By Greg Varner
Lawyers practicing in a military setting face multidimensional problems, never more complicated than when lethal force is at issue.
In a relaxed and wide-ranging conversation less than a week after Veterans Day, Ret. Gen. John “Mick” Nicholson, former commander of U.S.-NATO forces in Afghanistan, spoke with Ret. Col. John “Jack” Ohlweiler, formerly of the U.S. Army Judge Advocate General’s Corps, about their two years serving together and other topics.
The talk, held during the noon hour on Wednesday in Lerner Hall, was moderated by Henry Carras, J.D. ’21, former president of the Military Law Society, one of the groups sponsoring the event. Co-sponsors included several other GW Law groups: the National Security, Cybersecurity and Foreign Relations Law Program; Veteran Law Students Association; and the National Security Law Association.
The principle he kept uppermost in his mind in Afghanistan, Mr. Nicholson said, is that “Justice must be done and justice must be seen to be done.”
As a commander, Mr. Nicholson added, he always asked himself what message his actions conveyed to troops as well as Afghan civilians. Along with legal constraints, he balanced ethical and moral considerations in order to protect and uphold the legitimacy of the mission.
“We killed a lot of people in someone else’s country. I’m speaking very bluntly here,” Mr. Nicholson said. “If we’re going to do that, then we must hold ourselves to the highest legal, ethical and moral standards. Otherwise, we not only undercut our moral authority and legitimacy but our operational freedom of action as well.”
For at least two hours every week, he said, he met with Mr. Ohlweiler to discuss legal cases in the 82nd Airborne Division, comprising 20,000 paratroopers. In such a large organization, the ordinary problems of any society present themselves and can be made more difficult because of the military context. Often, Mr. Nicholson and Mr. Ohlweiler focused on cases involving sexual assault and sexual harassment.
“The issue of sexual assault is still a problem despite years of focus on prevention,” Mr. Nicholson said, referencing recent news reports about sexual assault at Fort Hood, a U.S. Army post in Texas. “In 2012–14, we were very focused on this issue. Jack and I discussed each and every case, took each allegation very seriously. We’re now out of the army for a few years, but wonder what happened to this intense institutional focus.”
Mr. Ohlweiler concurred, saying that the military as a whole has dropped the ball on this issue. “There were other commanders around who had not given these cases the attention and the focus they needed,” he said.
Shortly after Mr. Nicholson first arrived in Afghanistan as commander, he responded to a tragic incident in Kunduz in which American pilots and gunners targeting Taliban forces bombed a hospital by mistake, killing doctors, nurses and patients.
“There was no criminal intent involved, so there were no criminal charges,” Mr. Nicholson said. “There were reprimands, but no one was going to jail.”
There is no way to absolutely prevent tragic incidents like this, the two men suggested, necessitating a careful official response.
“Bad stuff happens,” Mr. Ohlweiler said, offering a bit of wisdom to the law students in attendance. “I guarantee you, you’re going to be in the room with men and women who want to sweep things under the rug. It is the hardest thing in the world to be the only person in the room standing up and saying, ‘No.’ You’ve got to be prepared for that. Most people will listen to you. They just need someone to say it.”
To Afghan people and to members of the larger coalition, the lack of severe punishments after the hospital bombing reflected poorly on the legitimacy of the U.S. mission. To restore trust, Mr. Nicholson went to Kunduz and personally apologized to members of the community.
“Whenever a commander makes an apology, it immediately makes the lawyers nervous,” Mr. Nicholson said. “In Afghanistan, if your apology is viewed as insincere or inadequate, their culture almost compels them to fight to restore their honor, so we could be creating a city of enemies overnight.”
Because most of the survivors were women, with whom it would have been culturally inappropriate for Mr. Nicholson to meet by himself, his wife joined him.
“We brought in all the families,” Mr. Nicholson said. “They each stood up and showed pictures of the family member they had lost. They had a chance to vent at me, which I accepted and then expressed our deep sorrow, genuine regret and asked for their forgiveness. Their anger gave way to sadness and in some cases, we hugged. We did that with every family. Our apologies were accepted, their honor was restored and we were able to move forward with the community.”
Both speakers agreed that in a military setting, personal relationships are key. Responsiveness to cultural differences is vital, and much of the conduct and outcome of warfare depends on interpersonal channels.
When the discussion touched on cyberwarfare, Mr. Ohlweiler offered additional advice to students. To succeed in the military and also be marketable in the private sector, he said, they should pursue expertise in cybersecurity.
“This is the wave of the future,” he said. “Learn data protection, and the language of the computer geek, and you’ll be able to do unbelievably cool things in the intel world — and then you can go to the corporate sector and get paid unbelievable dollars.”