What ethical issues confront law yers for warriors? Military lawyers face special concerns just because their clients are soldiers, sailors, or other military personnel responsible for preparing for, waging, and win ning the country's wars lawfully and morally. As military operations have become more complex, military law yers' responsibilities have expanded. In fact, those responsibilities have expanded so much that, as I shall argue here, military lawyers are now not only legal counsel to warriors but also their de facto moral advisors.

Justice and Discipline
The most distinctive pattern of ethi cal issues for military lawyers comes from military justiceadvising the com- mander on maintaining good order and discipline through the mili tary's criminal law. An undisciplined force is incapable of fighting effectively and could even threaten the society it is meant to defend. For this reason, the Uniform Code of Military Justice (UCMJ) gives the military its own criminal law and the institutions to apply it. The UCMJ provides that when charges are preferred, military officials will determine "what disposi tion should be made thereof in the interest of justice and discipline."

This requirement to balance justice and discipline can raise ethical issues for the commanders and lawyers re sponsible for the administration of the military justice system. There is little doubt that discipline requires the mili tary to criminalize conduct that civilian society does not (disrespect, disobedi ence, and absence, for example), and there is little doubt that discipline requires the military to punish some offenses more severely than civilian society does (drug offenses, for exam ple). Despite the military's greater need for discipline, in most cases justice and discipline coincide, for commanders understand that they can preserve discipline only by dispensing justice fairly.

But there are cases in which con flicts between justice and discipline can raise ethical issues. What are the ethical responsibilities of a lawyer advising a commander for whom the deterrent effect of a conviction and sentence carries more weight than fairness to the accused? Is the military defense counsel's duty of confidential ity substantially different from that of civilian counsel when the client dis closes the intent to commit an act threatening military or weapons systems?

Other areas of military law have analogues to the vying demands of discipline and justice in military justice. In contract law, for example, lawyers may face a tension between rigorous adherence to details of complex regulations and procuring urgently needed military supplies. When does urgency or risk in a particular military contingency permit lawyers to advise contracting officers that “substantial compliance” with the strict requirements of regulations having the force of law is sufficient?

In environmental law, to give another example, these competing demands may involve another government agency. How zealously can military lawyers defend their service when an environment agency investigates a jet fuel spill? Should military lawyers be at least as aggressive as a civilian corporation’s lawyers would be in a similar situation—or even more aggressive in view of the necessity of carrying out the military function effectively and promptly? Or should military lawyers, as representatives of the public, be models of cooperation in dealing with the investigation?

Public and Personal
While the "discipline-justice" pat tern fits many of the ethical problems facing military lawyers, two other pat- terns—"public-personal" and "law- morality"—may be even more apt today. The public-personal pattern can be seen in the role military lawyers play under the Joint Ethics Regulation (JER).

Reflecting increased public interest in regulating government ethics, the JER's several hundred pages include detailed rules on gifts from sources outside the government, gifts between military personnel, conflicting financial interests, impartiality in perform ing official duties, misuse of position, off-duty employment and other out side activities, and post-service em ployment. For example, military per sonnel may not accept any gift given because of the member's official posi tion, but the rules are so detailed as to provide that "gift" does not include "modest items of food and refresh ments, such as soft drinks, coffee and donuts, offered other than as part of a meal."

The JER implements or supplements a confusing patchwork of statutes and regulations. The rules are so detailed and complex that the JER requires that in almost every case "ethics counselors" must be lawyers. Detailed ethical rules that only lawyers are competent to interpret unavoidably create the unfortunate appearance that ethical advice is only a matter of finding loopholes. In such an environment, the form ethical issues take is not so much a tension between discipline and justice as it is a tension between technical compliance with (or avoidance of) detailed standards of conduct and public perceptions of real or apparent conflicts between the personal and official interests of government employees.

Law and Morality
The law-morality pattern of ethical issues is seen best in the expanding role of military lawyers in planning and waging military operations. International law requires nations to ensure respect for the law of war, and so military lawyers have for decades been responsible for instructing military personnel in the law of war and for inculcating in them respect for law. Military lawyers are also responsible for reviewing proposed weapons systems. More importantly, Department of Defense directives now require military lawyers to review war plans for compliance with domestic law and the law of war. Is it possible to imagine lawyers who carry greater ethical responsibilities than those who review war plans (including plans for nuclear war)?

In the Gulf War—frequently called the most legalistic war ever—lawyers reviewed every target to be struck in the air campaign. Their advice addressed such difficult issues as striking electric power grids as strategic targets and attacking mobile Scud-launchers on highways even though they could not be distinguished from civilian vehicles at night.

The changing nature of warfare, together with the expanded role of military lawyers in war planning, raises unprecedented issues for military lawyers. There is, for example, the issue of who the lawyer's client is. All government lawyers face this issue at some point. Rules of professional responsibility may formally identify the client, but in practice who really is the client—the head of the agency or one of its subdivisions, the agency itself, the government, the public?

The ethical difficulties inherent in defining a governmental client are compounded in joint or coalition warfare, in which military lawyers may advise commanders from other services and from other nations. The most interesting challenges concern "conflicts of law"—determining the applicable law when there are many different sources of law and many circumstances not specifically addressed by any of them. Military lawyers must take into account and resolve conflicts among national law, customary international law, international conventions, and agreements among coalition partners.

While the law of war generally concerns war among nations, most military operations today do not occur in that context. They take place instead in civil wars or in "military operations other than war" such as humanitarian interventions and peacekeeping operations. The parties to the conflicts are often not nations, but sub- and supra-national groups. Under these conditions, how do military lawyers find the law? They must look to the principles underlying the law of war—proportionality between military objectives and the force used to achieve the objectives, and discrimination between combatants and noncombatants in the application of military force.

Moral Advisor
For this reason, military lawyers have become de facto moral advisors for warriors. There is no one else in the war room specifically responsible for identifying and addressing moral issues. Perhaps one day there will be ethics consultants” on the military com- mander's staff just as there are already in business, medicine, and elsewhere. In the meantime, however, military lawyers should shoulder this responsibility. Lawyers and others might argue that everyone involved in planning and waging war is competent to see the moral issues; the lawyer's role is to provide legal advice, not moral guidance. But as weaponry, international relations, and military operations become more complex, so do the moral issues. It is not at all clear that just anyone in the war room can be expected to see the difficulties, subtleties, and ambiguities in using military force morally.

Although the lawyer's principal role is to provide legal advice, in war legal and moral advice are—or should be—close. The overlap of law and morality is greater in the law of war than in any other area of the law—in large part because both are based on the principles of proportionality and discrimination. Using these principles to apply law to new forms of war, military lawyers must already appeal to moral principles. In this way, now more than ever before, the special ethical concerns of military lawyers include the most sobering and momentous of moral responsibilities—ensuring that the nation wages war both lawfully and morally.

The views presented here are mine; they do not necessarily represent the views of the USAF Academy or any other component of the Department of Defense or the United States government.