia](https://en.wikipedia.org/wiki/Naval_Legal_Service_Command) and [http://www.jag.navy.mil/njs.htm](http://www.jag.navy.mil/njs.htm) . As for misspelling Marshals (i.e., one word in a very long post) get a life. If your experience in these matters is to be able to consult “a couple of friends” perhaps you should focus on reading responses rather than trying to nitpick the responses of others. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 21, 2018, 5:37pm UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/30 "2018-03-21T17:37:50Z")
> [@AK84](#): > > Not sure if Gitmo is necessarily representative. Gitmo is the poster child for kangeroo courts. Recall the case of Omar Khadr, a Canadian child soldier who was prosecuted and eventually pled guilty just to get out of Gitmo. (Since when does any country prosecute the foot soldiers in a shooting war, especially one where they invaded the country, especially child soldiers?) During the on-again-off-again trial attempts, the details of the case were “accidentally” released, including the detail that after the US soldiers entered the building where Omar was lying wounded, another combatant was also still moving - so he may not have been the one that tossed the grenade. I suspect the release of such details was a passive aggressive “accident” by someone in the chain who objected to the kangaroo nature of the court setup. ---
**Author:** ![FormerJAG](https://avatars.discourse-cdn.com/v4/letter/f/ecb155/32.png) [@FormerJAG](https://boards.straightdope.com/u/FormerJAG)\ **Post date:** [October 25, 2019, 4:03am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/31 "2019-10-25T04:03:55Z")
Well after 18 years, I’m finally able to defend against adverse action (including loss of career) resulting from refusing to breach client confidentiality when demanded by superior, opposing counsel (via a recently filed AFBCMR application after final denial of relief from AF TJAG). Seriously doubt I’ll see any relief given the mindset of boards to correct military records when promotion/dollars are involved; but at least I won’t be some old man in a nursing home wishing I had taken action. ---
**Author:** ![Rocketeer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rocketeer/32/4437_2.png) [@Rocketeer](https://boards.straightdope.com/u/Rocketeer)\ **Post date:** [October 25, 2019, 5:41am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/32 "2019-10-25T05:41:39Z")
Good luck! ---
**Author:** ![Peter\_Morris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peter_morris/32/359_2.png) [@Peter\_Morris](https://boards.straightdope.com/u/Peter_Morris)\ **Post date:** [October 25, 2019, 9:57am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/33 "2019-10-25T09:57:21Z")
> [@Alley\_Dweller](#): > > If I recall correctly from A Few Good Men, the defense counsel was warned by other lawyers and the judge that if he questioned the veracity of the officer he was cross-examining and didn’t have absolute proof that the officer had lied, he himself might be subject to a court martial. > > Was that accurate? And if so, wouldn’t that discourage a vigorous defense? I thought of the same question. Does anyone have an answer for this? ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [October 25, 2019, 2:20pm UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/34 "2019-10-25T14:20:25Z")
Congratulations FormerJAG. What kind of relief would you hope for in a case like this and what kind of relief do you expect (if you are so inclined to share). I wasn’t around when this question first came up but I have a friend who was a Navy JAG and now works as a civilian employee for the Air Force JAG corps. I know she has strong opinions about the relative lack of independence of Navy JAG defense counsel. When she started, she explained how there were lots of conflicts in the bad old days but they had been remedied with various measures over the years. After serving a few years and seeing how these conflicts played out, she was less sanguine that the Navy’s conflicts management changes had really improved things. I forget the details though. ---
**Author:** ![FormerJAG](https://avatars.discourse-cdn.com/v4/letter/f/ecb155/32.png) [@FormerJAG](https://boards.straightdope.com/u/FormerJAG)\ **Post date:** [October 27, 2019, 11:00am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/35 "2019-10-27T11:00:00Z")
> [@Rocketeer](#): > > Good luck! Thanks for the well wishes. ---
**Author:** ![FormerJAG](https://avatars.discourse-cdn.com/v4/letter/f/ecb155/32.png) [@FormerJAG](https://boards.straightdope.com/u/FormerJAG)\ **Post date:** [October 27, 2019, 11:11am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/36 "2019-10-27T11:11:11Z")
> [@Peter\_Morris](#): > > I thought of the same question. Does anyone have an answer for this? No, likely not accurate—but there are so many other ways for a military leader/supervisor to hurt a defense attorney other than court-martial. One big way—write a negative performance report and be sure to include (or later be able to point to) at least one semi-nonlaughable reason other than the “true” reason (e.g., your shifty defense attorney ways made us look bad). This will essentially end the defense attorney’s career with little chance the defense attorney will be able to (1) definitively prove the “true” reason for the negative performance report; and/or (2) disprove the “fake” reasons for the negative performance report. In my own case, my superiors considered court-martialing me for refusal to breach client confidentiality to provide demanded information; but subsequently elected over methods to eliminate me from their ranks. ---
**Author:** ![FormerJAG](https://avatars.discourse-cdn.com/v4/letter/f/ecb155/32.png) [@FormerJAG](https://boards.straightdope.com/u/FormerJAG)\ **Post date:** [October 27, 2019, 11:31am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/37 "2019-10-27T11:31:20Z")
> [@Tired\_and\_Cranky](#): > > Congratulations FormerJAG. What kind of relief would you hope for in a case like this and what kind of relief do you expect (if you are so inclined to share). > > I wasn’t around when this question first came up but I have a friend who was a Navy JAG and now works as a civilian employee for the Air Force JAG corps. I know she has strong opinions about the relative lack of independence of Navy JAG defense counsel. When she started, she explained how there were lots of conflicts in the bad old days but they had been remedied with various measures over the years. After serving a few years and seeing how these conflicts played out, she was less sanguine that the Navy’s conflicts management changes had really improved things. I forget the details though. I requested removal of an offending referral OPR, retroactive rank (or Special Selection Board opportunities), reinstatement into the IRR, imputed backpay/benefits including retirement points, and opportunities to complete PME via correspondence. However, given the history of BCMR decisions, I expect to recovery absolute nothing as they will likely assert something along the lines of “but there is no way that you can prove with absolute certainty that the pertinent referral OPR was not as least partially issued for some other reason other than you refused to breach client confidentiality”—a ridiculous reason for permitting adverse action given that there is generally no way to prove a negative with certainty in such circumstances (but just try to prove to a District Court on judicial review that such a military administrative decision should be overturned and see what happens). In a nutshell, adverse actions against defense counsel by defense counsel superiors (from the opposing side no less) do nothing but undermine military justice. But as much as my own situation naturally has special importance to me, there are whole swathes of people who likely have personal experiences much more horrific than my own (e.g., thousand of women, and some men, who are put out of the military with “bad paper” for merely daring to file a sexual assault/harassment complaint, with the military suddenly “discovering” that these complainants are “mental cases” that must be put out (Gee, imagine that, a sexual assault/harassment victim that might suffer mentally stress from their original ordeal and then get stressed again by the extremely poor handling of their complaint and undeserved reprisal.) ---
**Author:** ![Horatio\_Hellpop](https://avatars.discourse-cdn.com/v4/letter/h/e5b9ba/32.png) [@Horatio\_Hellpop](https://boards.straightdope.com/u/Horatio_Hellpop)\ **Post date:** [October 27, 2019, 12:34pm UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/38 "2019-10-27T12:34:46Z")
> [@Alley\_Dweller](#): > > If I recall correctly from A Few Good Men, the defense counsel was warned by other lawyers and the judge that if he questioned the veracity of the officer he was cross-examining and didn’t have absolute proof that the officer had lied, he himself might be subject to a court martial. > > Was that accurate? And if so, wouldn’t that discourage a vigorous defense? I’m neither a lawyer nor military, but that’s good advice for any trial lawyer. A truism among trial lawyers is, don’t ask any question you don’t already know the answer to. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [October 28, 2019, 12:59am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/39 "2019-10-28T00:59:13Z")
> [@Donnerwetter](#): > > I was trying to provide a somewhat colorful description 😉 > > I remember a murder trial in (I believe) Florida in which a defense lawyer cross examined a young lady on the witness stand who was a crime scene technician. She also happened to have had an extramarital relationship with one of the police detectives in the case, but hadn’t been entirely forthcoming about this fact. There was absolutely no indication that this relationship was remotely relevant to the case, but the defense attorney kept pounding the poor woman and embarrassing her in public. The defense lawyer can ask “did you falsify evidence on the behest of Detective X?” (or a less blunt but leading version of the same question). The answer of course will be no, except in the vanishingly rare event that she actually did; but that’s not the point. The point is to get a jury to at least wonder if the accused is being railroaded and how easy it would be to do so if collusion were involved. And that’s the key difference: in civilian trials the prosecution and defense are trying to sway a jury, by any appeal to emotion or prejudice that will do the job. A military tribunal of judging officers, much less so. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [October 28, 2019, 2:39am UTC](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314/40 "2019-10-28T02:39:01Z")
> [@Lumpy](#): > > A military tribunal of judging officers, much less so. Why do you think a panel of officers, and possibly enlisted, pulled (albeit not exactly at random) from the ranks would be less subject to emotion or prejudice than an average juror? [Previous page](https://boards.straightdope.com/t/how-independent-are-military-lawyers-who-serve-as-defense-counsel-in-a-court-martial/665314.md?page=1)