Dan: 0:00

Lieutenant Colonel Susan Upward is a Staff Judge Advocate in the US Marine Corps. I spoke with her recently, and she wanted to make it clear

Susan: 0:08

That I'm here in my personal capacity. My opinions are my own, don't reflect those of the Department of Defense, or the United States Navy, or the Marine Corps. That's important because God knows somebody may, you know, hear this recording and say she's representing the DOD, and I'm not.

Dan: 0:26

You've probably seen or heard of the TV show JAG. She's a JAG in the Marine Corps. And no, her job does not resemble the show.

Susan: 0:36

I've not flown in a F-18 or an F-14 anytime, in my career. Young attorneys sometimes get a little starstruck by shows like JAG where they're like, oh, I'm gonna go do operational law and be beside the commander as as rounds are going overhead. That is a very rare occurrence. Even at the height of the Iraq and Afghanistan war, there were very few attorneys in those positions providing that advice at at the point of friction, as I call it.

Dan: 1:04

Susan did work at the point of friction, and we'll talk about that later. On a day to day basis, her job is to serve as a kind of in-house counsel for a handful of commanders. And what she advises them on most are military justice issues.

Susan: 1:21

So a Marine gets in trouble, you know, what are the options open to the commander to deal with that disciplinary issue either administratively or through the military justice system? There are massive demands on their time. They don't and military justice or they don't wanna spend a lot of time with their lawyer. Let's be honest. They wanna be out training, equipping, and manning their unit to prepare for warfighting. That's what we do.

Dan: 1:50

Mhmm.

Susan: 1:50

So the more that I can take information in, process it from the staff, work with the staff to come up with, you know, reasonable courses of action, and then take it to the commander for a decision point so that he or she can listen to the information and make a decision in fifteen minutes, instead of processing all of that information within an hour and fifteen minutes. That makes a huge difference, to their timeline.

Dan: 2:25

I'm Dan Heath, and this is What It's Like To Be. In every episode, we walk in the shoes of someone from a different profession, an aircraft carrier commander, an interior designer, a CFO. We wanna know what they do all day at work. Today, we'll ask Lieutenant Colonel Susan Upward what it's like to be a Marine Corps JAG. We'll talk about the different ways that soldiers get themselves in trouble, what it's like to give battlefield advice about what you can and can't do, and why she once told the general his plan was a colossally stupid idea. Stay with us. So what would be like a a greatest hits list of reasons why a Marine would have gotten in trouble and spawned a call to you?

Susan: 3:14

Anything you can think of. So I routinely get phone calls for Marines who perhaps have gotten a DUI out in town.

Dan: 3:21

Okay.

Susan: 3:22

A Marine has gotten into a domestic violence incident. A Marine has been arrested for or has tested positive on a drug test or been arrested for an assault.

Dan: 3:32

Okay.

Susan: 3:33

Anything that you can think of in the criminal system translates to the military justice system as well. And then we work closely with our state and local partners on jurisdictional issues. Who's taking the case? Is it the military justice system, or is the state going to handle those issues?

Dan: 3:51

Susan is not in charge of prosecuting those cases or defending them. There are other military lawyers who handle that. Her job as a Staff Judge Advocate is to provide options and recommendations about how to handle the case to the commander who will ultimately decide how to move forward.

Susan: 4:09

What I do is provide advice to the commander to say, hey. I believe the evidence is sufficient here to go to court martial. Or, hey. I believe there's evidence here, but it may not be admissible at court martial. You may want to think about nonjudicial punishment or administrative counseling or administrative separation from the Marine Corps.

Dan: 4:29

Mhmm.

Susan: 4:29

So I provide options or what I like to call off ramps, to the commander so they can make a decision about how the case should be processed.

Dan: 4:39

I'm not sure I'm clear on why would something that a particular Marine did be a military justice issue versus a civilian justice issue.

Susan: 4:49

Sure. So the civilian and military systems actually have different missions. The civilian criminal system obviously is, for deterrence and for punishment. That's the main thing. The military justice system has other goals, including good order and discipline of the unit. So you will find things in the military justice system that are not crimes in the civilian system. For instance, disobeying an order, failure to, being UA, unauthorized absence, not going to work, or being absent without leave, or deserting.

Dan: 5:25

What would you say is the biggest difference between civilian justice and military justice?

Susan: 5:33

Great question. And I think it's, I have absolutely no power at all as an attorney. I think sometimes people look at shows like Law and Order, and you have attorneys who are, you know, working deals or saying, hey. I'm gonna work this plea deal for you if you do this for me. In the military system, the attorneys don't have that power. That power belongs with the commander. And it's not just in military justice. You know, my specialty is in national security and operational law. And when I am, you know, forward, with a combatant commander or a combat commander, a a commander in combat, if you will, part of what I do is provide them options on rules of engagement, what their authorities are, what they have the capabilities of doing. But at the end of the day, that decision on whether they shoot, whether they take a certain action, that is the commander's decision and the commander's decision alone. I am merely an adviser to that commander.

Dan: 6:34

Oh, so you're saying that people in your role might be deployed, like, let's say, in Afghanistan to provide counsel on what you can and can't do in certain situations?

Susan: 6:44

Yes. And that is actually, what I did in 2023. At the time, I was stationed in Cherry Point. I was the law center director at Cherry Point, but I spent six months deployed with Combined Joint Task Force - Operation Inherent Resolve. So I was stationed in Kuwait. With a commander who was in in charge of a multinational force and our forces in both Iraq and Syria. And I provided, operational law advice to that general based on and, of of course, in late 2023 is when Gaza, happens.

Dan: 7:20

Sure.

Susan: 7:20

So I was providing advice on self defense and the use of of kinetic and nonkinetic operations at that time in the Middle East.

Dan: 7:28

Kinetic and nonkinetic is a euphemism for what?

Susan: 7:32

Firing real missiles, and then using other... what's a good way to put this? Nonkinetic, such as turning on our electronic means to bring things down. So drones is obviously a good indication of this. You can shoot down a drone with something

Dan: 7:50

Okay.

Susan: 7:50

Or you can cause a drone to fall out of the sky by turning on certain electronic means.

Dan: 7:56

Oh, that's fascinating. Okay. So what was a a memorable situation where you had to give advice during that period?

Susan: 8:03

Sure. Yeah. Shortly after Gaza happened, and and it it's to be clear, the at that time, Iraq and Syria, was a multifaceted, operating space. You had the Russians who were in play in Syria. They were helping at that point Assad's regime. So you had Russians who were in Syria. Obviously, you had ISIS. We had our partners in both Iraq and Syria trying to fight ISIS. Obviously, to the north is Turkey. So there's a multitude of considerations in operational law. But a a memorable time, was one of our air force partners brought to us a plan to, basically, I will say, engage, one of our adversaries.

Dan: 8:51

Mhmm.

Susan: 8:52

And part of my job is to go through the rules of engagement, go through the authorities we have been given to engage all of our certain adversaries, and decide whether we had the authority to do that or if we had to ask for permission to do that from someone else. And the conclusion that I came to with the general was, yes. You have the ability to do this. You have the authority to do this. And the very next question out of the general's mouth was, well, Susan, I'm asking your opinion. Do you think we should do this? And my answer was, this is a colossally stupid idea, and I do not think operationally, this is the smartest idea you've had today. And he laughed. And I believe my boss at the time who was an Army Staff Judge Advocate was like, that's just the way Marines provide advice. But I was being honest. Yes, sir. You can do this, but it's a matter of should you.

Dan: 9:48

I'm curious about the the rules of engagement that are sort of guiding you. Are those something that come from an international body or treaty? Are they national continuous rules, or are they things that are created, you know, kind of bespoke for each particular campaign?

Susan: 10:07

It is somewhat derived from international rules of law,

Dan: 10:11

Okay.

Susan: 10:12

law of war, law of engagement. But, again, commanders are the ones who come up with the rules of engagement. So they will decide, hey. You have offensive capabilities here. It's not just a free fire zone when we're, you know, in kinetic operations. There are certain rules that you can engage ISIS. You cannot engage Russia, for instance. And that's just a hypothetical. That's not the actual rules of engagement. But commanders come up with that because it it plays into the larger operational strategy. So it doesn't mean... again, always service members have the right to self defense. And if they believe they are being threatened, they have the right to, you know, return fire. However, it's always proportional. It needs to be, you know, the minimum the standing rules of the use of force is it's the minimum force required to quell that threat, if you will. So part of what we do as as attorneys is help commanders craft those rules of engagement and then also to apply them.

Dan: 11:14

Well, that sparks a question. I mean, are you sometimes in those almost real-time situations, or do you typically have more time to kinda calibrate and reflect and...

Susan: 11:24

There is very often that we are in those situations, and that was the case in Kuwait. I remember being in a meeting in Kuwait where there was a threat, in Iraq, and the operations officer who was also a Marine and myself ran out of the meeting. We ran into the command post, and there was an outpost calling, concerning self defense. And, you know, I had to quickly do an analysis of what they were doing. And, of course, I told the commander, you have an inherent right to self defense. If you believe you are threatened, you have the authority to shoot back. But I'm also there to stand by the commander and say, hey. This truly is self defense, and here's why. Sometimes I'd like to call it the the legal safety blanket that I just help the commander think through what most commanders and let's be honest, most of our commanders are extremely bright and know the rules of engagement and when they can and cannot engage. But it helps to have an attorney there to work through some of the nuances. But I guarantee you whenever there's a commander making that call, there is a lawyer that's probably close behind.

Dan: 12:29

Walk me through some of the nuance in these situations. Because I think to a civilian like me, I'm like, well, if someone fired on you and you have the right to self defense, why do we need lawyers to tell us we can fire back? Like, where where does it get into the gray area?

Susan: 12:43

Sure. It's most of the questions come in in a matter of imminence. So it has to be an imminent threat. And the way we look at, self defense is hostile act and hostile intent. There has to be some imminence with the act, and there has to be some definitive act that has intent with it.

Dan: 13:03

Okay.

Susan: 13:03

So the way I teach this to our students when we're talking about hostile act, hostile intent is someone holding a knife may be a hostile act, but just holding the knife itself doesn't intend to stab someone. For instance, my wife holds a knife all the time in the kitchen. That doesn't mean she has the intent to stab me. Maybe she does some days. I don't know. But

Dan: 13:25

You can't call in a drone strike on her just for that.

Susan: 13:28

Correct. Right. But a hostile act, would be someone holding a knife over their head and coming at you. Now you have a hostile act with hostile intent, and the threat is imminent. That would be more likely. So a lot of what we do with our commanders is they may see something as a threat. Hey. We see someone digging at the side of the road. That may be someone digging an IED. Okay. Is a convoy coming down the road? Is there a way to intercept this person before calling in a drone strike? There's also positive identification. Are we sure that this person is digging an IED? And if so, then we may have a self defense claim. It also gets into offensive and defensive operations. Self defense, obviously, is a defensive operation, where offensive operations is no, we're going to strike before that person actually plants that IED and then runs away. So there are other options. I think sometimes commanders just... I often call it as walking to right and running to wrong. Let's walk to right. Are there other ways that we can do this that get us to the same place?

Dan: 14:38

Hey, folks. Dan here. Let's do a casting call. Right now, we're looking for people in professions related to home building. So think architects, general contractors, possibly specific tradespeople involved in the actual construction, home inspectors, real estate agents. If you know someone in one of those careers who's a great talker, will you let us know? As always, you can reach Matt and me at jobs@whatitslike.com Thanks folks. And now, back to the show. Susan's role is almost a counterweight to the way a lot of Marine corps officers are trained to operate.

Susan: 15:23

By the time our lieutenant colonels or colonels or even our captains who take company command, when they're dealing with military justice, we are taught very early on in our military careers to have a bias for action, you know, run towards the guns. What that comes to is more of an outcome based process, an outcome way of thinking instead of a process of thinking. We want them to think about the process, in military justice, in operational law. Because, let's be honest, a lot of what we do is outcome based. We want to win. We want to have decisive actions on the enemy. Not always the best course of action in military justice. So getting commanders to back away from that mindset that has been baked in since the very early days of their military career is sometimes difficult, and that's what a Judge Advocate does.

Dan: 16:16

Does it put you in the situation where you are the person that has to say no and be kind of a buzzkill to the commanders who have this bias for action and doing what they want? I mean, do you feel like you're sort of the, I don't know, the the restraint on what they would really like to be doing?

Susan: 16:33

I think some people would tend to think that we're the no police.

Dan: 16:37

Mhmm.

Susan: 16:38

And I'm not. I try not to be a roadblock. I try to be a speed bump. And I describe it that way because I think there's a misconception out there that the lawyers are always saying no. Probably if you ask my boss right now, Colonel Colgate, who's the installation commander, down at Marine Corps Base Quantico, she may call me the no police, but I'm not. I just try to get her to think about other ways of doing things. I'm not the no police. I'm the yes, but. Hey. I think we can get to where you wanna go. I just wanna take a different route to get there. I think some people just think the lawyers are the ones saying, no. You can't do that. I have to be honest with you. There are times where I've told commanders, I don't think you can do this, and they can go and do it anyway because I am not a roadblock to their action. They may take that action anyway. They may disagree with my advice, and that's totally fine.

Dan: 17:30

And what happens in those situations where you say, hey. I think this action x is breaking the rules, and the commander says, well, respectfully, I'm gonna do it anyway. What happens next?

Susan: 17:41

I don't think I've ever been in a situation where it absolutely breaks rules. It's never the law is never that clear.

Dan: 17:48

Okay.

Susan: 17:48

I have told commanders, hey. I believe the order, because, obviously, we have Marine Corps orders and, you know, Secretary of the Navy, instructions that tell us to do certain things. My interpretation, I will tell them, is this, and this is what I believe you have to do. And they may say, no, Susan. I think you're wrong, or I'm gonna do this anyway. And I usually tell them, roger that, sir, and we'll march out. I often tell them, and I've told every boss that that I've provided, legal advice to, if if you are going to go against my advice and I feel strongly about it, just know that I'm gonna make a note of that in my record. I have a responsibility, to make a note that the on the advice that I provided. Because I think another misconception is, I don't have an attorney client relationship with my commanders. My client, as a as a Judge Advocate in the Marine Corps, my client is big Navy. So United States Navy is my client.

Dan: 18:44

Oh, that's interesting.

Susan: 18:45

And, yes, I provide advice to commanders, but the advice that I provide them is not privileged. It's confidential, but it's it's not privileged. So I do make a note of that and say, hey. I'm gonna go back to my office and make a note that this is the advice that I provided you. But I think in my, gosh, I'm going on to 22 years now in the Marine Corps. I think I've only ever written one of those memos once.

Dan: 19:09

Really?

Susan: 19:09

It's very rare.

Dan: 19:11

Wow. That's kinda surprising, actually. Yeah.

Susan: 19:14

Yes. Because people are usually like, no. Commanders are going to poo poo the lawyers all the time, and that's that's not the case. Usually, we're extremely, trusted advisers. So the command team is usually the commanding officer, the chief of staff or the executive officer, the sergeant major who deals with all of the enlisted issues usually, and the attorney. And very often, we will all get into a room and discuss things. And I may disagree with the sergeant major or the chief of staff, but at the end of the day, the commander is going to make the final decision. And my job is to, like I said, be a speed bump, not a roadblock. Get her or get him to the destination they wanna go to in the correct manner.

Dan: 19:57

These conversations where you're having to be the speed bump, what is the tenor of them? Like, is it calm and rational, or are you yelling at each other, or, like, what's the norm?

Susan: 20:07

I can guarantee you I am never yelling at a commander. The commander might be yelling at me.

Dan: 20:12

Not a good career choice

Susan: 20:13

No.

Dan: 20:13

I suppose.

Susan: 20:15

Not a good career choice. You know, as a Judge Advocate, one of the things we do is, like I said, build these relationships with commanders. The way I provide advice to each and every commander is different because the commanders are different. We all have lenses, through which we look at the world, and I know their lenses are different necessarily because they're individuals. So I try to tailor both my advice and the method in which I give it for each commander that I provide advice to. So I've definitely had commanders that are to the point, want the the bottom line up front. That's a a good term for the military or the "bluff", the "bottom line up front." They just wanna know, hey. What's the bluff? Tell me what the bluff is and what you think. There are other commanders that I've had that are are much more nuanced. They want to sit and, talk through certain options. I have other commanders. A long time ago, before I was an attorney, I had a commander who specifically wanted to see the regulation. If there was something that said he had to do something, you actually had to bring him the physical book and show him where it said that.

Dan: 21:22

Oh, wow.

Susan: 21:23

But I also try to go in with options. Commanders like to know you know, we call them COAs or courses of action. That's how we do planning in the military. So I try to come up with certain COAs. You know, COA one, COA two, COA three. Here are certain off ramps that I think you could take to get to the same destination. Here are the pros and cons of both of them, and then allowing them the decision space to make that decision in the most informed way possible.

Dan: 21:52

Let me run a Hollywood scenario by you. So there's, at the point when we're talking, one of the top downloads on Netflix is a film called House of Dynamite by Catherine Bigelow. And just for people who haven't seen it, it's very easy to summarize the plot. It starts with the launch of a nuclear missile toward the United States. They go through a period where they're trying to figure out is it real, it is real, they try to shoot it down, doesn't work. And then, you know, in the 18-ish minutes before it hits the city of Chicago, there are these kind of frantic, agonized conversations about what are we gonna do, how are we gonna respond. The president's gonna push to make some response even though it's not clear in the fog of war who launched it. And China and Russia are denying it, can you believe the denial? Some people think it's most likely North Korea. I'm just curious, like, with a scenario like that, what pops to mind for you? Like, what would you be thinking about if you were called on to give legal advice, may maybe specific to the response in a situation like that?

Susan: 22:58

I would be concerned if I was ever providing legal advice for nuclear weapons. We don't let we don't let Marines do that. But I think the closest corollary would be 9-11. If you look at 09-11 and the response to 09-11, and I've read the 09-11 commission report, as a national security attorney, it's I think it's a critical read. Because if we think back to that day, what we knew and didn't know and what response we were going to take. There were lawyers in the room literally discussing who can order the downing of a commercial aircraft over the continental United States. That was a serious conversation that was going on at NORAD. And the the planes that went up in the air, that day, the two F-16s, did not have weapons on them, and they were prepared to ram ram those planes.

Dan: 23:55

Wow.

Susan: 23:56

Knowing the basis of what you can and cannot do, and obviously, I believe self defense calculations that we do for self defense are part of that conversation. I don't think there's any way to adequately prepare for those scenarios until you are in them. And when you are in them, then it is taking a reasoned approach to what we know and what we don't know, and then providing the commander options.

Dan: 24:21

You know, one thing that's been in the news is the strikes on alleged drug smugglers in in the Caribbean. Is there a JAG angle for that? Like, how would you analyze a situation like that?

Susan: 24:33

Like any strike, as a Judge Advocate, I would I would have to look at the rules of engagement. I would have to look up our authorities in that area of operations. I'm obviously not currently working in the Pacific, so I have no clue, what a legal analysis is going into that. But at the end of the day, our basics for how we analyze offensive strikes, or strikes of that kind remain the same. And I would assume that there are attorneys, if not Judge Advocates, doing that calculation for the Navy or the Air Force. I'm not even sure who's doing the strikes, to be honest with you.

Dan: 25:14

So, Susan, we always end our episodes with a quick lightning round of questions. Here we go. What is a word or phrase that only someone from your profession would be likely to know, and what does it mean?

Susan: 25:27

I would use the word dispo, and that is short for disposition. And in my profession, dispo is moving a case off your docket. So whether a case goes to court martial and is an acquittal or a conviction, whether it's an administrative separation that is seen through to conclusion, what we are working towards is getting the process to dispo a case and move on to the next case.

Dan: 25:56

What phrase or sentence strikes fear in the heart of a Judge Advocate?

Susan: 26:01

When somebody comes into my office or calls me on the phone and says, hypothetically speaking, because it's never hypothetical. It's already happened. They've already done something or somebody has done something, and now they're trying to fix it. So whenever I hear, hypothetically speaking, my heart immediately sinks to the bottom of my stomach, and I'm like, oh, they didn't call me first. They've done something now, and we just have to figure out what to do next.

Dan: 26:34

What was the biggest mess that you've ever been called into in that spirit? Like, something where a lot had already happened without your guidance, and you had to help dig out of it.

Susan: 26:45

I will tell you that I was a Staff Judge Advocate during COVID, which was a extremely interesting time. I had just flown back from Atlanta. I was attending a conference. I was flying back through Atlanta. And I landed in DC, and I had another conference to attend in DC before I came back down to Quantico. I was also stationed at Quantico at that time. And I remember sitting in the conference, and I was just there for the day, and then I was gonna be back at the command the next day. And a fellow officer texted me, and he said, they are talking about locking Lance Corporals in rooms and not letting them out, which of course was...

Dan: 27:23

Okay.

Susan: 27:24

This, of course, was the quarantine, isolation time, but I was not there. And and the text I received, I I kid you not, was they're talking about putting Lance Corporals in rooms and not letting them out. You have to get back here right now. And I said, hey. I'm on my way. And I jumped on the train and headed back into Quantico and got back and opened up the instructions and said, hey. This is what we need to do for isolation and quarantine, and here are the procedures we need to take. But I think

Dan: 27:52

Let's refrain from preemptive imprisonment for now.

Susan: 27:55

Exactly. Like, I get it. We're probably gonna isolate people during that time, but let's do it the right way.

Dan: 28:02

What is a sound specific to your profession that you're likely to hear?

Susan: 28:07

The phone always ringing. There are days that my deputy and I will go into the office, and we'll have a plan of legal paperwork or things that we need to process for the day. And it will get to be, you know, late afternoon, and we'll just look at each other and say, I I don't even know what's happened. We like to say that legal problems come in bunches, and sometimes those bunches happen a lot, and the phone will just ring continuously. And it's either a commander looking for advice or an adjacent Staff Judge Advocate trying to coordinate on something or my hire attorneys, the Staff Judge Advocate at the Commandant, his staff kind of inquiring as to what's going on with the case. The phone always ringing is is definitely the sound of a of a Staff Judge Advocate.

Dan: 29:00

What is an aspect of your work that you consistently savor?

Susan: 29:05

Being around Marines. Being around our junior Marines, and our junior officers, that is the best part of my job. They are amazing individuals. They are dedicated to the mission. They will go above and beyond, for you, for the command, for the commander, working incredibly long hours and and doing things that, quite frankly, you know, people of their age would be like, you were up for how long and you did what? And they they do it not for accolades, not definitely not for money. They are just salt-of-the-earth people, and I savor every moment that I can deal with, talk to, spend with with the junior Marines, that I am lucky enough to serve with.

Dan: 29:55

What's the nicest thing a Marine has ever done for you?

Susan: 29:59

Oh, that's tough. I have a mentor who is now a General, and I think the nicest thing that he's ever done for me has always been available. And not just to answer professional questions, but personal questions, you know, maybe times where this job can be a strain, and you're not quite sure, you know, you wanna move on to to the next step of your career. That's the professional part of it, but also being there personably.

Dan: 30:33

Mhmm.

Susan: 30:34

And really Really concerning themselves with you as a person. I am a better person for him being my mentor. Never mind being the world's okayest lawyer and an okay Marine. I am a better person because that Marine Corps officer has taken the time to speak to me on a both a professional and a personal level.

Dan: 31:04

Lieutenant Colonel Susan Upward is a Staff Judge Advocate in the US Marine Corps. It struck me as funny when Susan said, I try to be a speed bump. You wouldn't think that if you wanted to paint a flattering self portrait that that would be the metaphor you'd choose, but I think she's getting at something really important there that in any organization, military or business or otherwise, you're going to want a mixture of accelerators and brakes. Marines are accelerators. They're trained to run to the guns and Staff Judge Advocates are the brakes. As she said, they want to walk to the right, not run to the wrong. There are different kinds of brakes, people in legal roles, compliance, ethics, finance and there's a tension in being a break because slowing things down, questioning decisions, that's rarely what your colleagues want in the moment. Remember in the Chief Financial Officer episode, Steve Love said he didn't want to be seen as the CF-no? Just like Susan in this episode talked about not wanting to be the no police. Ultimately, some decision maker, a commander or a CEO has to make a call to accelerate or to break. The hope is that this tension between the two surfaces new options that aren't all one or the other. Wiser options. So that you're not stuck in a world of mindlessly chaotic speed or mindlessly sclerotic bureaucracy. There's a safe speed in the middle that achieves balance. Thanks to the occasional speed bump. Advising commanders on how to move cases to dispo, weighing kinetic versus non kinetic options, triaging DUIs and assaults and drug cases, and trying to defend the integrity of Big Navy as your ultimate client. Folks, that's what it's like to be a Marine Corps JAG. A special thank you to Major Matthew Weber, commanding officer at Recruiting Station Jacksonville for the United States Marine Corps. This episode was produced by Matt Purdy. I'm Dan Heath. See you next time.