On Thursday, February 2, 2017, Goodwin Weber PLLC attorney David P. Weber, will testify before the Maryland Senate in opposition to Senate Bill 13.  SB 13, which was proposed by the administration of Governor Larry Hogan, proposes to eviscerate the due process that has been afforded to soldiers and officers within the Maryland Military Department since the founding of our nation, and even before our founding, as a colony.  

While the administration claims that the proposal was brought to the Maryland legislature as a minor housekeeping matter, SB 13 is anything but minor.  Indeed, SB 13 is a legislative attempt of the administration to silence Maryland military lawyers and other professionals from telling state leadership “no” when the command needs to be told that an action is illegal or unethical.  This is a concern playing out not only in the Maryland statehouse, but our nation as a whole.    

SB 13 also attempts to prevent professionals, like military lawyers, from zealously representing their clients – often accused soldiers or airman – when they are charged with wrongdoing, potentially even heinous misconduct.    But military lawyers, like their civilian counterparts, have been called to defend the accused since the founding of our nation, and even prior.   In order for the American justice system to function, the Sixth Amendment to the United States Constitution promises all Americans the right to counsel – even enlisted soldiers and airman.  

David’s written testimony, which will be delivered at 1pm in Annapolis, Maryland, is set forth fully below.  If you are a member of the armed forces, a veteran, a survivor, or a citizen who cares about doing the right thing, please read this testimony, and then contact your Maryland State Senator to voice opposition to SB 13.  

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Ladies and gentleman of the Maryland Senate, thank you for allowing me to testify today before your Committee on the proposed SB 13, which purports to provide minor housekeeping amendments to the Public Safety Article of the Maryland Code, but in reality, is a wholesale change to the provisions of military law and ethics which have governed the State of Maryland since at least 1917.

By way of introduction, my name is David P. Weber, and I am a faculty member of the University of Maryland, College Park, where I serve as the Academic Director of Fraud Management Programs.  I am an attorney licensed in Maryland, the District of Columbia, and New York, a Certified Fraud Examiner, and a registered Private Investigator in the Commonwealth of Virginia.  I am a member of the Maryland State Guard Association and the State Guard Association of the United States. 

I presently teach ethics and professionalism, and fraud management in the Robert H. Smith School’s top-ten ranked Executive MBA and Online MBA programs, as well as in Smith’s specialty masters and undergraduate programs.  I also recently helped develop Maryland’s new graduate certificate program in Risk, Compliance and the Law.  This Spring 2017 Semester, I am one of the two faculty members teaching ethics and professionalism at the Smith School.  Importantly, SB 13 profoundly impacts professional ethics within the State of Maryland, and as such, warrants your legislative oversight.  For this reason, there are a number of Maryland ethics students here today (some of whom are themselves military veterans) to support my testimony in opposition to SB 13.  I hope you can appreciate that it is not an ordinary event to have undergraduate students in any great number at a legislative hearing such as this. 

Prior to teaching at the Smith School, I concluded my federal career as the Assistant Inspector General for Investigations at the United States Securities and Exchange Commission, where I served as the SEC’s Chief Investigator.  I therefore know all about investigating and bringing unpopular concerns forward, having been the whistleblower to report misconduct in the Bernard L. Madoff investigation to members of the House of Representatives and the United States Senate.  To be clear, in the Madoff investigation, I was unlawfully terminated for reporting misconduct by government officials, before ultimately being reinstated to my position and paid the third largest whistleblower protection award for a government employee in U.S. government history. 

Until March 2016, I served as a Judge Advocate and Lieutenant Colonel in the Maryland Defense Force, which was formerly known as the Maryland State Guard.  I was first commissioned as a military officer by the Honorable Martin O’Malley, Governor of Maryland. 

In March 2016, the entire Judge Advocate Corps of the Maryland Defense Force, comprised of over 40 attorneys and military officers, were honorably discharged or retired (depending on length of service).  The stated basis for our honorable discharge was a purported Reduction in Force (“RIF”), a federal concept, in which our orders indicated that legal services from state military lawyers were not needed.  This was then, and remains today, demonstrably false.

As an introduction to the Maryland Defense Force, it is important to understand that, for more than 100 years, since 1917, the Maryland State Guard or Maryland Defense Force has existed under the Maryland Public Safety Article.  Even before this time, since the founding of our colony, the Maryland State Guard has existed in one form or another. 

Indeed, it was the Maryland State Guard at the Battles of Bladensburg, North Point, and the reinforcement of Fort McHenry that likely preserved our nation in its current form. 

Quite literally, the opening line of our national anthem, the Star Spangled Banner is the most recognizable in all of American history.  Every school child in America knows the anthem was written as a poem after Francis Scott Key observed the British bombardment of Fort McHenry in Baltimore Harbor throughout the night of September 13, 1814. 

Understand that the citizen soldiers who manned the Fort, and marched tirelessly through the late summer day to reinforce it, were all members of what was then the Maryland State Guard.  The National Guard did not yet exist, and would not for many years.  It is in this context that, as our state legislature, you must consider the proposed SB 13. 

Put simply, SB 13 is intended to gut the Maryland Defense Force.  It is not a minor housekeeping measure, as it has been explained by the Military Department.  The bill proposes to completely eliminate due process for soldiers and officers within the Military Department, in violation of due process rights that were first established in the Fifth and Fourteenth Amendments to the United States Constitution.  These rights were written into the Constitution because the Crown had denied these rights to us as a people. 

It is my understanding that this bill was proposed by the current Adjutant General, after a dispute with Maryland Defense Force Judge Advocates, among other things, because we took positions in favor of the soldiers we represented as military lawyers.  Yet, it was our legal and ethical obligation, as Maryland licensed attorneys, to act zealously and represent our clients, even when our clients’ interests diverged with the command.  It is a military lawyer’s solemn obligation to tell our leaders “no” when they need to hear that something they propose is ill advised.  Our current political environment is a classic example of this situation on a national scale.    

Unfortunately, because we represented soldiers and airmen zealously, more than 40 members of the Judge Advocate Corps were honorably discharged.  The basis for the RIF was the purported lack of need for representation of soldiers and airmen, a ridiculous claim considering the acute legal needs of our enlisted soldiers and airmen throughout the armed forces, particularly in Maryland, where we have many military bases and veterans.  It was even more ridiculous, because, as you are aware, the services of Maryland Defense Force military lawyers are generally free (when they are not called to State Active Duty, and the Governor does not choose to compensate them).  National Guard attorneys, by comparison, must be paid federal or state tax dollars on an hourly basis to engage in legal representation.  The State saved millions of dollars in tax money by utilizing the services of Maryland Defense Force soldiers, as opposed to paying National Guard soldiers for the same work, and we can provide detailed summaries proving the monies saved.  It would be poor fiscal stewardship on this basis alone to approve SB 13.  

Even worse, tax expenditures aside, armed forces members are not being represented adequately in Maryland by the National Guard.  This is fact, not speculation.  As a founding member of the Maryland State Bar Association Committee on Veterans and Military Law, we receive daily inquiries from active, reserve, guard and veterans, concerning their need for urgent legal representations.  These legal representations are simply not being met by the National Guard, and this could be the only reason why so many prospective military service members and veterans are suddenly contacting the MSBA since the Judge Advocates of the Maryland Defense Force were all discharged honorably.    

Military justice requires that individual soldiers and airmen be represented, even when they have committed misconduct, even heinous misconduct, just as in the civilian world.  This concept is called due process.  Common decency also demands that when we send our children to war, we assist in making them whole when they return home.  The history of JAG service has existed since the United States Army was created, and even before when we were a colony. 

Just as in fiction, and just as with Atticus Finch, lawyers must be able to zealously represent their clients, even in unpopular or heinous matters. This is the very essence and foundation of the legal ethics which underpin our duty as attorneys and counselors at law.

I implore you to reject SB 13 in its entirety.  You should ask why, if the Maryland State Guard has existed since 1917 (and prior to that as an organized militia during colonial times), it is suddenly necessary in 2017 to completely reorganize the Maryland Defense Force and the Public Safety Article.

The reality is that this is a reactive proposal by the command, as this particular command did not appreciate legal challenge to its authority.  But importantly, soldiers and airmen have been represented – and challenging the command – since the founding of our nation.  Nothing about this is a new concept except for the leaders in charge in 2017.  Please do not allow one current leader to trample the rights of those who need representation, especially those who are the most vulnerable.  

As a primer on the legal underpinnings of the Maryland Defense Force, as well as its history as a State Guard, I am attaching the Maryland Bar Journal article which I authored in March 2014.  I would urge each member of this Committee to carefully read the article, and then to vote against this bill. 

While General Douglas MacArthur once famously stated, “old generals never die; they just fade away,” the same cannot be said for our soldiers and airman returning from our near-continuous foreign wars.  The reality is that some of them do die in service to our State.  After their death, it was Maryland Defense Force Judge Advocates who represented their interests, and those of their survivors. 

If any member of the Committee or your staff would like to discuss this matter further, please do not hesitate to contact me at 301-850-3370.  Thank you.