Air Force Lawyers Issued “Weinstein Guidance” in 2010
In its annual “The Military Commander and the Law,” the Air Force Judge Advocate General‘s School publishes guidance for commanders to help them understand some legal complexities related to their jobs.
For example, the nearly 700-page text contains explanations on issuing Articles 15, how to deal with FOIA, personnel issues, and sections on virtually every issue in which the law may impact a commander’s actions.
More interesting, however, was the new addition in 2010 of what could be best described as “Weinstein Guidance.”
The manual gives commanders new guidance on how to handle advocacy lawyers who call them directly, demand adherence to their interpretation of the law, and threaten negative publicity or lawsuits. The striking specificity in the manual is very similar — indeed, identical — to the Weinstein Method. Noting it is “based on experience,” the manual recommends avoiding appearances that a commander agrees with
Weinstein, er, the caller, recommends against taking unilateral action based on only his threats, and advises seeking out guidance from the local JAG and chaplain before reacting. From the text:
Preliminary Caveat: Advocacy From Outsiders Might Sound Authoritative but It’s Still Just Advocacy
– Outside advocates (including lawyers) for a particular resolution of a religious issue of which they have become aware might call you directly, advising you that the law “requires” you to adopt their position. If this happens, here are some suggestions based on experience:
— Avoid sounding sympathetic or agreeable to their pronouncements
— Threats of adverse publicity or litigation are to be expected; just tell the caller that you’ll let your PA and/or JAG know
— Don’t take unilateral action (i.e., without first consulting JA and/or HC) to do what the caller is requesting/demanding!
— Inform the caller that you need to discuss the matter with the people you get your advice from, i.e., your SJA (and maybe staff chaplain)
— If a follow-up response is required, it might be preferable to disengage yourself and ask your Vice, exec, SJA, HC, or PA to do it
As if to prove the narrow scope upon which this guidance is based, it is located only within the section on religious freedom.
Religious freedom in the US military should not be restricted based on one man’s personal agenda. However, it is apparent some commanders may have been unprepared to handle Weinstein’s onslaught when he called. Contrary to popular belief, military commanders do not generally field such calls from the general public; in fact, their personal contact information is often unavailable to the general public — unless an ally within the military provides it. (Weinstein’s unusually unfettered access to military leadership — including having personal access to general officers — has resulted in one group’s call for a Congressional investigation on the matter.)
For their part, military lawyers provide guidance; they do not set policy. As has been said before, they’re also not always right. In this case, however, their advice is generic and, in truth, applicable to any vociferous advocate who might call their office. Don’t imply a position, one way or the other; don’t fret about threats; don’t take unilateral action; discuss the issue with others. It’s the same advice a public affairs officer (the people who generally take those kinds of calls) would likely give.
Weinstein may have made a bit of hay over the past few years by cold-calling senior officers and threatening to spread their name across MSNBC if they didn’t accede to his demands. This guidance may have marked a beginning to the end of that success, though it’s difficult to say what impact this guidance may have had. There are some examples in which it may not have factored, and there are others in which its philosophy, at least, was closely followed.
The US military generally does an admirable job of protecting the religious freedom of its troops, even against the attacks of Michael Weinstein. It seems at some level the military (the Air Force, in this case) has wised up to his methodology and is at least trying to prepare its commanders to deal with it. This may yet be another example in which Weinstein begins to lose one of his favored tools in his attacks on the US military.