The Evolution of Legal Counsel for Operational Commanders: Revisiting Greek Classics and Military History
The MOC
By
LTJG Logan Tobias
December 3, 2024
Then-Commander James Stockdale, after ejecting from his airplane over the jungle canopy of North Vietnam, whispered to himself, “I’m leaving the world of technology and entering the world of Epictetus.” He was later captured and subjected to eight years as a prisoner of war (POW). His reference to the ancient philosopher was grounded in his belief that the classic texts of Western civilization hold timeless wisdom applicable in all situations. A leader well-versed in such works, he argued, can navigate crises with clarity, avoiding the self-indulgent error of imagining one’s circumstances to be uniquely unprecedented. The relationship between legal counselors and operational commanders is a critical one and—according to Stockdale’s wisdom—can be explored in both historical and classical contexts. Through this lens, it is apparent that this relationship, though not entirely unique, has evolved to require a level of premeditation, flexibility, communication, and sacrifice unseen in the ancient world.
In modern militaries, legal advisers are trusted agents attached to operational commands to caution against unlawful actions and provide viable alternatives. Legal counsel is considered so crucial to military operations that the Geneva Convention dictates commanders shallensure the availability of legal advice during armed conflict. Though the necessary presence of legal advisors was codified in the Geneva Convention, the involvement of such counselors in war pervades military history. In the 1400s, commanders on both sides of the Hundred Years War consulted lawyers on the treatment of captured combatants, developing our modern understanding of POWs. In 1863, President Lincoln consulted with jurist Francis Lieber to promulgate legal guidelines on warfare to Union commanders. In 1982, British military leaders and legal advisers worked together to establish the exclusion zone within which Argentine ships could be freely attacked during the Falklands War. In 1991, General Schwarzkopf received counsel prior to attacking Iraqi forces retreating along the “Highway of Death”. By factoring legal recommendations into the planning and execution phases of these operations, military leaders seek to legitimize their actions by ensuring adherence with a higher authority, namely conventions of international law.
The practice of military leaders consulting non-military experts for advice is as old as antiquity, far predating the modern system of international law. Historically commanders have been particularly interested in when, where, if, and how to conduct military operations in accordance with their culture’s norms, values, and rules. In The Iliad, the Greek army is engaged in a protracted siege of Troy. In Book VI, Hector leads the Trojans to a rare victory, forcing the Greeks to retreat. As they approach their primary goal—setting fire to the Greek ships—the Trojans observe an omen: an eagle carrying a live serpent. Polydamas, Hector’s advisor, interprets this as a sign to retreat and urges Hector to pull back. In Virgil’s Aeneid, the Trojans are faced with the deceptive Greek gift: a massive wooden horse. King Priam turns to Laocoon, a Trojan priest, who advises against bringing the horse into the city, believing it to be a trick.
In the ancient world, military leaders consulted with priestly advisors in the planning and execution stages of operations, whereas in modern militaries, the advisors are legal professionals. Regardless, leaders have always sought to legitimate their actions through reference to a higher body of authority. The distinction between those authorities, however, the former being religious, the latter being legal constructs, is crucial.
In the Greco-Roman classics, advisers are not simply cautioning against unfavorable actions, they are interpreting the omnipotent will of the gods. For instance, when Polydamas fervently urges Hector to pull back, he does so because he rightly perceives certain ruin by way of Zeus. When Hector dismisses the advice, claiming that a true warrior relies only on his country’s cause, he indirectly secures Troy’s destruction. His decision spurs the Greeks—particularly Achilles—to return to the fight. Moreover, when Laocoon, staring down the Trojan Horse and inspired by divine knowledge, proclaims, “Either the lumber is hiding Achaeans [Greeks] inside, or it has been built as an engine of war,” King Priam’s decision to reject his counsel similarly seals his defeat. In both cases, the divine will was clear to the advisers, and their recommendations were as harsh, uncompromising, and final as the projected fate of their forces.
Unlike the rigid biases of the Greco-Roman gods that clearly drew lines between favorable and disastrous actions, the man-made system is less clear. The international legal system, defined by hard values yet continually influenced by evolving cultural norms, rules, politics, and operational developments, contains more nuance and leaves even more to interpretation. For example, although British lawyers advised military leaders that Argentine ships should not be sunk outside the exclusion zone, Britian’s victory was secured when a U.K. submarine sunk the Argentine cruiser ARA General Belgrano while fleeing the combat area well outside of the exclusion zone. The legal advice surrounding General Schwarzkopf’s attacks on retreating Iraqi convoys prompted concerns regarding proportionality and distinction, yet by proceeding with the offensive in the face of cautionary counsel, he secured one of the most resounding victories in U.S. military history. The Union’s victory in the Civil War, guided by the Lieber Code, was won by Tecumseh Sherman’s March From the Sea, a total war campaign that overtly disregarded legal counsel. In these examples, lawyers did not issue ultimatums, but rather communicated a range of options and expected legal consequences. As a result, commanders understood the associated risks and correctly determined that operational imperatives outweighed legal costs.
It would be incorrect to conclude from these examples that today’s advisers are markedly worse, or operational commanders better, than they were in ages past. Rather, it is apparent that the nature of combat and the higher authorities themselves have changed, forcing advisers to change as well.
In today’s conflicts, leaders and lawyers alike enjoy the relative luxury of understanding the prevailing higher authority (international law) well in advance of military operations. Legal premeditation allows for a more thorough assessment of all available options and better decision-making in high-pressure situations. Additionally, international law resides in the “gray zone” whereas the will of the gods was absolute, meaning modern advisors are charged with detailing multiple courses of action and associated consequences, while ancient advisors delivered one uncompromising recommendation based on a dynamic divine standard. The culmination of these factors forced advisers like Polydamas to rigidly modify strategic objectives real time to safeguard the legitimacy of operations. On the other hand, Schwarzkopf, Sherman, and the British Ministry of Defense, thanks to their effective counsel, had time to consider legal and operational implications and make well-informed decisions after considering a range of viable options. As such, preemptive and flexible legal counsel is a major tool for operational commanders, but leaders and lawyers only retain this comparative advantage over the ancient world if they use this opportunity to seek early advice.
Another key distinction between ancient and modern conflicts is the tactical positioning of advisors. In the ancient world, owing to lackluster communication and transportation technology, advisers had to be on the battlefield to be readily accessible. Polydamas and Laocoon stood alongside infantrymen when they made their final recommendations, a closeness likely valued by leaders because it ensured their advisors understood the tactical situation. This antiquated thinking persists in modern militaries, where a common criticism of legal advisors is that they are not “on the deck plates”, and therefore cannot possibly understand the situation. To the contrary, their detachment provides them the ability to be more objective, thoughtful, and effective. Frank Lieber may not have so valued honor on the battlefield if he was staring down a confederate bayonet, and admittedly, the Union may never have won if Sherman followed the Liber Code to the letter, but the country and world were certainly better served by the promulgation of those rules. If modern militaries are to safeguard the accuracy and relevance of their advisors, thereby offering commanders the most pertinent information, they must maintain this healthy separation. This places further responsibility on commanders to engage lawyers early and often such that they develop and preserve a shared mental model.
Lastly, legal advisers today must grapple with a problem their forebearers did not: making a recommendation, being rejected, and continuing to move forward. To the ancient mind, rejecting an advisers counsel meant defying the gods and certain defeat. Laocoon died and Polydamas watched Troy burn soon after their advice was rejected. In both cases, that was their last counsel. In the modern world, lawyers are not forecasting victory or defeat. They are issuing cautions and providing recommendations, the likes of which operational commanders factor into their final decision. Occasionally, as demonstrated, rejected counsel leads to operational success, in which case lawyers must sacrifice their ego, accept the commanders’ wise decision, and continue to provide advice. In this critical moment, the aftermath of rejection and operational success, lawyers and commanders alike must remove themselves from their recommendations and actions and align only with the legal, moral, and operational success of the command, a transcendent feat truly becoming of the heroes of the ancient world.
LTJG Logan Tobiasgraduated from the United States Coast Guard Academy in 2022. He is currently the Commanding Officer of CGC Razorbill (WPB 87332) homeported in New London, Connecticut.
The views expressed in this piece are the sole opinions of the author and do not necessarily reflect those of the Center for Maritime Strategy or other institutions listed.
Center for Maritime Strategy
By LTJG Logan Tobias
Then-Commander James Stockdale, after ejecting from his airplane over the jungle canopy of North Vietnam, whispered to himself, “I’m leaving the world of technology and entering the world of Epictetus.” He was later captured and subjected to eight years as a prisoner of war (POW). His reference to the ancient philosopher was grounded in his belief that the classic texts of Western civilization hold timeless wisdom applicable in all situations. A leader well-versed in such works, he argued, can navigate crises with clarity, avoiding the self-indulgent error of imagining one’s circumstances to be uniquely unprecedented. The relationship between legal counselors and operational commanders is a critical one and—according to Stockdale’s wisdom—can be explored in both historical and classical contexts. Through this lens, it is apparent that this relationship, though not entirely unique, has evolved to require a level of premeditation, flexibility, communication, and sacrifice unseen in the ancient world.
In modern militaries, legal advisers are trusted agents attached to operational commands to caution against unlawful actions and provide viable alternatives. Legal counsel is considered so crucial to military operations that the Geneva Convention dictates commanders shall ensure the availability of legal advice during armed conflict. Though the necessary presence of legal advisors was codified in the Geneva Convention, the involvement of such counselors in war pervades military history. In the 1400s, commanders on both sides of the Hundred Years War consulted lawyers on the treatment of captured combatants, developing our modern understanding of POWs. In 1863, President Lincoln consulted with jurist Francis Lieber to promulgate legal guidelines on warfare to Union commanders. In 1982, British military leaders and legal advisers worked together to establish the exclusion zone within which Argentine ships could be freely attacked during the Falklands War. In 1991, General Schwarzkopf received counsel prior to attacking Iraqi forces retreating along the “Highway of Death”. By factoring legal recommendations into the planning and execution phases of these operations, military leaders seek to legitimize their actions by ensuring adherence with a higher authority, namely conventions of international law.
The practice of military leaders consulting non-military experts for advice is as old as antiquity, far predating the modern system of international law. Historically commanders have been particularly interested in when, where, if, and how to conduct military operations in accordance with their culture’s norms, values, and rules. In The Iliad, the Greek army is engaged in a protracted siege of Troy. In Book VI, Hector leads the Trojans to a rare victory, forcing the Greeks to retreat. As they approach their primary goal—setting fire to the Greek ships—the Trojans observe an omen: an eagle carrying a live serpent. Polydamas, Hector’s advisor, interprets this as a sign to retreat and urges Hector to pull back. In Virgil’s Aeneid, the Trojans are faced with the deceptive Greek gift: a massive wooden horse. King Priam turns to Laocoon, a Trojan priest, who advises against bringing the horse into the city, believing it to be a trick.
In the ancient world, military leaders consulted with priestly advisors in the planning and execution stages of operations, whereas in modern militaries, the advisors are legal professionals. Regardless, leaders have always sought to legitimate their actions through reference to a higher body of authority. The distinction between those authorities, however, the former being religious, the latter being legal constructs, is crucial.
In the Greco-Roman classics, advisers are not simply cautioning against unfavorable actions, they are interpreting the omnipotent will of the gods. For instance, when Polydamas fervently urges Hector to pull back, he does so because he rightly perceives certain ruin by way of Zeus. When Hector dismisses the advice, claiming that a true warrior relies only on his country’s cause, he indirectly secures Troy’s destruction. His decision spurs the Greeks—particularly Achilles—to return to the fight. Moreover, when Laocoon, staring down the Trojan Horse and inspired by divine knowledge, proclaims, “Either the lumber is hiding Achaeans [Greeks] inside, or it has been built as an engine of war,” King Priam’s decision to reject his counsel similarly seals his defeat. In both cases, the divine will was clear to the advisers, and their recommendations were as harsh, uncompromising, and final as the projected fate of their forces.
Unlike the rigid biases of the Greco-Roman gods that clearly drew lines between favorable and disastrous actions, the man-made system is less clear. The international legal system, defined by hard values yet continually influenced by evolving cultural norms, rules, politics, and operational developments, contains more nuance and leaves even more to interpretation. For example, although British lawyers advised military leaders that Argentine ships should not be sunk outside the exclusion zone, Britian’s victory was secured when a U.K. submarine sunk the Argentine cruiser ARA General Belgrano while fleeing the combat area well outside of the exclusion zone. The legal advice surrounding General Schwarzkopf’s attacks on retreating Iraqi convoys prompted concerns regarding proportionality and distinction, yet by proceeding with the offensive in the face of cautionary counsel, he secured one of the most resounding victories in U.S. military history. The Union’s victory in the Civil War, guided by the Lieber Code, was won by Tecumseh Sherman’s March From the Sea, a total war campaign that overtly disregarded legal counsel. In these examples, lawyers did not issue ultimatums, but rather communicated a range of options and expected legal consequences. As a result, commanders understood the associated risks and correctly determined that operational imperatives outweighed legal costs.
It would be incorrect to conclude from these examples that today’s advisers are markedly worse, or operational commanders better, than they were in ages past. Rather, it is apparent that the nature of combat and the higher authorities themselves have changed, forcing advisers to change as well.
In today’s conflicts, leaders and lawyers alike enjoy the relative luxury of understanding the prevailing higher authority (international law) well in advance of military operations. Legal premeditation allows for a more thorough assessment of all available options and better decision-making in high-pressure situations. Additionally, international law resides in the “gray zone” whereas the will of the gods was absolute, meaning modern advisors are charged with detailing multiple courses of action and associated consequences, while ancient advisors delivered one uncompromising recommendation based on a dynamic divine standard. The culmination of these factors forced advisers like Polydamas to rigidly modify strategic objectives real time to safeguard the legitimacy of operations. On the other hand, Schwarzkopf, Sherman, and the British Ministry of Defense, thanks to their effective counsel, had time to consider legal and operational implications and make well-informed decisions after considering a range of viable options. As such, preemptive and flexible legal counsel is a major tool for operational commanders, but leaders and lawyers only retain this comparative advantage over the ancient world if they use this opportunity to seek early advice.
Another key distinction between ancient and modern conflicts is the tactical positioning of advisors. In the ancient world, owing to lackluster communication and transportation technology, advisers had to be on the battlefield to be readily accessible. Polydamas and Laocoon stood alongside infantrymen when they made their final recommendations, a closeness likely valued by leaders because it ensured their advisors understood the tactical situation. This antiquated thinking persists in modern militaries, where a common criticism of legal advisors is that they are not “on the deck plates”, and therefore cannot possibly understand the situation. To the contrary, their detachment provides them the ability to be more objective, thoughtful, and effective. Frank Lieber may not have so valued honor on the battlefield if he was staring down a confederate bayonet, and admittedly, the Union may never have won if Sherman followed the Liber Code to the letter, but the country and world were certainly better served by the promulgation of those rules. If modern militaries are to safeguard the accuracy and relevance of their advisors, thereby offering commanders the most pertinent information, they must maintain this healthy separation. This places further responsibility on commanders to engage lawyers early and often such that they develop and preserve a shared mental model.
Lastly, legal advisers today must grapple with a problem their forebearers did not: making a recommendation, being rejected, and continuing to move forward. To the ancient mind, rejecting an advisers counsel meant defying the gods and certain defeat. Laocoon died and Polydamas watched Troy burn soon after their advice was rejected. In both cases, that was their last counsel. In the modern world, lawyers are not forecasting victory or defeat. They are issuing cautions and providing recommendations, the likes of which operational commanders factor into their final decision. Occasionally, as demonstrated, rejected counsel leads to operational success, in which case lawyers must sacrifice their ego, accept the commanders’ wise decision, and continue to provide advice. In this critical moment, the aftermath of rejection and operational success, lawyers and commanders alike must remove themselves from their recommendations and actions and align only with the legal, moral, and operational success of the command, a transcendent feat truly becoming of the heroes of the ancient world.
LTJG Logan Tobias graduated from the United States Coast Guard Academy in 2022. He is currently the Commanding Officer of CGC Razorbill (WPB 87332) homeported in New London, Connecticut.
The views expressed in this piece are the sole opinions of the author and do not necessarily reflect those of the Center for Maritime Strategy or other institutions listed.