Military history is littered with the corpses of well-intended missions that ended in objective disaster. Operation Market Garden in the Summer of 1944 was supposed to have our boys in Berlin by Christmas. Instead the boys were getting the shit shelled out of them in Bastogne that winter. On the flip side, the Battle of the Bulge was supposed to break the allied lines for the Germans. Instead, Hitler turned himself into a human smore about 5 months later. Not sure if Eva Braun was the chocolate or the marshmallow, but who the hell cares. Mission and execution are two radically different concepts with radically different measurable outcomes. Occasionally they align, but often they do not. Let us now introduce you to the Army’s Trial Defense Services.
The Mission Of The Army’s Trial Defense Services
The TDS operates under a mandate: “Provide specified defense counsel services for Army personnel, whenever required by law or regulation and authorized by The Judge Advocate General (TJAG).” That is an amazing mission and namesake and founder, Tim Bilecki, lived that mission for years as Senior Defense Counsel for the U.S. Army.
The execution of that mission is an altogether different story. Bilecki would tell you first hand that there are some amazing legal minds and highly ethical JAG defenders in the Army. Every attorney has to get his or her start somewhere and for some, that’s the United States Military. The problem in execution is that the United States Military is just a different legal animal, unlike anything in the legal biome.
You might get a free JAG defense attorney whose sole mission in life is to serve you at all costs. Or, you might get a free JAG defense attorney who has bills to pay and is worried about their own career more than yours. You have to remember that the free JAG defense attorneys are themselves subject to the same system that is actively trying to screw you over. They’re human. Good people, but by God, they’re human.
The Allocation Of Resources In The Trial Defense Services
The TDS adheres to a structured priority system which guides the allocation of its resources:
- **Priority 1**: Includes General Courts-Martial (GCM), Special Courts-Martial (SPCM), Article 32 investigations, and cases involving pretrial confinement.
- **Priority 2**: Focuses primarily on non-judicial punishments such as Summary Courts-Martial (SCM), Article 31 advice, suspect counseling, and representation at various administrative proceedings like officer and enlisted elimination boards.
- **Priority 3**: Covers additional legal services as needed.
Now, the Army will tell you that prioritization ensures that resources are allocated efficiently, addressing the most critical needs first. If you are under investigation and need a defense attorney to step in and do everything possible to ensure that charges are not preferred against, you are a lowly “Priority 2” matter. However, when you realize that the prosecution is blessed with an almost unlimited budget, you start to question the intent behind the prioritization. Combine that with the fact that military prosecutors boast a high conviction rate which means either military prosecutors are the love child of Perry Mason and Matlock or the odds are intentionally stacked against the defense. One way to do that is through resource limitation.
Trial Defense Counsel Attorneys Are Themselves A Victim Of The System
Defense counsels should be staunch advocates for their clients’ interests, distinct from trial counsels whose role is to serve justice. The TDS counsel should work solely for the benefit of the client, guided by the rules of professional responsibility and military ethics. This includes making sometimes unpopular tactical decisions if they benefit the client, as supported by the case United States v. Hannah.
Spending years there themselves, Bilecki would like to think he was enumerated among those who held the standard. However, there was a reason he knew he had to exit the military and continue the fight on the civilian side. That’s because it is just not a fair game from the start. The Army standards insist that maintaining integrity and professionalism is crucial.
The defense counsel is advised to fight hard but fair, always within the bounds of the law and military regulations. If that is true, then why does the military justice system come down so hard on those that fight hard? Just recently in 2023, the Army canned General Warren Wells for advising JAG defenders that they were the last line of defense against false sexual assault allegations. They fired him for telling the JAG defenders to act in an ethical manner. It doesn’t seem like justice is the end game here.
Navigating Relationships Within the Military Justice System
Once again, the Army standards would say that the relationship between defense counsel and client should remain professional; emotional detachment is key to providing unbiased legal advice. The only problem with that is that the team here at Bilecki absolutely cares for the lives of those we defend. They are often some great kids who just did some stupid things, but they don’t need to have their lives ruined. We fight like hell for our clients because we know what is awaiting them on the others if we do not. It is the end of the careers, retirement benefits and maybe even their freedom. We’re sorry, but we do give a shit about our clients. Army Trial Defense Services plays its crucial role, and we don’t deny that. Their mission is righteous, but the poor execution comes from them having one armed tied behind their back from the start of the fight.
If you are facing an investigation or court martial within the military justice system, you’re going to need experienced counsel. We’d suggest us, but if not us, get someone in the ring who knows how to fight with both hands. We say this often here, but you may very well love the military, but you cannot coexist with a military justice system that is out to destroy you. Trial Defense Services is a victim of that same system. That’s the core truth in understanding the gap between the mission and execution of the Army’s Trial Defense Services.
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