Back when I was active in the Nationals Guard and Reserve, I would visit other Army units to coordinate exercises, gather information or for some particular need. I soon noticed that when subordinate members of the unit would freely chat with an unknown captain or major, that was very likely a strong unit, with good morale. If the lower ranking member would not chat with me, that indicated problems. The military is like a large corporation, with different corporate culture in each unit.

In today’s corporate culture, social media has made it easier for employees to chat publicly about their experiences. Uber received a lot of blow back when one engineer described the ride-sharing company as chaotic, sexist and overly aggressive. Susan Fowler wrote a blog post about her year at Uber. The attention has grown so much that it may affect the value of a likely IPO later this year for the business. See San Antonio Express News report.

Ms. Fowler mentioned how she was propositioned by a male senior manager and that Human Resources often protected “high performers” at Uber. Consumers who notice issues between employees notice that tension, according to research at Georgetown University. That research found consumers react strongly to perceived problems with a particular brand. Christine Porath, the Georgetown researcher, also found that companies that devoted more attention to the welfare of its workers performed better during the recent economic crisis.

Uber’s CEO reacted to Ms. Fowler’s blog, saying the company would heal the wounds and build a better corporate culture. Yes, employees, all employees, matter. Human Resources, often overlooked, is on the front lines of that culture. In military terms, we would describe HR as a “force multiplier.” HR provides much more value that simple processing of forms. It makes the other departments better. The corporations, and military units, that appreciate that will become much more productive.


One of the great things about practicing law is working with people. We see people often at their worst, sometimes at their best, but always as their genuine selves. From a Texas Bar Journal, I find this story about two spouses who prosecuted their own divorce. The two spouses wrote their own divorce decree. Since they were planning to continue to share the same house until it was sold, they came up with some rules on sharing that household, which they hoped would minimize friction:

  • Husband shall exceptional care during and after Dallas Cowboys games to not break any material objects in the house and to remain cordial to wife, who is not responsible for the outcome of sporting events (emphasis in the original).
  • Wife shall endeavor to give Husband the space he needs to recover from Cowboys losses.

That is just two people trying to work things out…..

The colonel hearing the court martial of Bowe Bergdahl will not dismiss the charges against the young sergeant. He agreed the comments by then Candidate Trump were troubling. But, he would not agree they were so pervasive and unfair as to saturate the community and cause prejudice. See CNN news report. The lawyer for SGT Bergdahl will appeal.

All I can say is the defense has a pretty good appeal issue now or later. Candidate Trump’s comments were very unwise. He repeatedly referred to SGT Bergdahl as a traitor during his campaign.

Its a fundamental part of the military court martial process that a commander may not discuss a pending court martial. Anything a general says will prejudice the military jury. But, what happens when the commander speaking about a prominent court martial is a candidate for president? Donald Trump spoke often about Bowe Bergdahl. The candidate referred to him as a traitor many times and at least once, suggested he be dropped out of a plane. Candidate Trump is now Pres. Trump. His words have consequences.

SGT. Bergdahl’s lawyers have filed a motion claiming they cannot obtain a fair trial. The Army lawyers have responded that the use of the term “traitor” was not meant in a legal way, but in a “conversational” sense, whatever that might mean. They also argue that no reasonable person would interpret Candidate now Pres. Trump’s words as anything other than campaign rhetoric. Again, I do not know what that means. Words have consequences. The military lawyers cannot un-ring the bell. They cannot withdraw or undo Mr. Trump’s words. I am doubtful the Army authorities will accept that sort of explanation. See CBS news report. If these remarks had been made by a general, there is no question the court martial would be dismissed. Those sorts of remarks do indeed prejudice any potential military jury. That the remarks were made by a candidate for President might make a difference. We will see.

There is a reason why candidates for any office generally refrain from commenting about pending cases.

There are many issues with Pres. Trump’s travel ban. One important consideration is the risk it poses to U.S. troops serving in Iraq and Afghanistan. We still have several thousand soldiers in Afghanistan and a few hundred in Iraq. Add to that the thousands of U.S. civilians in support of the soldiers serving in those two countries and you have a good many Americans who serve as handy targets for ISIS and Al Qaeda. Political issues that affect the Middle East reverberate in Iraq and Afghanistan. The jihadis are motivated when they hear the U.S. or Western nations supposedly oppressing Moslems.

When I served in Iraq, every staff tracked attacks on Coalition (i.e., U.S.) forces. The statistics were part of the daily briefing presented to every commander. We knew there would be a spike in attacks anytime Middle East or Israel issues became part of the public debate in America. It was part of our intel or “enemy situation” briefing. It is without doubt that right now as we speak, soldiers in Iraq and Afghanistan are scaling back their activities to some degree to avoid the large spike in attacks. For your average revenge minded terrorist, mainland U.S. is a long way to go. But, northern Iraq and central Afghanistan not so much. See the Brian Chasnoff column in the San Antonio Express News in which Rep. Will Hurd speaks to that concern. Congressman Hurd is a former CIA officer. He would know. As a former U.S. Army officer, I also know. Talk tough here. But, over there, they pay the price.

Donald Trump advocated torture during his campaign. He even advocated targeting the families of alleged terrorists. “Task & Purpose,” a nice veterans website, discusses the legal ramifications for soldiers during a Trump administration. As the post explains, Mr. Trump argued in favor of water boarding “and a helluva lot worse than waterboarding” during the campaign. Recently, he walked his comments back a bit. But, then Mike Pence, the new Vice-President, said the administration would never discuss what it would never do. So, torture and unlawful killing may still be on the agenda. The post points out that the USA did not agree to the international agreement that created the International Criminal Court. So, the only enforcement power for a soldier refusing to obey an unlawful order would be the same executive branch that would order the torture. US military members are not subject to the International Criminal Court.

The Trump administration could redefine noncombatant to include families of terrorists. The 2016 National Defense Authorization Act limits interrogations to practices found in the Army Field Manual. But, the administration could allow for “extraordinary rendition,” as the Bush administration did. That is, the Trump administration could out-source torture. But, some of these directive to interrogate with extreme methods could be directed toward the ordinary soldier. Those sorts of orders are rarely written. The average soldier might have the opportunity to consult with a JAG lawyer. One could expect the military chain-of-command to support whatever legal cover the White House offers. During the Bush Administration, the White House Legal Counsel wrote a memo authorizing torture. Most JAG lawyers would surely defer to legal opinions from some other entity. So, even if a practice were considered illegal right up to the day of some memo, it would then magically be considered lawful afterward.

I have to add as an aside, however, that many JAG lawyers were troubled by that White House memo. Many JAG lawyers would explain the difficulties involved in changing the definition of “torture” and provide pretty good counsel regarding any possible unlawful order.

One Navy nurse at Guantanamo Bay refused to force feed a detainee. Legal proceedings dragged on against him for two years before the medical community supported him. Then, the Navy dropped its investigation. Force feeding is not torture, but the incident indicates the sort of actions that one can expect for refusing an order sen as unlawful. As I have mentioned on this website before, military members are required to refuse unlawful orders. The question is is such an order unlawful if there is some sort of legal cover? The Task & Purpose post does not address how a soldier might ascertain whether a given order is unlawful or not. Instead, it recommends that members of the military understand the rule of engagement, any protocols regarding detainees, and pay attention to those Law of Armed Conflicts briefings we receive each year. This is serious business. No one wants to risk his/her career over an unlawful order. See Task & Purpose post here.

When I was a young Company Commander, we had this lieutenant who was even younger than I was. He had been to Airborne school. He had his jump wings and he thought he was special. He disparaged Battalion staff the few times he dealt with them. He talked big about what he would do as Platoon Leader. We were training up for a rotation to the National Training Center. That was a big deal for any Infantry unit, but especially for a National Guard Infantry unit. We would be the second Guard unit ever to rotate through the NTC. During our train-up, we had active duty soldiers watching us and training us. The pressure to succeed was strong. One weekend, the training consisted of lane training by platoon. The three platoons in  my company would take their turn going through a lane set up in the Louisiana woods attacking and seizing an objective. There would be smoke, grenade simulators, etc. It would look and sound very real.

As the platoon advanced, the brash, young lieutenant froze. He just flat froze. Like all of us at one time or another, he was suddenly seized with paralyzing fear as he realized he was in total control. Unlike when we practiced drills, the NCO’s were not running things. He was. And, he was too scared to speak and direct his some 30 soldiers. I had to step in just to keep the platoon advancing. The young lieutenant never did recover. He left our unit soon after.

I thought of that young officer when I read that Donald Trump visited with Pres. Obama yesterday and he said little. Gone was the braggadocio. Gone were the loud promises of victory and success. It is not easy being in charge. It is not easy being handed the keys to a 30 man Infantry platoon with smoke and explosions all around you. Assuming the keys to the White House are not any easier.

In the Band of Brothers book, 1Lt. Dyke was given the keys to an Infantry company. Like my young lieutenant, 1Lt. Dyke froze in the midst of his first attack. The movie portrayed him as confused and spouting incoherent instructions. But, in reality, he just froze in the midst of a complicated attack. While he sat there, his men were getting shot badly. The enormity of controlling people’s lives, even if just in training is just too much when you are not prepared. My young liuetant was too young. He was still in college. He was an early commissioned officer under a program unique to the Guard. He had not even been to the Officer Basic course, yet. Too much was expected of him. 1Lt. Dyke was a commissioned officer and was older. But, he had previously served on Regimental staff, which is much further back from the front. He was in charge of just a handful of men. When he came to Easy Company, he often disappeared. In combat a soldier can just walk off in the woods and hide. Usually, your superiors will find you and bring you back, or replace you. But, when you are the superior, you can get away with disappearing.

He did not bond with his men. He never chatted with them. He had no stake in their successes or failure. So, in the midst of an attack, he suddenly found himself in charge of 150 strangers and did not have the desire to deal with it. He just froze. He was not ready. He was not invested in his men. My young lieutenant never got to know his own soldiers, either. To him, they were just pawns on a chess board.

Donald Trump will get the hang of his new job. He is invested in some of us, perhaps not all of us. But, it will take time. He needs training and education. 1Lt. Dyke served honorably through the rest of the war in staff roles. He was apparently deemed not suited for a front line unit, again. My young lieutenant, I never heard from him. But, I am sure with time and military education, he did much better later. As for Pres. Elect Trump, I am sure he will get the hang of this new car, soon.

It is ironic that Donald Trump suggests that veterans suffering from PTSD are weak. He obtained several deferments from the draft during the Viet Nam War. He said “strong” soldiers do not suffer from PTSD. See ABC news report. The implication is that weak soldiers do suffer from PTSD.

That is nonsense. It is also simplistic. I do not mind admitting that I suffer from mild PTSD. Loud, unexpected noises will make me jump, or simply unnerve me a bit. I cannot stay around loud, unexpected loud noises. PTSD comes in degrees. It is not black and white. I know many veterans suffer from far worse cases of PTSD than I do. They are not weak and neither am I. We did our part, without hesitation or reservation.

One of the highlights of my Army career was seeing so many young men and women voluntarily enlisting in the armed forces during the two wars. I was a commander of a basic training unit for a time. The Drill Instructors appreciated the steadfast courage of those young men and women enough that hazing or harassing at boot camp was at an all-time low.

I feel sorry for persons like Mr. Trump who have never experienced the selfless sense of duty that compels us to stand up for our country and our comrades. We faced our fears. We were well-trained and well-lead. We loved our country and we profoundly trusted our fellow soldiers. Mr. Trump talks with shallow understanding. He has not served one minute in a war zone. I still feel like my time in Iraq was one of the best experience of my life. One of the good guys, the word “strong” comes to mind, was Paul Clevenger. He committed suicide a year or so after we came back. He was a good, young soldier. The war affected us all in different ways. There is no weakness in facing your fears and following through on your commitment. So many soldiers exceeded their comfort zone. There was a young, Junior League, female JAG lawyer who went on a convoy for the first time at my request. Just a few weeks from the end of her tour, she hopped in her HMMWV with a smile, as far as I knew. She never let on that it was her first convoy. She never let her fear show.

There was the very young soldier who would never go out on a convoy. He was scared. But, you know, he was always there at work, everyday, on time. He stayed late working many times – to avoid forcing soldiers from distant FOB’s to make an unnecessary return trip. There was the young captain who went home on his six month break and did not come back. No one blamed him or accused him of anything. We all knew he had done his best, he had pushed his limit. All these soldiers were brave in their own individual way. War is too complicated for simplistic criticisms.

The Battle of Ia Drang Valley illustrates the complexity of war. The first battle is well known from the film, “We Were Soldiers,” starring Mel Gibson. But, the book We were Soldiers Once and Young includes the follow-up battle. A sister battalion, the 2nd Btn of the 7th Cavalry Regt. left the scene of LTC Hal Moore’s battle to move toward a faraway Landing Zone (LZ). The 2/7th was commanded by LTC Robert McDade.

Unlike LTC Moore, LTC McDade was new to his battalion. A Battalion included some 700 soldiers. He barely knew his soldiers. The 2/7th was ambushed just a day or two out of their starting point. The battalion fell apart, in part because LTC McDade withdrew from his men and the battle. He made little or no attempt to coordinate there actions of his soldiers. The fight devolved into dozens of different, smaller battles. The men of the 2/7th were fighting with no coordination from higher headquarters.

LTC McDade was not a weak person. Far from it. He was a combat veteran of WW II and the Korean War. But, the thing about combat is that it is such a stressor that generals and historians alike cannot predict when and how certain persons succeed, while others do not. I think it likely that not being bonded with his men was a factor. Hal Moore was famously close to his men. LTC McDade was new.

War and PTSD involve people. When you discuss people, by definition you discuss varieties and differences. Even in war, most importantly in war, we cannot pigeonhole the human condition. LTC McDade was not weak. My friend, SGT Paul Clevenger was not weak. The true weak one is the one who dares to discuss things he cannot comprehend.

Listening to the debate between Clinton and Trump, I realized that some folks have already forgotten what really happened during the Iraq War. It ended just a few years ago, yet, there are some serious mis-understandings about it. For one thing, Donald Trump blames the Obama administration for leaving Iraq in a vacuum. Yes, when we left, there was a power vacuum. ISIS or ISIL has moved into that power vacuum. But, we had little choice. The date for our departure was set by treaty. That agreement was negotiated and signed by the Bush administration. The problem at the time was that Iraq as a whole was dearly afraid we would never leave. Many Iraqis, Sunni and Shia, were convinced we came for the oil. Even in my small corner of the war in Tikrit, we would hear stories about how paranoid the Iraqis could be about U.S. intentions.

One full colonel engineer was meeting with the Saladin Province chief engineer. They were discussing how to make the Tikrit airport operational once again. It had been destroyed during the war. It was a civilian airport. The challenge was finding some source of money to finance a rehabilitation of the damaged airport. The U.S. Army colonel suggested a partnership between military and civilian authorities. The Germans, he pointed out, had done that for some 50 years at a base in Germany. They formed a civilian-military partnership with the U.S. and shared the airport. In Iraq, the military had some money, after all. He offered it only as an option.

“What???” exclaimed the Salahadin chief engineer. “You are going to be here for 50 years??”  Whoa, whoa, the U.S. colonel tried to calm down the chief engineer and assure him we had no plans to be anywhere for 50 years. He was just searching for solutions.

That was what we faced. And, that Province Chief Engineer was Sunni. The Sunnis needed us to balance against the oppressive Shia ruling government. The heirs of a colonial country were very apprehensive that we were just another colonial power intending to “take” oil. That is the second mis-perception suggested by Donald Trump. We cannot simply “take” the oil. That is called imperialism. It would also violate several precepts of U.S. Army Civil Affairs doctrine. When I was in Iraq, I served as a Civil Affairs officer. CA folks are the men and women who administer territories held by US forces. In World War II. they would run a small town until the local town could elect its own leaders. In Iraq, unlike WWW II, we were very involved in the war. Essentially everything involved Civil Affairs. “Doctrine” is what we describe as our training manuals. Every Civil Affairs training manual specified clearly that our job was to manage things only until the locals could take over. That would, of course, mean that we let them keep their industries. If we “take” their oil, they would be dependent on us for generations. It would have violated every tenet of Civl Affairs doctrine. It would also have lead to many more of us being killed.

As one former general told one of my Civil Affairs colleagues, “I like you people in the U.S. Army. You come here and build schools and clinics. But, if you stay too long, I will kill you.” We were in a war. We did what we had to do to succeed while still keeping as many of us alive as possible. The former general said clearly that by building things and contributing money, we showed we were not imperialists. But, he warned, if that changed, he would join the insurgency. A ragtag group of amateurs is one thing. A former general is something else entirely. Our goal was to keep men like the general on the sidelines and perhaps, even occasionally, on our side.

So, yes, when it came time to negotiate some U.S. soldiers remaining in Iraq, the Iraq government pressed us to leave. And, yes, Pres. Obama did not press them to relent. But, really, it is hard to remain in a place where every Iraqi, Sunni and Shia, would prefer we leave. They liked us, but only if we did not stay too long.

It is an ancient principle of trials that jurors can only consider what evidence they hear or see in court. That is why every trial these days includes a warning against looking things up on the internet. And, that is why most judges and lawyers know they cannot comment on actual cases prior to the jury verdict.

But, what about a committed criminal defense lawyer whose faith is a large part of his practice? Can such a lawyer post on Facebook that his clients are the discarded, overlooked persons Jesus ministered to? Can he post on Facebook that he sees God as directing him in his fight for justice? One judge in Ellis County, near Dallas, has said no, Mark Griffith cannot make such posts, since jurors might see those posts. See San Antonio Express News report.

Mr. Griffith explains that these are the sort of prayers he often makes before and during a trial. To inhibit him will restrain his First Amendment rights of free speech. He did eventually agree to refrain from posting real-time posts on Facebook. One would hope so. A juror should not be able to access our private thoughts or expressions of good will. That could lead to a crazy race by both sides to express their “pure” inner thoughts.