March 3, 2011

"When I arrived back in 2001 I found 10,000 lawyers in the Department of Defense."

Says Donald Rumsfeld:
They're there at every level. We live in an enormously litigious society and the Congress contributes to that. As a result, there's practically no step that's made by anyone in the Pentagon and in the Department of Defense where they do not take into account the legal implications and consult lawyers about it....

There's a pattern in the department, at the top level, the chairman and the chief and the Joint Chiefs will recommend some rules of engagement for a certain circumstance. It will then be sent down the chain of command and it will get to the next command level, maybe the Combatant Commander, and the Combatant Commander will look at it, and then he will not want to violate it. So he might take a little tuck in it. And then it goes down to the next level. And it's got now it's in a country commander. And he looks at it and he doesn't want to break the rule so he takes a little tuck in it. You end up with four or five layers down there taking tucks and you end up with some rules of engagement that don't look like what the chairman of the Joint Chiefs or the Joint Chiefs of Staff or even the Combatant Commander intended. Now why is that? Well, it's fear. It's because of our litigious society. It's because of Congress overseeing things and having hearings.

37 comments:

Hoosier Daddy said...

There's a pattern in the department, at the top level, the chairman and the chief and the Joint Chiefs will recommend some rules of engagement for a certain circumstance

There was a time when ROE meant kill as many of the enemy as possible.

LarsPorsena said...

2400 years ago...Stranger, go tell the Spartans we lie here obedient to the law.....Today ..Stranger, go tell the Americans we lie here because of lawyers.

Pogo said...

Same thing in medicine.

Vaccine shortages are an example.

Useless and lengthy medical notes.

Ass-covering tests.

Absent or slowed innovation.

tim maguire said...

What does "tuck in it" mean?

Don't Tread 2012 said...

@tim

I think the meaning is 'pull back' or 'restrict'.

Same thing in my industry, in terms of applications - because my company is generally terrified of lawyers, there are certain applications that I can't sell product for because of liability.

We have a saying in our company when management tells us we can't go after certain business - its called 'TML'.

Too many lawyers.

Marshal said...

Tim,

He means at each step a new lawyer makes the rules slightly more restrictive. This becomes the new standard, and the next lawyer creates room for error from that point.

Pogo said...

If the automobile had not been invented until today, Henry Ford would have gone bust in two years.

It's difficult to imagine what we do not have because of fear; what inventions never came to be.

And I got out of practicing geriatrics in part because I knew that eventually the patients I took care of in nursing homes would inevitably result in a lawsuit. Screw that.

tim maguire said...

Thanks Don't Tread and Marshal. If I didn't know his general point--too many lawyers interfere with operations--I wouldn't have had the slightest clue what he's talking about. I've never heard the phrase "tuck in it" before.

Every night at 8 I read my daughter a story and "tuck her in," but despite the similarity, I was pretty sure that's not what he meant.

traditionalguy said...

Rumsfeld is pointing to bureaucrat's habit of using of lawyers to create an excuse if something goes wrong. The famous " I am not a lawyer " excuse is another side of the coin from "the lawyers approved of it" defense. In real life decisions made quickly and without full knowledge can in hindsight make one appear incompetent and open one to an accusation of wrong doing by peers who want to get the next promotion over you (or even Congressman Murthas wanting the next election). So the protocol becomes to ask a lawyer for an opinion which shifts the blame for life's necessary screw ups to the lawyers. Playing this written memo game of legal opinions takes a lot of time.

David said...

The only beneficiarys of excess litigation are.....lawyers. All three branches of our government are dominated by.....lawyers.

Freder Frederson said...

Gee, and even with all those lawyers fighting him, he still managed to get the Geneva Conventions chucked out the window, admit to personally violating it, condone torture and get away with it.

Sounds like there simply aren't enough lawyers (at least lawyers with a spine) at the Pentagon.

Of course with lawyers like john Yoo and Ann Althouse justifying torture (I know, Ann never justified torture, she just refused to ever admit that anything the U.S. ever did was torture, even if it was), I guess you can get away with almost anything.

Freder Frederson said...

Vaccine shortages are an example.

Vaccine shortages have more to do with the fact that vaccines just aren't very profitable than fear of lawsuits.

Pogo said...

"...vaccines just aren't very profitable"

...because of lawsuits, as well as price controls.

Paul Zrimsek said...

Hope you counted your blessings, Don. It coulda been 10,000 drummers.

Hagar said...

Dick the Butcher: "First, we kill all the lawyers!"

However, this sort of thing is endemic to all reviewers; it is by no means restricted to lawyers. You give a bureaucrat something to review, and he is going to put his two cents in and comment. Otherwise someone could go to thinking he was not working and his position could be eliminated. And the comments are goig to be negative and err on the side of caution.
And most commanders (military term for executives) are going to want to have reviewers, so that they can say that whatever was not their fault, they just relied on the staff review and followed its recommendations.

David said...

Think Ft. Hood Massacre.

It's why that guy (I refuse to mention his name) was even in the army. Fear of some legal consequence in criticizing, disciplining or firing him.

There's a direct and strong connection.

David said...

"Vaccine shortages have more to do with the fact that vaccines just aren't very profitable than fear of lawsuits."

Drug companies won't spend money on developing vaccines, which is an even greater problem than reluctance to manufacture and sell existing vaccines. While it is true that low profitability is a factor in this, the low profit is mostly attributable to government regulation and governmental influence in keeping prices low.

Most of these regulatory schemes are the brainchildren of lawyers.

EDH said...
This comment has been removed by the author.
EDH said...

Pogo said...
It's difficult to imagine what we do not have because of fear; what inventions never came to be.

Would that be one of those things "we know we don't know," or one of those things "we don't know what we don't know"?

My guess, the former.

Edwin said...

Practical example of "taking a tuck in it":
Old Air Force Fighter Pilot:
"The Air force had a rule: "Thou shalt not fly thy plane in the trees." I added 100 feet to it and never had a problem with it."

Paul Zrimsek said...

Properly deployed, 10,000 lawyers could bring down a medium-sized enemy nation.

Don Meaker said...

@Fredersen
I will point out that Rumsfeld didn't chuck the Geneva conventions out the window. The Geneva conventions do not apply to illegal combatants. If we applied the Geneva convention to terrorists, we would be in violation of the Geneva Conventions. The US does not torture. Rather, we applied to the terrorists the same kind of treatment that we give our soldiers, that does not cause permanent damage. Waterboarding is not torture.

What Don R. did is engage in a conspiracy to obey the law and the Geneva accords.

Any other falsehoods?

edutcher said...

The Zero has Gates telling the media we need to cut teeth out of the Army and Marine Corps in the middle of an infantry war.

You wanna cut defense?

Start with the lawyers.

Freder Frederson said...

Gee, and even with all those lawyers fighting him, he still managed to get the Geneva Conventions chucked out the window, admit to personally violating it, condone torture and get away with it.

Maybe because it wasn't considered torture until the Demos and the rest of the creep Leftists had to invent something to complain about.

Even Pelosi Galore signed onto waterboarding.

PS The story goes a Predator had Mullah Omar in its sights and the operator was ready to hit the Fire button. Some lawyer objected and we lost the opportunity.

Rumsfeld was wild.

Richard Dolan said...

tim m: "Every night at 8 I read my daughter a story and "tuck her in," but despite the similarity, I was pretty sure that's not what he meant."

Sounds like he's channelling the point by CJ Roberts in the FOIA case highlighted here a couple of days ago. Too bad Roberts didn't use this example rather than the one about the squirrel.

Ann Althouse said...

"What does "tuck in it" mean?"

He's using a *sewing* metaphor! You take a tuck in an article of clothing when you are tailoring it to a narrower figure.

Triangle Man said...

It's difficult to imagine what we do not have because of fear; what inventions never came to be.

No flying cars. The technology is there, but the FAA and the DOT and the trial lawyers have screwed it up for all of us. Oh, and Al Gore too. Damn his eyes.

jfruser said...

PZ wrote:
"Properly deployed, 10,000 lawyers could bring down a medium-sized enemy nation."

Properly deployed, 10,000 lawyers could be used as paving on my city's streets.

MadisonMan said...

How many lawyers were there when he left?

Geoff Matthews said...

To this day, I still admire Don Rumsfeld for the service he performed during W's tenure. I've viewed the negative press he received as partisan sniping and childish name-calling.
He's a far better person than his critics are. Thank you, sir, for your service.

John said...

I have been a lawyer at both the Penegon and DHS. I have also been to combat as a JAG. A terrible tendency has developed over the last ten years for decision makers to over depend on lawyers. When I first started doing this stuff, decision makers did their jobs and the lawyers stood to the side an injected themselves if the decision makers did anything illegal. Basically, the client knew what he had to do, the lawyers job was to give the decision makers the left and right edges of their available options.

Now that dynamic has reversed. Instead of making a decision and seeing if it is legal, decision makers often go to the lawyer and ask for options. This allows the decision maker to avoid responsibility. He can say "well legal told us we had to do it this way". It also transforms what ought to be policy decisions into legal imperatives.

Furthermore, lawyers are dangerous people to have on a staff. They are not trained in the area that the client operates. They may be smart people, but they are not warfighters or cops or emergency managers. Sadly, the often know just enough to be dangerous. But, they are generally smart people who are trained to make bad argument look good. So they can off become a really powerful advocate of bad ideas, not out of malace but because they don't know any better.

virgil xenophon said...

While there are sometimes very valid reasons for restrictive ROEs in re the WHAM mission, my first realization of the extent of the cancerous nature of the transformation of war into "lawfare" by an over lawyerd society with unrealistic expectations about "precision" warfare due to the hype surrounding Desert Storm and PGM munitions as played out on tv for PR purposes, came just prior to the invasion of Iraq. Does anyone remember the imbriolgo involving those two Illinois ANG F-16 pilots that accidently expended ordinance on Canadian ground troops conducting night live-fire training? During my time in the USAF--and especially during my combat tour in Vietnam--ant such "short round" type incident involving accidently dropping on friendlies or one's own troops was treated as a "lessons learned" accident investigation. The possibility that "bad faith" might be implied was incomprehensible and such investigations were strictly "in-house" chain-of-command" affairs with NO political/legal overtones.

(In the the incidence I referenced it should be remembered that at the time the Bush administration was trying to enlist the Canadians into a greater war effort and the Canadian anti-war segment of the public
was going nuts calling the pilots "criminals.")

To the disgrace of BOTH Bush & Rumsfeld
(it pains me to say this) these two Ill ANG types were thrown under the political/judicial bus to curry favor w. the Canadians. FIRST, they were charged with criminal felonies , THEN were given a very public show-trial at 9th AF Hq at Barksdale AFB, Shreveport, La., in which the relatives of the killed/injured Canadians were flown in at tax-payers expense to sit, like Madam Defarge/lafarhe/lefarge (depending on one's predelections)
awaiting the guilty sentence to be passed. In the event cooler heads eventually prevailed and criminal charges dropped, but the careers of two fine officers were ruined and their skills lost to the nations defense--sacrificed upon the alter of PC lawfare.

Diggs said...

Having 10,000 lawyers in the DoD wouldn't be a problem if they were soldiers first, then lawyers. The ones I met in the Army were lawyers first, and a couple were also soldiers.

Belkys said...

DR is a lawyer.
Althouse is a lawyer
GHR is a lawyer.
We are lawyers.
And i guess everyone here attacking lawyer is or a lawyer or a law student. If not, why are they here? ( But for the northwestern story)

30yearProf said...

The Air Force has 2/3 less fighting personnel but the same number of JAG officers as it had decades ago.

Administrative BLOAT.

Richard Dolan said...

In Rumsfeld's interview with Glenn R (available on PJTV), Rummy notes that the Justice Dep't lawyers were always careful to restrict their advice to describing whatever legal limits applied to the policy options (defining the 'playing field' was his description), but stayed out of any evaluation of the policy options themselves.

That is what lawyers are supposed to do. If it takes 10,000 of them at DoD to do it, no problem. My guess is that most of those 10,000 have nothing to do with defining policy, even less with setting rules of engagement. Much more likely to be things like personnel issues, contracting stuff, etc.

dick said...

I remember reading on Blackfive about a female JAG who tried to tell the snipers that they could not use certain ammo which was the ammo they used for long distance shots. We lost some good snipers due to her decision because they had to move a lot closer and became visible to the enemy. She knew almost nothing about ammo and shooting but still made the decision.

Stephen said...

"It's because of Congress overseeing things and having hearings."

Is that not how the whole representative democracy thing we find self-evident works?

It's awkward when your boss looks over your shoulder to see what you've been doing but that doesn't mean we shouldn't have oversight.