Lessons for Legal Advisors from the Brereton Report

by | Jan 19, 2021

International humanitarian law practitioners and scholars have justifiably dedicated attention to the recent report of the Australian Defence Force (ADF) Inspector General into allegations of violations of the law of armed conflict (LOAC) in Afghanistan, known as the Brereton Report. In reading the Report, practitioners should note the inquiry was expressly appointed to investigate the possibility of “a systemic failure, including of commanders and legal officers at multiple levels” to prevent, investigate, or respond to alleged war crimes.[1] There is much to learn for operational attorneys, especially legal advisors tasked with providing law of armed conflict advice to special operations forces (SOF).

The Report is remarkable due to the thoroughness of the investigation, the gravity of the allegations, and the seriousness of the ADF’s response. Alexandra Koch and Rohini Kurup authored a detailed summary, while Durward Johnson and Michael Schmitt analyzed the Report in light of States’ obligations to investigate war crimes here. See also here and a fascinating analysis of command responsibility here.

Here, I focus specifically on the report’s findings regarding legal advisors, with an eye towards avoiding some of the pitfalls and shortcomings identified in the report. Who is the client—the nation or the unit? What is the line for lawyers between proofreading and unacceptable ghostwriting of operational reporting? What are the dangers that arise when operational attorneys trade their role as an honest broker for the cachet of being associated with elite units, and what preparation may prevent this sort of ethical failing?

Who Is the Client?

The Brereton Report found that some operational lawyers lost sight of the fact that “ultimately their client is—and their professional duties are owed to—the Commonwealth, as distinct from the deployed force, its members, or commanding officer” (pp 114-115, 364). Attorneys assigned to ADF special operations units “drank the Kool-Aid” and lost sight of their “duty to serve the interests of the Commonwealth of Australia, even if that conflicted with the interests of [the unit] or its members” (p 449).

This is worrisome, as “[t]he starting point for a lawyer representing an institutional client is to understand who is the client.”

For U.S. military legal advisors, unless they are properly detailed to represent an individual client as a defense counsel or legal assistance attorney, the client is their service—the Department of the Army, Navy (including Marines), Air Force (including Space Force), or the Coast Guard. As the comment to the relevant Army’s Rule for Professional Conduct makes clear, a legal advisor advises the Army acting through its officers, employees, or members in their official capacities, in particular unit commanders and their staffs. So long as the commander is advancing the interests of the Army, he or she is entitled to the lawyer’s counsel, competence, and confidentiality. A lawyer might disagree with a commander’s decisions for policy or risk mitigation reasons, but the Army commentary emphasizes that the lawyer must respect and accept such decisions even if “their utility or prudence is doubtful.”

However, the moment the interests of the commander or the unit diverge from the interests of the Service—especially criminal behavior, regulatory violations, or “to conceal personal misconduct from Army authorities,” the legal advisor’s duty is to the Service, and that lawyer must employ his or her technical chain to remedy and report wrongdoing. Only rigorous training, character development, and professional preparation can foster the independence and judgment required to proceed in the best interests of the (abstract) client when such interests conflict with those of the (very concrete) unit members.

The ability to maintain an unerring moral compass in the face of a culture that places loyalty to the unit over “loyalty to the truth” is incredibly difficult under ideal circumstances (Brereton Report, p 462). The Brereton Report makes clear that ADF special operations forces legal advisors labored under less-than-ideal circumstances. One legal advisor lamented to investigators that legal advisors often “did not have a clear understanding of what their roles, responsibilities, and expectations were” before deployment (p 449).

Proofreading versus Legal Whitewashing

The Report contains allegations that legal officers engaged in “embellishment” (pp 36, 114) or “legal whitewashing” (pp 524-525) of operational reporting. Operators routinely asked legal advisors to review reports before submission to higher headquarters so the attorney could “ensure that precise terminology was being used correctly,” particularly as it regarded the rules of engagement (ROE) (p 295).

This is (and should be) a common practice for members of a battle staff—after all, a unit’s lawyers are often among the strongest written communicators on the staff. Providing “legal support to assessment of an engagement” is a doctrinal task for Army Judge Advocates, and ghostwriting is implicitly part of a legal advisor’s job.

However, the Report identified this sort of proofreading as problematic. By “doing what lawyers conventionally do—putting the witness’s words into terms that legally express what he understood the witness to have said”—several legal advisors altered the information presented to higher headquarters to make an assault force’s actions appear concordant with the ROE (p 449).

The report notes that the descriptions of assault force actions required to satisfy the ROE “became notorious, and engagements were reporting in a manner which did so, regardless of what had in fact occurred on the ground” (p 447). The operators took the “magic words” legal advisors had inserted into reporting for higher headquarters and parroted those terms in subsequent operational reports. This resulted in talismanic incantations or “boilerplate” that were legally sufficient but factually dishonest, and “sometimes outright fabricated” (p 35). The report makes it clear the legal advisors’ work was not sinister or inappropriate on its face, but practitioners must remain attuned to the difference between adjusting verbiage and inventing facts, scrupulously avoiding the latter.

The best practice is to return drafts to the author with comments instead of making changes to the document. But the resultant “slow-down” in reporting may result in operators bypassing the legal review of reports altogether. Ideally the time required for a thorough legal review yields a better product and reduces misunderstandings and requests for information from higher headquarters, thus adding enough value to compensate for the slower processing of reports.

The Brereton Report suggests that no legal review may be better than a hasty one, in that honest operational reports with inexact terminology are preferable to legally sufficient, but misleading reports. Ultimately, it states that “[i]ntegrity in reporting is fundamental for sound command decisions and operational oversight.” Legal advisors must jealously guard their role as honest brokers during operational reporting.

Loyalty and Dissent

Staff members, including operational attorneys, were reluctant to raise concerns about the veracity of reporting or the appropriateness of operator conduct “as it was seen as disloyal to doubt the operators who were risking their lives” (p 361). This deference to the assaulters on the ground may have stemmed from the insecurity of legal advisors’ position within the unit. One study of Australian special operations forces culture noted with concern “a theme where the support and enabling functions of the SOF community are not valued for the capabilities they provide.”

There is enormous pressure for legal advisors to add value to their commands, and this pressure is perhaps at its apogee in the special operations community. While legal advisors for special operations forces must fight the urge to “get to yes” and tell the client what they want to hear across the legal disciplines, this pressure may be especially pernicious regarding law of war advice. The Brereton Report notes that operators “started to rely more on their own lawyers, with the promise of being inside their ‘elite tent,’ doing cool stuff in return for legally polishing their version of events and the truth in a way that created enough doubt as to exonerate them” (p 524).

The allure of doing “cool stuff” for elite clients is undoubtedly part of the appeal for attorneys advising special operations units. Many special operations enablers—to include legal advisors—are keenly aware they “rent their lockers.” That is, they typically serve a single rotation in the special operations community with the forbearance of the unit leadership, in contrast to operators who spend their entire careers in the organization. The transient nature of these assignments can result in low organization affinity and an uncertain or degraded position within the unit relative to other members. A member’s “attachment to or affinity for his/her respective organizations, and his/her organizational position” are factors that influence the member’s willingness to express dissent. Legal advisors must have the confidence to voice unpopular opinions. That confidence stems from absolute trust in their own legal skills, readiness, and relevant experience.

One protective factor to enable dissent is deep integration with the supported unit, as exemplified by the U.S. Army’s 75th Ranger Regiment. Every Ranger in the Regiment, regardless of occupational specialty, enters the organization through the Ranger Assessment and Selection Program (RASP). Every Ranger—to include the legal advisors—must maintain the same performance standards and abide by the Ranger Creed. This includes a promise to remain “morally straight” and uphold the honor and prestige of the Regiment. The shared ethos and firm foundation as a Ranger provides legal advisors with a firm foundation from which to express unpopular opinions or ask uncomfortable questions, secure that they have earned their place in the “elite tent.” Admittedly, a high level of unit identification risks legal advisors adopting the unit culture for good and ill, to include the “[n]egative aspects of SOF segregation and entitlement.” That danger, however, is mitigated by carefully selecting individuals with the legal skills and experience, moral compass, and personality required to provide principled counsel to special operations formations.

The U.S. Army JAG Corps has recently codified “special operations support” as a discreet legal task under the umbrella of national security law. The Corps acknowledges that “special operations generate specialized legal issues, which takes time, training, and experience.” There are attorneys working at echelons across the special operations enterprise, including USSOCOM headquarters, Theater Special Operations Commands, U.S. Army Special Operations Command, Joint Special Operations Command, the 75th Ranger Regiment, Special Mission Units, and 1st Special Forces Command’s Special Forces Groups. Recognizing that special operations “are built on individuals … who apply special skills with adaptability, improvisation, and innovation,” the Army JAG Corps must ensure it is prepared to specifically manage talent for special operations legal support. The Brereton Report suggests that careful selection of special operations forces legal advisors and close integration with the unit may serve as protective factors against ethical fading or excessive “reticence … to doubt the front-line operators who were risking their lives” (p 34).

***

The failure of oversight mechanisms, lapses of discipline, and cultural problems identified in the Brereton Report are by no means confined to the ADF. The most remarkable aspect of the report may be the ADF’s recognition that “[m]oral authority is an element of combat power,” and the organization’s willingness to respond to indicators of indiscipline with aggressive investigation and “a scathing and unwavering condemnation of ADF conduct, written by the ADF itself.” This is in keeping with what the Australian Army describes as Good Soldiering, an idea that military service must be grounded in an “Australian culture of authenticity, competence, diligence … founded on strength of character and shared values.” This willingness to squarely address the problems—including mistakes by legal advisors—provides an opportunity for operational law practitioners and scholars to learn and adjust their own practice.

Good Soldiering for operational attorneys means working to develop pre-deployment training and attorney assignment processes informed by the concerns identified by the Brereton Report, focusing on ensuring that “[i]nstead of getting after it or getting to yes,” legal advisors are fully prepared to “embrace getting ahead of it and getting to right.”

***

Major Matt Montazzoli is an active duty Army judge advocate, currently attending the Army Command and General Staff College at Fort Leavenworth, Kansas.

***

Footnotes

[1] Commonwealth of Australia, Inspector-General of the Australian Defence Force, Report of Inquiry Under Division 4A of Part 4 of the Inspector-General of the Australian Defence Force Regulation 2016 into Questions of Unlawful Conduct Concerning the Special Operations Task Force Group in Afghanistan (Nov. 10, 2020), at 50 (emphasis added).