STARRS Podcast

The Constitution Comes First: How Our Military Legal System Lost Its Way - Judge Bruce Tucker Smith

• STARRS • Season 2 • Episode 24

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On this episode of STARRS & Stripes, host Al Palmer talks with Judge Bruce Tucker Smith, a 21-year veteran JAG officer and former administrative law judge, who reveals how military legal services were compromised by diversity, equity, and inclusion (DEI) policies that prioritized ideology over combat readiness and the Constitution. Topics they discuss:

• Most JAG officers (70%) enter service directly from law schools that promote leftist ideologies
• Military lawyers failed their duty by allowing illegal racial quota systems to be implemented
• The infamous August 2022 memorandum from Air Force leadership violated anti-discrimination laws
• Military attorneys must remember their client is the service itself, not individual commanders
• Too many career-focused officers lacked courage to oppose policies that undermined readiness
• The Marines' approach of making officers Marines first and lawyers second should be emulated
• Future reforms should include reconnecting JAGs with operational military experience
• Secretary Hegseth was right to fire JAG leaders who had lost the trust of their clients
• Character and integrity in military service means putting mission before personal advancement

Join STARS in strengthening our military, restoring the warrior ethos, and ensuring transparency in national defense.

Read articles by Judge Bruce Tucker Smith:

The Woke Military: A Question of Paternity
https://starrs.us/the-woke-military-a-question-of-paternity/

Of “Independence” and “Guardrails”: The Military Left’s Lamentable Response to SecDef’s Firing of Service TJAGS
https://starrs.us/of-independence-and-guardrails-the-military-lefts-lamentable-response-to-secdefs-firing-of-service-tjags/

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For more information about STARRS, go to our website: https://starrs.us which monitors the elimination of the CRT/DEI/Woke agenda in the Department of Defense and promotes the return to a warfighter ethos of meritocracy, lethality, readiness, accountability and excellence in the military.

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Al Palmer:

Hello again, America. Welcome to another special episode of STARRS and Stripes. I'm your host Commander Al Palmer, Navy retired and a former Air Force F4 Wild Weasel. If that's not confusing enough, I'm also an old museum director. I'm here today to talk to you about the continuing mission of STARRS to strengthen our military, to restore the warrior ethos to defending our country and to make sure that we're open and transparent and honest with our people about how we do all of that. And a part of that, as you might imagine, has to do with our history in the recent past of trying to get rid of a program called Diversity, equity and Inclusion in the military. Part of that was generated by the old critical race theories of the progressives from years past. But we fought that battle, I think through this last election and now that we have a new administration we're beginning to attack those problems head on. And part of that has also been the issue of lawfare as it relates to how those programs are being addressed. Today. To talk about that, I've got a special and very important guest with me today.

Al Palmer:

Bruce Tucker Smith is a retired Air Force JAG officer, judge Advocate General. If you ever saw the old series on TV JAG. It's kind of like that's what it's about. It's military service to the military to help with legal affairs. Part of that's the uniform code of military justice, but also policy and operations that go with how the military has to function and be lawful and responsible to the people.

Al Palmer:

So Judge Smith was a 21-year veteran JAG officer. He served overseas, he served in the CONUS. He was at the command level, working on hard issues and policies. He also then went on, when he retired from the Air Force after nearly 21 years, went on to be an administrative law judge for the Department of Homeland Security, in which he retired from An amazing record on working with the law and with military. And Judge Smith, sir, it is a privilege and an honor to have you with us today to talk a little bit about how that affected you, what your view of it was in your long career and why it's important today to keep law a part of what we do in the military but also be accountable for it as well. So, sir, welcome to the show.

Bruce Tucker Smith:

Well, I'm honored to be here and very supportive of the STARRS mission. It is an amazing group of human beings, men and women from various services. I'm just honored to be a part of this effort and to help any way I can. So thanks for having me. This is going to be a great conversation.

Al Palmer:

Well, it is so, thinking about your history, how did you get into first of all, how did you get into law, and then, how did you, by any crook of imagination, get into the military?

Bruce Tucker Smith:

Well, it's actually the other way around. I think it was inevitable that I would be in the military. I'm actually a fifth generation military officer. My father was a naval aviator in World War II, korea, in the early parts of Vietnam. His father served in the same artillery battery with Harry Truman. His father was a Union Cavalry officer who fought at the Battle of Chickamauga, and on and on all the way back to the Revolution. So I think it's inevitable that I was going to put on a uniform, because that's what the men in my family always did. Um, I really wanted to be a pilot like my father and unfortunately I got my mother's eyes. So I was not going to be a military aviator, although I am a pilot. And because of my argumentative nature, I think it was foretold that I would become an attorney. So you know, always thought I would be in the military. The law found me and it was a good suit. And after law school it was inevitable that I would, you know, raise my hand and swear the oath.

Al Palmer:

So when you did that, you obviously like I did too I came from a military family and held my hand up and said I'll support the Constitution, not really understanding where you were going to go or how you're going to end up. Did that work out about the way you thought it was, though, when you joined?

Bruce Tucker Smith:

It did. But I had the benefit of having seen my father's career and and I think I had a better understanding of the military than maybe most people who come in as attorneys through what is called the direct appointment route. And then we're going to get into that. You know, we have the service academies. That's an obvious way of commissioning. You have people who do ROTC. I actually audited some ROTC classes undergrad. I just didn't want to commit to the haircut and the uniforms. When I was in college I was, but the always yeah, yeah. Jags typically come into the service through what is called the direct appointment route right after law school. They you know the various Jag cores are the various JAG Corps are good jobs and a lot of people.

Bruce Tucker Smith:

It's a buyer's market for attorney talent, because there are way too many law schools in America spitting out way too many young graduates and everybody's looking for a job, so it's fairly easy for the military branches to find lawyers they can put in a uniform. That's about 70% of the lawyer force throughout the Department of Defense come from the direct appointment route. The other 20% 30% come from what is called the funded legal education or the excess leave programs or the excess leave programs. These are people, typically O3s, young O3s, who meet a competitive board in their various services and if they are selected they go to law school. They're still accruing time and grade. Law school is their military assignment. When they commission or when they graduate from law school, pass the bar, then they leave whatever career field they had behind and now they become judge advocates in the service. So about a 70-30 mix between direct appointees and people who had prior military experience.

Al Palmer:

So those, though, that had the prior military experience by the time they became a JAG, had the experience of being in and around the service and probably, like us, you know, may have come from a military family, so they may have been more tuned in to the military than the guys who just came in.

Bruce Tucker Smith:

That's generally true, yes.

Al Palmer:

Yep, so did you notice that right away when you started practicing as a JAG?

Bruce Tucker Smith:

It's pretty clear who had prior service and who didn't.

Bruce Tucker Smith:

And I think yeah, and really one of the big problems that I think led to the entire DEI mess is you have to understand that in the main, america's law schools are bastions of liberal, left-leaning thought. It's just, it's not even debatable. America's law schools are pretty much run by the political left. There are some law schools maybe church-affiliated or maybe more conservative, but in the vast majority of cases America's law schools are run by liberals and in many times very left-leaning liberals, almost to the point of Marxism. So these young folks who come out of law school with no prior military experience, they've had this what I call soft Marxism ingrained, perhaps throughout their undergraduate, but certainly in law school, and so they come to the military with these leftist notions already in mind.

Al Palmer:

Preconceived ideas about how things should work.

Bruce Tucker Smith:

Yep and they're. You know the vague leftist diatribe and dogma which they learn. These words they utter them in law school. They really don't know what they mean or what they're saying and they think that the military is just like Microsoft or Walmart. Why can't we all just play nicely together and do diversity and equity and inclusiveness? And again in the minds of many new attorneys who joined the military. They really don't understand where they are, they don't get it.

Al Palmer:

Isn't that really a critical issue, though? Because you have to know the culture of the military to understand its mission and the requirements for the discipline and order that have to go with that, which, you're right, it's different than working for Amazon or Boeing or somebody else, so the culture has got to be there too.

Bruce Tucker Smith:

It is. And look, this is the profession of arms. The military is a profession and we have one mission to fight and win the nation's wars. In the Air Force we say our mission is to fly, fight and win, and don't you forget it. But it's the same thing. Anything that is not that is dangerous. Anything that is not about fighting and winning America's wars is dangerous.

Al Palmer:

As a famous fighter pilot, adolf Galan, said, all else is rubbish, and it's exactly right. You have to be able to do the job and focus on that. So the role of the JAG, then, is to interpret the law for the commanders or for setting policy, maybe at a little higher level.

Bruce Tucker Smith:

Well, it depends on who you are and what your job is. I would argue that the primary reason we have attorneys in the military going all the way back to Colonel John Tudor in the Revolutionary Army, who was the first judge advocate for George Washington, who was the first judge advocate for George Washington the role of the military attorney is to instill and maintain assisting the commanders and instilling and maintaining discipline in a fighting force. That's the main reason we exist. The disciplinary tools, whether it be nonjudicial punishment or the court martial world that is the reason we were invented. Unfortunately, over time that has gotten fuzzied and there are people in the various JAG Corps who frankly don't like the courtroom, they don't like the messiness of the military justice system and they would rather focus on being careerists who sit behind their desks and work on their own resumes. I'm pretty hard on the JAG Corps here, but as you increase in rank, you know, just like in the flying business Al.

Bruce Tucker Smith:

Most of the courtroom work is done by the captains in the Army, air Force and Marine Corps or the lieutenants in the Navy. They do most of the real courtroom work. Unfortunately, after that, as you progress and rank, you find yourself not really associated with the courtroom. You're more of a policy person who write legal reviews for your bosses which somebody reads and sticks in a drawer someplace.

Bruce Tucker Smith:

Yeah, yeah, it really is it. And again, one of the problems of how we got to this DEI mess is, frankly, I don't know the numbers and I hope it's a small number of attorneys. Stop forgetting what their mission was, which is to assist the commander maintaining discipline in the greater mission of winning America's wars. And I think the most important thing of this part of the conversation, Al, is, when you're a military attorney, your client is the service that you work for.

Bruce Tucker Smith:

If you're a Navy JAG your client is the United States Navy. If you're an Army JAG, your client is the United States Army. Yes, you work with people, yes, people sign your performance reports, but your client is the service. And again, I think one of the reasons we got into this DEI mess is because we had too many attorneys who, if they ever understood it, forgot that their client was the armed force whose uniform they wore.

Al Palmer:

So that's a really good answer to the question of who you serve and who you're working for. But in today's world, when we get into things like joint service operations and things like joint basing and those kind of decisions that are made, it gets a little bit squirrely, doesn't it? I remember that happening in Hawaii when they started changing the bases to joint bases. Who owned the base? Who works for who? What traditions do you keep? Which ones don't you? Which boss do you work for, or which one don't you? That gets pretty interesting and kind of complex, doesn't it?

Bruce Tucker Smith:

It does. But I would say that the answer becomes and pardon the lawyer semantics here in the joint environment, in the purple environment, then your client is the mission.

Al Palmer:

Which is the joint service part of that. Yes, it is the mission, which is the joint service part of that, yeah, it's the mission, it's the mission.

Al Palmer:

So as long as you're true to that, then you're still doing the job you need to do, absolutely so. You've written very intensely about some of the failures of the leadership in the JAG Corps when it comes to DEI and what's been happening within the Pentagon, and some of that is the same problem that the rest of the service is not just the JAG's face, but it's standing up and doing the right thing, being the good leader, making sure that you do things that are both lawful as well as make sense from the service perspective. Can you talk a little bit about that?

Bruce Tucker Smith:

Yeah, absolutely.

Bruce Tucker Smith:

And of course, the touchstone for this conversation is recently the Secretary of Defense, Mr Hegseth, fired the Judge Advocate General of the Army and the Judge Advocate General of the Air Force, and there's been a lot of post-mortem hand-wringing, mostly from the political left, you know, wailing that this is the end of democracy, they've removed the guardrails and that the independent arbiters of the law have now been stripped away, leaving the military services to be rogue entities not constrained by the law. And that's just hot air. The fundamental notion is this An attorney can and should be fired by his client if he no longer enjoys the confidence of the client. It happens every day in the civilian world. Military attorneys are not necessarily paragons of virtue, intellect reasoning. They're not. They're human beings just like anybody else who practices law. If you're not taking care of your client's needs and the mission, you get fired.

Bruce Tucker Smith:

And I'm pretty certain that's why Secretary of HEGSF fired the TJAGs of the Army and the Air Force. And there were many reasons for that, but I think the best example, al, is the now infamous 9 August 22 memorandum for the entire Air Force and Space Force signed by then Chief of Staff of the Air Force, general Brown, and then Chief of Staff of the Space Operations, general Raymond. And this was, I think so many people have seen this memorandum, but it basically calls for the mandatory implementation of racial quotas.

Bruce Tucker Smith:

In there it is of military members, which is absolutely against the law. You cannot. You cannot discriminate against people or for people based on their skin color, and that's exactly what this did. It's incomprehensible to me that an attorney with any experience let this document ever see light of day Now. I'd like to hope, and I'd like to believe that there were attorneys who saw this and jumped up on their client's desk and yelled and screamed until they were purple in the face, regardless of rank. Sometimes you have to do that as an attorney, to tell them that this is wrong. I believe if there ever was a moment where you pull out your saber and fall on it, this was one of those moments.

Bruce Tucker Smith:

But more than the legal aspect, and you have that line right there. Who on earth, wearing a military uniform, allowed this language to go out, talking about leveraging diversity to enhance the Air and Space Forces' ability to deter and, if necessary, deny our nation's competitors, who wrote that Our competitors.

Al Palmer:

That is phenomenal, yes.

Bruce Tucker Smith:

North Korea, China, large portions of the Middle East, Iran. They're not our competitors, they are our enemies. And what do we mean to deny them? We want to beat them. What do we need to deny them? We want to beat them.

Al Palmer:

Make sure they don't resurface.

Bruce Tucker Smith:

Yeah, and so you know the piece of paper that I have on my wall and all attorneys do. It says attorney and counselor at law. Well, the attorney part means stick your nose in the books and know what the law says. The counselor part is sometimes you've got to be the voice of reason in a group full of people hellbent on running off the edge of a cliff. And again I have to ask where were the attorneys who had the responsibility to make sure that that memorandum? You've just seen that that thing was never written and never saw the light of day. Where were they?

Al Palmer:

At the very least, at the very least the question, the basis for asserting that that was something that was going to increase the lethality of the force. How do you, how do you, justify that?

Bruce Tucker Smith:

Yeah, I mean again consistent with the mission, which is to fight and win our nation's wars, and anything that isn't that is wrong. This completely takes, if you're an attorney, takes your service away from the notion of meritocracy, which is what we absolutely must have to be an effective fighting force and let me get a little lawyer-ish on you here. Force, and let me get a little lawyerish on you here. The American Bar Association has what it calls its model rules of professional responsibility, and every state in the union has its rules of ethics, but most of them are patterned on what the ABA rules say, and I point to rule of professional responsibility 2.1, which, in representing a client, a lawyer, shall exercise independent professional judgment and render candid advice.

Al Palmer:

That's wise.

Bruce Tucker Smith:

That's the law. That is the rule that governs every attorney who has a license Rendering independent professional judgment. That means sometimes you've got to swing against the tide, sometimes you've got to be the one voice in the room calling for sanity when everybody else wants to jump off the cliff. There's another rule, which is rule one, point three, which kind of talks about how much horsepower you have to put behind that independent responsibility, and it says that a lawyer shall act with reasonable diligence in representing the client.

Bruce Tucker Smith:

Diligence meaning, of course, steady, earnest and energetic effort. Well, I don't see any steady, energetic, independent effort in that document we just put up and everything that we have seen in the DEI world as it infected the military. It smacks of a complete abrogation of professional responsibility and military duty by some I hope not all by some uniformed attorneys, and that's probably what resulted in Secretary Hegseth, you know, deciding he no longer had trust and confidence in his lawyers, and so he was absolutely right to do what he did, just as any civilian attorney will get fired by their client if the client doesn't have trust in what they're doing will get fired by their client if the client doesn't have trust in what they're doing.

Al Palmer:

Yeah, and that is the compact between the commander and the attorney the JAG in this case to do the things that need to be done to enforce the mission of the military. But these folks didn't give up, did they? Just by being exposed and caught in that, didn't they kind of go on to justify what they did?

Bruce Tucker Smith:

Well, they're zealots and they're not going to be deterred by the law or logic or reason. They're zealots, they have a worldview. I think some of them are truly Marxist in their orientation. I think some of them are truly Marxist in their orientation. I think some of them are well-meaning but foolish, who just again don't understand. And these are people who have birds and stars on their uniforms. They still don't get it. They're far more interested in currying favor with people who can ensure their longevity. They're people who make sure their career comes first. And I, you know those of us who come from military backgrounds. It's, it is, it is maddening beyond definition.

Bruce Tucker Smith:

Uh, there, no, there have always been careerists in the military yes um, if you go back to the British duo of Gilbert and Sullivan, their very famous operetta of HMS Pinafore, there's a very famous song in there that talks just about this phenomenon of people with no political or with no military background acumen interest who nevertheless became high ranking in the british navy.

Bruce Tucker Smith:

And of course all that gilbert and sullivan wrote about was all social critique. It was sort of the internet of its day. But there's a great line in one of the songs which says stick close to your desks and never go to sea and you'll all end up admirals in the queen's navy. And you'll all end up admirals in the Queen's Navy. And that phenomenon exists to this very day. I can't tell you the numbers of people I knew on active duty over their career and nothing else. They didn't know a flight line from a clothesline, but they knew how to curry favor with the right people, get promoted.

Al Palmer:

And if that meant?

Bruce Tucker Smith:

singing the song of the day to keep the political people happy. So be it.

Al Palmer:

Yeah, I guess that's the result of a large bureaucracy. People do get to hide out in it.

Al Palmer:

Yeah Well, then you know, it was that way even in some of the active forces, when people got promoted and then went off to the desk jobs too. And that's, I think, one of the root problems I see today is you've got a lot of very senior leaders, three and four stars, and then SES folks and others in the civilian side who have no direct relationship to the military, and they're like you say. They're the ones that get abstract and focused on something entirely different, and I don't think it's any different.

Bruce Tucker Smith:

Well, and it's an important point to be made, which is we absolutely adhere to the notion of civilian control of the military. Absolutely the truth, and it must be. That way we don't have military juntas.

Al Palmer:

And yes, you must follow the guidance and the instruction.

Bruce Tucker Smith:

So long as you're wearing the uniform, you got to follow the guidance and instruction of the commander in chief. Okay, I get it, but there is a matter of honor and integrity which says that sometimes you must pull out that saber and fall on it to make a greater point, you know? Yes, if I were in uniform when President Biden was my commander in chief, I would have saluted smartly and said yes, sir, until I could no longer do it, at which time my option was to leave and then once I was.

Bruce Tucker Smith:

I didn't speak my mind, I just I've got to wonder where were the careerists in the various service jags who saw this disaster being worked on the various armed services. Where were they? Where was their saber falling moment?

Al Palmer:

Yeah, the two generals that you mentioned being atop of the class, if you will, in their respective services, must have known that there was an issue there. I mean, they must have been watching Milley testifying in Congress about DEI, and all that at the same time, and yet they didn't say anything.

Bruce Tucker Smith:

No, because they had lovely three-star jobs and they were making a nice paycheck and, you know, they got a nice parking spot at the Pentagon.

Al Palmer:

So and maybe a follow-on board job someplace when they return. Absolutely.

Bruce Tucker Smith:

Absolutely.

Al Palmer:

Or, and those I mean those are realities that I think we've had for some time. But you're right, the personal standard of loyalty beyond self has got to be there in our warfighters, but also the leadership too.

Bruce Tucker Smith:

Yeah, yeah. And when you raise your hand and you swear the oath you are swearing to defend with your very life. Not the flag, not baseball, not apple pie, not your mom, not the girl next door, it's the Constitution. That's the thing we say we'll die for. And we, the professional military, our job, is to be the guardians of that document. And when something happens that begins to rot the core values of that profession, that service, that duty, you've got a choice to make as an American. You can either participate in it by acquiescing, or you stand up and be counted, and frequently you're going to make yourself very unpopular by saying that the emperor is wearing no clothes. But again, where were the lawyers, the people who know better, who are in a position in every element of the command structure, all the way down from the basic unit of whatever armed service, all the way to the Pentagon and the Joint Chiefs level? There are lawyers there, people who should be wielding influence and good judgment on behalf of their client, the mission and the service. And I didn't see it.

Al Palmer:

You know it's interesting the mission and the service, and I didn't see it. You know it's interesting. I remember when I was on the staff of the commander in chief of the Pacific Fleet years ago, the airlines were giving away free stuff when you were a frequent traveler. And one day the financial guys came to me and said I was a financial policy there at the time policy officer and they said look, what do we do? This stuff that the guys are getting, don't we, the government, own it Because we bought the ticket for them? Don't we, the government, have that? And isn't it wrong to be giving them something worth money when we don't allow them to have lunch with a contractor and that kind of stuff?

Al Palmer:

So I went over to the JAG office and I thought this would be kind of an easy one, right? And I said so, colonel, what do we do about this? And he says well, you know, we got to go out and seize all this stuff and we got to make sure that it's accounted for and then we can figure out how much it's worth. And that happens. Then we'll go out and charge them for on their travel voucher. And I said wait a minute. You know you're setting something off here that's going to create a real problem for us, and they did they. They ended up with warehouses full of umbrellas, golf balls and teas and stuff like that. Uh, when they could have just said, look, write it off, it's insignificant, just get rid of it.

Bruce Tucker Smith:

Yeah that when they could have just said look, write it off, it's insignificant, just get rid of it.

Al Palmer:

That's what they ended up doing early on. What I was what I was impressed with was how much time Bruce took to do it. It should have been a very simple decision on the part of the commander anyway, but but he was not getting good advice from the attorneys, who were being too literal in what they're looking at.

Bruce Tucker Smith:

Yeah, and again, it is one of the insidious natures. You know, a good lawyer, frankly, is the lawyer, she or he who will jump up on the commander's desk, regardless of rank, and, figuratively speaking, slap him around a little bit and say look. I I know you don't rank me by four grades, but I'm your lawyer and I'm here to tell you, I'm here to protect you. Damn it, let me take care of you.

Bruce Tucker Smith:

Uh, even though that's not a popular thing to do and say, and um oftentimes you get rank intimidation, uh like, and especially you get young jags who don't want to make the Jags above them angry. So it's better not to do or say anything, and go along to get along right. Well, I'm to get along, and you what you? Then you defeat the notion of growing leadership in the armed services, which you, what you create is followership.

Al Palmer:

So so has there been an effort to change that attitude within the JAGs.

Bruce Tucker Smith:

Well, not to my knowledge, not since I was first commissioned back in 1984. No, it's human nature Take care of your career first, unfortunately, is the pole star for many people not all, I will tell you. I had the honor of serving with some of the very best military officers, best attorneys. I ever had the honor of serving with great people who completely understood their jobs and mission. But there are also the careerists who live their entire lives in an effort not to offend anybody. They just keep their shoes shine and a smile on their face and they hope they will. You know, stick close to their desks, never go to sea and make animal and unfortunately it happens too much.

Bruce Tucker Smith:

And when you get a policy like this DEI thing come down the line, they're just not equipped by way of character or experience to stand up and do what the little voice in the back of their head is telling them probably ought to be done, but they just don't have the character to do it.

Al Palmer:

Well, especially if they were brought up in the environment in college, going through law school, socialism, marxism being related to that.

Bruce Tucker Smith:

Yeah, and never fully understanding to that. Yeah, and never fully understanding exactly who you are and what it means when you put on that uniform. I don't need to explain to this audience. It is a profession, it is a calling, it is a subculture in America with our own set of values, duty, honor, country.

Al Palmer:

Well, and unfortunately, they wanted to take that out of the culture all of a sudden, too. Maybe that's that's coming back. That's one of the things we're still fighting for, but when it, when it comes to being able to stand up and do the right things, you know, you still have to have that notion inside that you're right and you're doing the things that have to be done in spite of the fact that you know someone's telling're doing the things that have to be done in spite of the fact that you know someone's telling us to do something that's not popular. So how do you train people to do that?

Al Palmer:

wow how do you train?

Bruce Tucker Smith:

people. How do you train people to have character? You can teach it to your blue in the and maybe some of it sinks in, but I think it's individual. It comes with how you're raised, who your family was, what your values are. It calls for, frankly, a much more rigorous screening at the beginning of who comes into the service as a judge, advocate. And I'll tell you, you know we're, we don't. We don't fly the airplanes. We are not the pointy end of the sword, we're not commanding the rifle companies or the battalions. But the impact that the JAGs have on the service is, I might add, grossly disproportional to the numbers of people who actually are JAGs. Lawyers have a huge impact on the military, just as we do throughout American society, can't?

Al Palmer:

help it.

Bruce Tucker Smith:

And that means, you know, that means we've got to do a much better job of finding the right people and not the ideologues.

Bruce Tucker Smith:

As I've written previously, one of the insidious aspects of all this is you get people in command authority in the JAG Corps who have the stars or the birds on their uniform. They're in the position to pick the new people coming into the JAG Corps. They are the people in a position to make sure the right people get the right jobs, get the right assignments, get the right schools, get the right endorsements, and so it becomes a self-fulfilling organization. And I'm afraid that a little bit of that has happened, that the people of a certain ideology are now so deeply entrenched in the various JAG Corps departments that it's going to take a big effort to weed those people out, because I think what they believe and what they do is destructive. This is not a difference of political opinion. I think it's destructive. It's antithetical to the notions of duty, honor, country, service before self, um. It's antithetical to meritocracy, um, and something drastic is going to have to be done so it's kind of like takes two to tango, though, doesn't it?

Al Palmer:

you've got the attorneys who should be standing up and doing the right things, as we described, but it's also a role of the commander not to accept stuff that they're not sure of themselves, and they can stand up as well at the same time, right? So yeah, so it's that play against the, the command structure, as well as the legal advice yeah, and, and, and it is a command responsibility and sometimes you.

Bruce Tucker Smith:

It's a two-way street. The commanders need to encourage their attorneys to show some fortitude. You know you're in the fighter pilot business right, and there are rules that you're supposed to follow. You're not supposed to go flying through the canyon, you're not supposed to fly under high power lines, all those kinds of things.

Al Palmer:

That's frowning on us.

Bruce Tucker Smith:

And yet I don't want an Air Force that doesn't have those guys in it. And so part of being an attorney, on the one hand, you must maintain military decorum and the rank structure and do regard and respect for your superior officers. However, doctors and lawyers are unique because it's your professional knowledge. Sometimes you've got to shut the door and it doesn't make any difference what your rank is. You've got to make sure your client gets it right.

Bruce Tucker Smith:

I liken it to the fighter pilot business, as you know better than I. Down on the ground, you know the captain salutes the guy wearing stars, but in the briefing room and once you step out to the jet, it's the guy who can fly and fight and lead. He's the guy that's leading the element. I have been in some post-flight debriefs where I've seen captains and majors chew out 06s because they screwed up, you know, in an engagement. Well, sometimes I mean rank is very important. I'm not going to say it isn't, but sometimes the person who has the professional knowledge and the skill has got to assert their will for the greater good of the client and the mission. Some of the best relationships.

Al Palmer:

And we do work hard at training people that way or at least we used to so that they'd have that fortitude, they'd have the sense of being confident and right in what they did, and when they weren't right they'd admit it and say you know, all right, we screwed up, we're not going to do that again.

Bruce Tucker Smith:

Yeah, If you're going to jump up on the O6's desk and yell and saying you know, all right, we screwed up, we're not going to do that again. Yeah, if you're going to jump up on the 06's desk and yell and scream, I'm all for it. But you damn well better be right.

Al Palmer:

Exactly I mean you've got to be right. So that's where we depend on that wisdom of the laws and the lawyers in the service to be able to tell us those things and to adequately take care of the problem. And yeah, it's risky to careers and it's risky to commanders too if they make the wrong decision. But again, getting the best information and best guidance you can probably is the best you can do with it.

Bruce Tucker Smith:

Well, you know. And let's talk about risk. Well, you know, let's talk about risk. You have flown with people who gave, as Lincoln said, the last full measure of devotion.

Al Palmer:

Doing a hard thing.

Bruce Tucker Smith:

Well, in Jag world, you may get a few paper cuts and you may lose your job, but you're not going to die. So my challenge is you know what? Life is hard and sometimes you've got to make hard personal choices. What's really important to you, your career? Well, certainly you've got to pay the mortgage. I get that, but it's the mission, it's the constitution, it's the maintenance of our profession so that we can do our jobs. And if that means you've got to take a few heat rounds, it might hurt your career. Well, people have given a hell of a lot more than that in the defense of the nation.

Al Palmer:

Well, and that's an important aspect of that, because if you don't do it that way, people get hurt and die, and it's that simple. And you know we all try to avoid it and we do a pretty good job with it most of the time. But I've seen it go the other way, and particularly with the DEI. The Navy had a very tragic example of that when they tried to push a female pilot through training and she wasn't able to do the work on the carrier and she ended up hitting the round down, killing herself and the guy she was flying with, because they pushed out too early. They wanted to get an example of a female that was flying at sea and they were trying to beat the air force, I think actually. But but those are terrible displays of judgment. When those people knew that she wasn't ready, they knew that it was not going to work, they should have gone back and retrained her and and maybe solved the problem. But it didn't happen that way. And maybe solve the problem.

Al Palmer:

But it didn't happen that way, and I think we still find some examples. I just offer that as one case when that happens, because you're right. You don't just put them back into a training cycle in a college class on ethics and law, you put them in a cockpit, or you put them in a cockpit, or you put them in a tank, or you put them in an armored vehicle someplace exposed to real danger.

Bruce Tucker Smith:

Yeah, and look in my own case. I soloed when I was 12 years old. There's no doubt in my mind I would have been a fine military pilot, but the military didn't let me be a pilot because I didn't meet the standards. And the fact that my feelings were hurt about it is just too damn bad. You can't make decisions which need to be made on objectively sound criteria meritocracy you cannot change those because somebody's feelings are going to get hurt. You know this is the military. We have a hard job. You know I can whine all I want to about not being a pilot, but the simple fact is I was inferior, I couldn't make the grade, I didn't have the eyes Period, End of discussion.

Al Palmer:

And it would have been wrong to modify a cockpit or a helmet or whatever just so I could get to play that reminds me of one of my commanders in vietnam, a really great guy, big bear of a guy, and when he had a problem he put his arm around your shoulder and he'd say he'd say al, I hear what you're saying, but that sounds like a personal problem to me. Go work it out at home.

Bruce Tucker Smith:

Yeah, yeah.

Al Palmer:

And there you go. You've got to stick to what the standards are and you've got to be exceptional and you've got to be not perfect, but you've got to be really good at what you do.

Bruce Tucker Smith:

I promise you, the bad guys are sending their very best at us.

Al Palmer:

Yes, and we do have to be ready for that in the future. So that gets me to where we go from here. You know we've got a partial handle on restoring meritocracy, getting rid of the caustic effects of DEI and Marxism. Maybe it could come back to us again. But what do we do now to inspire a new generation or two of people like you and me, who grew up in the military around it, who really value that Only a small percentage of the population actually does serve? Uh, there's a huge pool of people out there that we used to be able to rely on who haven't shown up recently. Now, all of a sudden, they are coming back, which I think is great news.

Al Palmer:

Yeah, uh, but is there education involved in this somewhere it's.

Bruce Tucker Smith:

it's a multi-faceted approach, and I'll talk about the JAG Corps. Frankly, I think we need to get rid of some of not people who come with the leftist baggage, who see the military as a social petri dish. We want to affirmatively, through a rigorous process, find the right people who are suitable for this profession, the profession of arms, as lawyers. Next, you have got to and I tip my hat to the Marine Corps their fundamental orientation of their attorneys is that they are Marines first and lawyers second. We need to get completely, at least in the Air Force, away from the notion of you're just a lawyer in a uniform. No, you need to get completely, at least in the Air Force, away from the notion of you're just a lawyer in a uniform. No, you need to be a military officer whose duty it is to be that military officer. And that includes getting rid of the core concept of the JAG that fitness reports be written by line commanders and not lawyers, fitness reports be written by line commanders and not lawyers. The promotion boards be populated not by lawyers but by line officers, so that you compete for promotion with everybody else who's a line officer. Get out of this.

Bruce Tucker Smith:

I'll tell you, interestingly enough, the very first Air Force Judge, advocate General General Harmon resisted strongly the idea that we'd ever have a separate JAG Corps in the Air Force. He warned against the fact that it would become an insular group of lawyers looking out for lawyers. He was so right and we got away from that. The Marines are very wise about this and they don't have a separate JAG Corps in the Marine Corps, so yeah.

Al Palmer:

And that's what struck me as being really, you know, a good solution there. You know you're still competing as a line officer, which gets you more connected with what the mission is and responsibility for being a part of the solution, rather than distant.

Bruce Tucker Smith:

And go back to. I could spend hours talking about this, but go back to the fundamental mission of being a JAG, which is assisting the commander in the maintenance and creation maintenance of military justice. We have too many generations of young attorneys who are not going to court marshals because their bosses don't like going to court. They like the easier administrative route because, again, it's easier for them, they make their metrics. They don't like going to court, they like the easier administrative route because, again, it's easier for them, they make their metrics, they don't upset anybody and they just slide through the system. We need to get back in the courtroom and get our JAG combat skills honed up. I think JAGs should have another military occupational skill, whether it be air base ground defense, whether it be whatever that a JAG can do.

Bruce Tucker Smith:

they need to be doing it. A because they are officers in the military, like the Marines. You need to have another combat skill, but, more importantly, it connects you with the people whom you're there to take care of as an attorney, If you don't know what your client does every day if I were a wing commander Navy Air Force, I would insist that my jags go up in our aircraft at least once a quarter, get up there and be doing the mission.

Bruce Tucker Smith:

You know, not this insular group of law school graduates who are wearing polyester. No, you need to become a military officer so that, and then I would look to recruit and retain those people who understand that this is a calling. Who?

Al Palmer:

have the fortitude to stand up to their bosses and tell them when they're doing the wrong things and be willing to suffer the personal consequences if you know they disagree or they get it wrong. I guess the challenge for folks like us and stars is how do we go about affecting that change? You know, I think we all agree what change probably is, but how do you actually make it happen?

Bruce Tucker Smith:

That's going to be a tough nut to crack. Perhaps you got to get the right people wearing stars on their shirts. You've got to get some legislative picks, For instance. For instance, I was unaware of this until Pete Hegseth was nominated to be the SecDF. Did you know that in the past three years the statutory job description of the Secretary of Defense by federal statute created by Congress, made the Secretary of Defense the chief DEI officer of the Department of Defense? It affirmatively gave the Secretary of Defense an obligation to implement DEI in the military.

Al Palmer:

Well that has got to be fixed.

Bruce Tucker Smith:

That has got to come out in the next Defense Appropriations Act. That's got to come out. Take that statutory language away.

Al Palmer:

And that's taken various other forms over time too, you know with shades of gray. And are they really this, are they that and that's? I think our concern is that that may sneak back in, even though the president and the secretary of defense and their executive orders have defined pretty well that you can't rename it, you can't regenerate it, it's gone. But you know, we know, that sometimes those things go undercover somewhere.

Bruce Tucker Smith:

Well, we're fighting against a highly determined enemy, the Marxist element. You know, we're old enough to remember Nikita Khrushchev Public's saying they would bury us. Yeah pounding a shoe on a desk.

Bruce Tucker Smith:

Yeah, that's the kind of thing that the younger folks roll their eyes at, and I get you know. Okay, baby boomer, you know you get this condescending response. But the problem is the enemy has not changed his goal and he hasn't changed his tactics. And we Americans too often are just fat, dumb and intentionally naive to all of this and they don't understand what's happening to us.

Al Palmer:

But people like us, have to fight back.

Al Palmer:

Well, and I think we are, and I think it is becoming effective, at least to this point. People have been listening to some of the voices about exactly what you're talking about Getting rid of that in religion and culture and the military and government, and getting rid of overreaching big government that has endless resources for whatever else people want to do. That's one of the steps. Steps, too, isn't it? Getting rid of the putting your nose up to the trough and sucking all the money out of the society. But there's another issue too that's come up I wanted to mention to you, and I know you're aware of it Outside of the military, uh, justice system, uh, within justice in the country, now, there's these efforts to put blocks in the way of getting the government's business done, uh, and you know radical judges show up, uh, and you've got legislators who want to play like their judges sometimes, and so so how, how do we get a handle on that? Because these things are just hamstringing the ability of the country to operate, and it's not just the military, it's all throughout government.

Bruce Tucker Smith:

It is. Well, let's start from the Constitution. We do believe in three separate, co-equal branches of government, what we call checks and balances. And yes, the United States Supreme Court is the co-equal partner with the executive branch and the legislative branch. That is true, yep. Our Constitution does not provide for the inferior federal courts. It doesn't create the subservient courts of appeal or the federal district courts. So you have a federal district court judge in Washington. One in particular is just obviously reading off the script and doing the bidding of the Democrat Party. There needs to be a legislative fix immediately limiting the power of a federal district court judge to only that geographic area contemplated by that federal district. It is insane and I don't know how we got here the notion that a federal district court judge in Seattle could stop a national program that has global implication. So the answer is that the Congress of the United States, hopefully tomorrow, will pass legislation limiting the authority of the federal district court judges to only that geographic region where that court sits. That would be fix number one.

Al Palmer:

Setting jurisdiction Right, so, but you know that's a partly political process in Congress. Can the Department of Justice do anything about that?

Bruce Tucker Smith:

No, no, because you know, until see, Congress by law creates and funds the various subordinate judicial functions, not the Supreme Court, but below the Supreme Court. So it is Congress's duty, its check and its balance on the judicial. It would be to that the Justice Department fits within the executive branch, and so the Attorney General, the nation's chief prosecutor. She can't just say, well, I'm not going to follow what a federal district court judge says, can't do that, she doesn't have that authority. So what has to happen is Congress has got to do it.

Al Palmer:

Yeah, I see that. Yeah, well, that's going to be a tall order here.

Bruce Tucker Smith:

Or you know in some of these things that and I'm sure that the Department of Justice has got some great lawyers they are probably posturing these decisions you're talking about for appeal up to the DC Circuit and fast track it to the US Supreme Court. Talking about for appeal up to the DC Circuit and fast track it to the US Supreme Court. And essentially, to my knowledge, the US Supreme Court has never spoken to this issue about whether or not their inferior federal district courts can issue rulings of national implication. So the other fix if the legislative branch doesn't fix it, certainly the Attorney General Bondi can certainly make sure her division is getting those cases on appeal and up to the Supreme Court, you know, as quick as possible. That would be the other way.

Al Palmer:

Yeah, that's what I was thinking of kind of there, I think, because DOJ has got some internal regulations about how jurisdictions work, I guess across the country, right?

Bruce Tucker Smith:

And the DOJ is a very detailed regulated organization. They're very highly ethical people. In the main, they're great lawyers. They hold themselves to extraordinarily tight standards and always have been. Generally speaking, most of the DOJ attorneys are some of the very finest in the world and, interesting, a lot of Assistant DOJ attorneys are also JAG reservists. There's a large community.

Al Palmer:

I was going to say it may very well be, yeah, that's good news, yep, Well, I'm hopeful that that situation will get better in a hurry. And, like you say, pete Hegseth is not putting up with a lot of garbage. They're off and running. I think they've got a good handle on what they're doing.

Bruce Tucker Smith:

I think they're going to win and I can't give you the citation off the top of my head, but there's a Supreme Court case where the justices said famous quote judges were not given the task of running the army. And ultimately you know these challenges to the transgender issue in the military which was stopped by the federal district court judge in Washington that's not going to last for 30 seconds once it gets to the Supreme Court, because the Supreme Court is going to say you are invading the province of the commander in chief, the executive branch. You're a judge and, frankly, we're Supreme Court justices and we don't get to touch that duty either. So I'm fairly certain in success. You know, eventual, it just takes time to get there.

Al Palmer:

You know eventual, it just takes time to get there. Well, so hopefully, what your vision of this is, it will come true, they will have a handle on this and it'll slowly get back to what we used to call normal in the past. But this has been a huge bump in the road, with fighting DEI.

Bruce Tucker Smith:

Well it is. And, frankly, there are sleeper cells of DEI proponents who are in uniform, and we got to find them and invite them to become civilians. Because, look, al, you and I've seen it in our lifetimes. Yes, we have a commander in chief now who is favorably disposed to the way we think. But politics is a fickle and funny game. In four years you might have a very leftist president come back in and change the game again. So the only bulwark against that is to get people in uniform now. Get the youngsters in who understand what their mission is, protect the constitution from politics. And you know the thing is, the things that we're talking about here are not political. This is not political.

Al Palmer:

Yeah, it's American right.

Bruce Tucker Smith:

It absolutely is. I'm not advocating a political stance here. I'm just saying that, at least in terms of my career field, the Jags we dropped the ball, and I would be saying the same thing if there were some military operation that clearly violated, for instance, the Geneva Conventions. We went and started bombing churches and civilians intentionally, and if some Jag didn't stand up to that, I'd be here making the same noise. I'd ask where the hell were the lawyers?

Al Palmer:

Yeah, exactly.

Bruce Tucker Smith:

This is not a political statement, but we need to get people of character. We need to find them, we need to recruit them, we need to culture them who put the country ahead of their careers. Those are the people we have to find and make military service attractive to.

Al Palmer:

I love that idea of character and integrity and putting something bigger than yourself in front. I love that. That's just great. Well, all we have to do now is go to work and make sure that happens. Amen. So what's next for you? Are you going to write some more about this, or where does that go for Bruce Smith? I?

Bruce Tucker Smith:

you know I'm a standing volunteer. I will do what STARS or anybody asked me to do, because I have enough gray hair. I've got a little bit of benefit of wisdom. Now I want to help any way I can. I've been working extensively with Mike Rose at STARS.

Al Palmer:

Yes.

Bruce Tucker Smith:

Mike is a great guy, several other attorneys Gordy Hammack, lou Michaels, some people who all who served, who are fine attorneys now in the civilian world, who are giving every bit of effort they can to work with them, supporting General Bishop, and you know, just some of the great people in STARS. Any way we can be of help, we're going to do it.

Al Palmer:

Well, as I'm so grateful to you for jumping into the fray with us here, and your writings are extraordinary and I'd encourage our viewers to go check that out on our website extraordinary, and I'd encourage our viewers to go check that out on our website, starsus. We have a great uh inventory there of your writings and others as well uh, and this one is a particular good one the question of paternity. That's what we're talking about today, uh, but there's more uh, and the viewers can watch our own podcasts. We got a whole library of podcasts there now that they can go back and see some other views of this and how that's affected, things like the Constitution.

Al Palmer:

There are partners in this, people like the Calvert Task Group and the MacArthur Society, who have written extensively about some of this too of this too. So, bruce, thank you so much for being with us and talking about your terrific experience with the Air Force and DHS and keeping our country on the right course here. As we fight some of the caustic elements that may still be around. Our goal is still to make the military work, to make our people proud of our country and to make sure our warfighters have what they need, and the law is a big part of that, as we both know.

Bruce Tucker Smith:

Yep.

Al Palmer:

Well, I'm honored to be here.

Bruce Tucker Smith:

This is an amazing experience with you. Thank you for this opportunity to share my thoughts, for whatever they're worth. You know God bless you and the folks who make STARS work.

Al Palmer:

And Bruce, thank you for your family offering you up to help us out throughout the years.

Bruce Tucker Smith:

Well as I said my wife, both of her parents were naval officers. My father was a naval officer aviator. I don't think there was any chance I wasn't going to be doing this with you all.

Al Palmer:

Well, that's great. Thanks so much, and, for our viewers, thank you for tuning in to another episode of Stars and Stripes. We'll be back with you next week with another great episode. Until then, adios.