After Gallagher Case, Review Calls for Big Changes to Navy and Marine Corps Legal System

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Navy Special Operations Chief Edward Gallagher, center, walks with his wife, Andrea Gallagher, left, and adviser Bernard Kerik as they leave a military court at Naval Base San Diego on July 2, 2019. (AP Photo/Gregory Bull)
Navy Special Operations Chief Edward Gallagher, center, walks with his wife, Andrea Gallagher, left, and adviser Bernard Kerik as they leave a military court at Naval Base San Diego on July 2, 2019. (AP Photo/Gregory Bull)

A monthslong review of the Navy and Marine Corps legal communities has identified serious training gaps, cultural problems and other areas in need of reform.

A 13-person panel -- which included military brass and outside legal experts -- released a 274-page report on Friday detailing ways the sea services can improve their legal communities.

The recommendations on training, career paths, incentive programs and cultural reforms could lead to big changes to the Navy's Judge Advocate General Corps and Marine Corps' staff judge advocate community.

"The men and women of both the Navy and the Marine Corps legal communities are high caliber, talented and impressive individuals," Vice Chief of Naval Operations Adm. Bob Burke told reporters in his Pentagon office. "... That said, as a team, we've got some things that we can work on to get better."

Perhaps most alarming among the panel's findings was that the JAG officer culture isn't focused on introspection or accountability for its professional performance. Also troubling was a trend of Navy and Marine Corps commanders overstepping their bounds in legal cases, pointing to the need for better training on unlawful command influence.

The review was prompted by a series of headline-grabbing legal gaffes during embattled Navy SEAL Eddie Gallagher's recent high-profile trial.

Related: Military Prosecutors Accused of Sending Spying Software to SEAL's Defense Team, Reporter

While the panel didn't review the findings of Gallagher's case directly, they consider it -- alongside other prominent cases -- to highlight "larger systematic issues," Burke said.

Other cases of study included the criminal case -- later dropped -- against the former commanding officer of the guided-missile destroyer Fitzgerald after its deadly collision in 2017, and the Fat Leonard corruption scandal that ensnarled multiple senior Navy leaders.

In Gallagher's case, a senior trial counsel was kicked off the case for prosecutorial misconduct after sending emails with tracking devices to a reporter and the former Navy SEAL's legal team. President Donald Trump also rescinded medals awarded to members of the prosecution who'd failed to secure a conviction.

In the case of the Fitzgerald CO, his defense attorneys called for the case to be thrown out over public comments the Navy's top leaders at the time made blaming their client for the fatal mishap.

Here are five big things the Navy and Marine Corps need to fix now, according to the review.

1. The JAG Corps' Culture Problem

The panel did not mince words when it came to cultural woes facing the Navy's JAG officers.

The JAG, the panel found, lacks a culture of "continuous, critical self-assessment focused on professional performance and accountability."

"This is an urgent concern given the seriousness of the issues leading to this review," it added.

Further, the panel found JAG officers aren't always in tune with Navy culture and values.

"Navy judge advocates are members of two honorable professions: the profession of arms and the profession of law," the report states. "... A judge advocate's role as both a Naval officer and attorney, is required and must be continually reinforced throughout the community."

2. A Pattern of UCI

Several recent high-profile Navy and Marine Corps courts-martial have led to findings of actual and apparent unlawful command influence involving senior commanders and legal officers.

That points to better training needed for commanders and those advising them, the panel found.

"We need to make sure that they're educated in how they can ensure good order and discipline in their units without prejudicing future potential military justice matters," said Maj. Gen. Gregg Olson, assistant deputy commandant for Marine Corps Plans, Policies and Operations.

UCI, the report adds, undermines the fairness and credibility of the military's justice system. It's an issue about which commanders need to be hyper aware, Burke said.

"Ultimately, this is an awareness issue," he said. "It's something that we're going to have to train [on] very hard for both commanders and the judge advocates -- you've got to come at it from two different angles."

3. Better Training

Aside from better training being needed to prevent UCI, Burke and Olson said the Navy and Marine Corps need to take steps to better train their legal experts in their craft throughout their careers.

In the Marine Corps, staff judge advocates are often pulled into non-legal command positions. When they go back to their role as an SJA, he said it's likely they need refresher training.

"We do a very good job in some of our communities at refreshing people as they return to their duties," he said, pointing to the training aviators receive after a tour outside the cockpit. "We recognize this [has] some potential parallels for our lawyers."

Burke said members of the JAG Corps also need training to help prepare them to take on more leadership responsibilities as they climb the ranks. A surface warfare or submarine officer would lead small teams to start, then build up to leading teams of teams when serving as an executive or commanding officer, the vice CNO said.

Members of the JAG Corps rarely get that type of experience. Burke said the report recommends the Navy better define that kind of path for them.

"I think that'll help a lot in terms of sequencing with the training and education that the JAGs get before they get that next job so that they're properly prepared and aren't getting surprised when they get into [it]," he said.

4. More Incentives Needed

Burke called some of the current incentives being offered to those serving in the Navy Department's legal roles outdated and underfunded.

Both services need to better retain officers with legal expertise. Olson said Marines tend to leave the staff judge advocate community when they're captains, at the O-3 rank. The Navy, Burke said, tends to lose its more experienced members of the JAG Corps around the O-6 level.

Most lawyers come into the Navy and Marine Corps with high debt, he added, and the services need to offer better incentives to stay. Around the five-year mark, Burke said some do qualify for a bonus program now.

"But it's broken up into three payments, and they're relatively small," he added. "That's going to need to be a relatively larger sum of money."

The services are also looking at covering JAGs' and SJAs' bar fees.

"That's a personal professional responsibility that they bear that really doesn't have a parallel elsewhere," Olson said. "I don't pay for my infantry certification every year, but they do pay to remain standing with their state bar."

5. New Demands

Many in the Navy and Marine Corps legal communities aren't spending as much time in the courtrooms as they might have in years past. Burke said the average number of courts-martial has fallen from about 1,200 cases per year a decade ago to about 250 annually.

But that doesn't make the lawyers any less busy. In fact, he suggests the roughly 950 Navy JAGs have seen their workload quadruple over time.

"So they're not litigating as much, but they're doing other things like sexual assault [cases], environmental law, cyber law -- they're doing all these areas that, like I said, 10 years ago, uh, weren't there," Burke said.

There will be continued demand for judge advocates, the report states, in permanent roles or supporting contingency operations.

Burke said the high demand for their skills has led to some of the challenges in the community, and it's important to have a better feedback loop so they don't end up too overtaxed to address some the fixes the panel is recommending.

"I think ... institutionally if we do not respond to that demand signal, that's going to be the trip wire going forward as we continue to heap additional work on them," he said.

-- Gina Harkins can be reached at gina.harkins@military.com. Follow her on Twitter @ginaaharkins.

Read more: Navy's Legal Review Is Overdue, Experts Say. But Will It Be Tough Enough?

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