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From our ‘cancelled after one season’ file come The Code, a CBS legal procedural set in the JAG corps of the US Marines. In this episode, we analyse the show and its controversial political content including discussion of the Feres Doctrine – which prohibits people from suing the US military for anything that happens on active duty. We also examine how the Pentagon got involved in The Code, ruined it and helped it get cancelled.

I am sure that very few of you will have watched The Code, because hardly anyone watched it, and I am not recommending that you do. It isn’t very well written or well made in any sense of the word, I didn’t enjoy watching it in terms of drama or entertainment. This is purely of interest because of the politics of The Code, and how and why they changed several episodes in. But before we get into that, some background.

For anyone who doesn’t know, military members are not subject to civilian law, they are subject to the UCMJ, the Uniform Code of Military Justice, hence ‘The Code’. They aren’t tried in civilian courts, but in courts martial, though many of the same limits and restrictions apply in terms of admissibility of evidence, right to confront accusers and so on.

The Code was created by two writer-producers who have done nothing else of any note – Craig Sweeny and Craig Turk – it was commissioned by CBS in 2018 and broadcast its one and only season in 2019. It got relatively poor reviews, mediocre viewing numbers and was not renewed for a second season.

The only reason I started watching The Code was because it is a military-legal drama. I find this sub-genre one of the most interesting in the entire military genre because it’s one of the rare places where the legality and morality of various actions is discussed and debated. We’ve previously looked at A Few Good Men, Rules of Engagement and NCIS, though the latter is more of an investigation procedural than a courtroom drama. I know we haven’t looked at the fairly long-running series JAG before, but it’s the same story. The influence the military has had on this small but important sub-genre is considerable.

I was expecting The Code to be more of the same, and the description used in marketing materials suggested as much – ‘The United States Military’s brightest minds take on America’s toughest challenges inside the courtroom and out, where each attorney is trained as a prosecutor, a defense lawyer, an investigator—and a Marine.’

So far, so JAG.

What surprised me was that the first few episodes of the show are – while weakly-written – quite hard hitting. They don’t shy away from controversies and scandals, but instead embraced them. This was so thematically different to NCIS, while ostensibly being a very similar show, that I wondered what had gone on behind the scenes.

In August 2019, shortly after CBS cancelled the show, Task and Purpose did a feature on the relationship between the Marine Corps and the showrunners, based on anonymous interviews. Task and Purpose is a website written by military veterans, largely for military veterans, and had previously published a piece celebrating The Code’s cancellation, following a storm of social media criticism of the show by military veterans.

The feature explains:

But over its first season, the series failed to cultivate a dedicated audience, lagged in network ratings, and, perhaps more importantly, pissed off an online army of U.S. military veterans incensed by the series’ inaccuracies.
This could have been at least partially avoided, according to several sources, if Sweeny and Turk hadn’t outright rejected the Marine Corps’ help at every turn.

This account is based on conversations with two Marine Corps officials and a source at CBS Entertainment with knowledge of the interactions between the The Code team and the Corps. All three spoke on condition of anonymity out of fear of reprisal.

After learning that CBS has started production on The Code in 2018, Marine Corps officials at the Entertainment Media Liaison Office made several offers to provide production assistance for the series, from furnishing the production with equipment and personnel to fine-tuning daily scripts. This is not an irregular request: officials, for example, spot-check episodes of NCIS weekly for inaccuracies.

But all of the Corps’ offers were rebuffed by the show’s production team, officials with CBS and the Marine Corps said.

“[The Corps] offered multiple times to help, offered up assistance at every opportunity,” said one Marine. “The show-runners blew them off every time.”

And it showed: when CBS first previewed the show on social media in early March, U.S. military veterans quickly pointed out a series of glaringly obvious errors, from inconsistent ribbons and non-regulation haircuts. In the pilot episode alone, a Navy O-5 appears at his court-martial in the uniform of an O-3.

Let’s just stop here for a second – the officials don’t simply spot-check NCIS for inaccuracies, they request specific storylines, they remove or rewrite any storyline they don’t like, the military effectively co-produce the entire NCIS TV universe. I do find it frustrating that Task and Purpose, one of the few places to cover this issue, do so in the exact same way the ELOs talk about themselves. It’s simply misleading.

The feature continues:

While The Code became a target of veterans’ ire, it failed to gain traction. The show’s audience plummeted from 8.13 million U.S. viewers for the pilot episode to 4.45 million by the second. When the finale aired on July 22, only 2.91 million households tuned in, giving the series a 0.3/2 ratings/share (that is, 0.3% of all U.S. TV viewers and 2% of viewers watching during the series’ time slot) in the 18-to-49 set.

This wasn’t merely a function of uniform mistakes. Despite the success of JAG before it, the critical consensus on the The Code was that it was simply another crime procedural that “did little to differentiate itself in a crowded field,” per Rotten Tomatoes.

But to the two Marines sources who spoke to Task & Purpose, this failure was an unforced error — after all, it’s not like Corps officials hadn’t gone above and beyond to lend to the production.

Indeed, one overture even came at the behest of then-Commandant Gen. Robert Neller, who offered a CBS executive and cast members from The Code who were in attendance at the 2018 Marine Corps Birthday Ball a “mini boot camp” that would have included a mock version of officer candidates school, weapons training, and a leadership reaction course.
But when officials in the Entertainment Media Liaison Office attempted to contact show-runners Sweeney and Turk regarding Neller’s offer, they were “essentially told to f-ck off,” said another Marine official.

When Task & Purpose asked the Marine Cops Entertainment Media Liaison Office for comment, an unnamed public affairs official flatly told Task & Purpose, “we didn’t work on that” before hanging up.

Representatives for Sweeny, Turk, and CBS Entertainment did not respond to multiple requests for comment.

I’m sure you’re starting to get the picture here – the showrunners did not want any ‘help’ from the Marine Corps, because they knew it meant they couldn’t tell the stories they wanted to tell.

The feature concludes:

But what was surprising about The Code, according to sources, was the sheer level of resistance to input on matters of Marine Corps culture and protocol that Sweeny and Turk telegraphed.

“There’s never been difficulty with other productions like this,” said one Marine official. “The production company should have sought out the Corps’ expertise because the most important thing was to get it right.”

In March, the Corps finally got an unexpected chance to provide feedback. After Marine veterans flamed the living bejesus out of the series’ hilariously bad trailer on social media, according to one source, a producer on The Code apparently contacted Marine officials about potentially premiering the series on a Marine Corps base.

Understandably, Entertainment Media Liaison Office officials refused unless it could review the show’s scripts. As a result, they managed to cut several scenes a Marine Corps source described as “egregiously offensive.”

Notice – the theme here is all about accuracy, especially as it pertains to uniforms. It is certainly true that the uniforms on this show are bad, either the wrong ones or just uniforms that they wouldn’t actually allow in the Marine Corps. Some of the ‘authentic’ Marine slang is dropped into scenes in a cringeworthy way – I can certainly see why veterans were slating this show.

So, I filed a FOIA request with the Marine Corps for records of their communications with the producers, as mentioned at the end of that article, and they came back saying they didn’t have any such records.

Decoding The Code

The Code’s only true strength is its willingness to engage with topics that the military don’t want people to know about. Let’s take a look at the storylines in the first four episodes, because they’re a good illustration of the kinds of plots and cases you never get on shows like JAG and NCIS.

Episode one opens at a base in Afghanistan, shot in some sandy part of the US with a crudely-constructed set. The production values really aren’t good. A Marine is spotted late at night headed towards the perimeter fence, so his superior officer chases him down and tries to stop him, see what he’s doing, whereupon the Marine stabs him.

On the face of it, this appears to be a straightforward murder case. The dead Marine, it turns out, is the best friend of the handsome JAG corps lawyer prosecuting the case. In the real JAG corps they would never assign a lawyer a case in which he was so close to the deceased, because it could be thrown out for conflict of interest, or the defence could argue the prosecution’s case is malicious or improperly motivated.

But it helps set up a longer-term storyline, which I’ll get to later on, so I accepted this lack of realism for what it is – necessary for the overall story arc.

As the lawyers on both sides dig into the case, they find that the accused has several apparently undiagnosed concussions. They find out that the MACE protocol – the Military Acute Concussion Evaluation – is not being administered properly on that base, that the Marines were simply given the test over and over until they passed, and were then declared fit for duty.

Traumatic Brain Injuries or TBIs are suffered by maybe a third of all wounded military personnel – they are extremely common in the more recent wars due to the prevalence of IEDs, roadside bombs and the like. The blast wave hits a convoy and even if you suffer no external injury, it can bash the brain around inside the skull, causing bruising and other problems.

Now, it isn’t just in the military that there’s a lengthy and quite fierce debate around concussions, how to check for them without having access to an MRI scan, how to prevent them from happening in the first place. This is also a recurring debate in competitive sports, especially football, both the American and the proper kind. So this storyline is based in a real thing – brain injuries are very common in the American military, and the diagnosis and treatment of them isn’t great.

The Code jumps the shark a bit when it turns out that the base commander, who’d ordered the medical staff to manipulate the MACE protocol, arranged for the murder of the officer because the dead guy was about the blow the whistle on him. That seemed like a stretch to me, but I guess in for a penny, in for a pound.

In episode 2 a Marine in Somalia, which looks surprisingly like a field in the US with a crude set built on it, is accused of cowardice after abandoning his fellow Marines during an ambush. Meanwhile, a drunken Marine stationed in Spain drives into and kills a Spanish citizen, leading to the Spanish government asking for a renegotiation of the ‘Status of Forces Agreement’, in the hope the drunk-driving Marine could be tried in a Spanish court.

Drink driving, and driving accidents (especially motorbike accidents) are another touchy subject, and of course the notion of a Marine being guilty of cowardice isn’t exactly good PR either. That being said, the pattern in the script changes on NCIS is that as long as the bad soldier or bad Marine is a lone bad apple, it’s tolerable as long as they are held to account.

But that’s not quite what happens here. As the lawyers investigate they discover that the Marine suffers from panic attacks. The defence lawyer confronts him over this, and he refuses to admit there is a problem with his health.

In this scene he also admits to an attitude within the Corps whereby combat Marines look down on others, and implies that the toxic culture of self-denial within the Corps meant that he couldn’t admit to suffering from anxiety attacks. While these things are not universal, they do exist, and not just within the Marine Corps. In the end, the Marine stands up in court and admits what happened, and apologises to the families of those who died in the ambush.

Episode 3 is quite convoluted – a female Marine makes captain, and is promptly attacked and assaulted outside a bar. While the attackers are found fairly quickly, the question remains as to how they identified the captain, and the trail leads to a high-ranking female officer who has been leaking to a journalist. To try to prove that the officer is the source of the leaks, one of the prosecuting lawyers sets her up with a false story.

While this is exactly the sort of shenanigans that ratfuckers get up to, again it is not good PR for the Corps. But that pales in comparison to the other plot line that begins in this episode. The wife of the Marine murdered in episode 1 decides to file a wrongful death suit against the Corps, saying that the institutional failure around the MACE protocol resulted in her husband’s death.

The problem is the Feres Doctrine, which prevents anyone from suing the military based on things that happened while they or their loved ones were on active duty. The other problem is that the widow wants her husband’s friend – the lawyer who prosecuted the case, to testify in the lawsuit. So he meets with the lawyer bringing the suit, and it becomes clear that he intends to challenge the Feres Doctrine when the case gets to the Supreme Court.

This is a very serious issue, because it effectively means that nothing that happens to anyone while they’re on active duty can be said to be the result of negligence or corruption within the military. Of course, about half of what happens to people on active duty every day is a result of negligence or corruption within the military, so the doctrine is absurd.

This is perhaps the hardest-hitting story element in The Code, because most people don’t even know about the Feres Doctrine, let alone have heard any arguments against it. Of course, repealing it would, as the show says, result in an avalanche of lawsuits but why shouldn’t the one of the world’s largest, richest institutions face an avalanche of lawsuits? The argument that repealing the Feres Doctrine would result in greater accountability is surely an argument in favour of repeal, rather than against it.

Episode 4 centres on a fairly straightforward war crime and cover-up story, where a Marine turned congressman is accused, via a deathbed confession, of murdering an Iraqi civilian, execution style. Again, this is something that does happen, has happened, there are endless accounts of this sort of thing, but it’s absolutely the sort of thing the military and their entertainment liaison offices detest.

However, after episode 4 the show took a turn, and became a candy ass version of itself. It continued to explore potentially controversial storylines, but each time someone other than the military were partly to blame. For example, there’s a story about Marines violently confronting people pretending to be active duty personnel, and posting the videos of the fights online. One of the fake Marines ends up dead, but in the course of investigating the case they found out that the website administrator encouraged people to get violent so that their videos would get more views, and hence make more money.

In another episode an AI drone system apparently malfunctions and kills several Marines, and they suspect a tech working on the project had some kind of personal hatred for one of the dead men and murdered him. But it turns out he’s working for the Russians and the whole thing was some kind of intelligence-sabotage black operation. In yet another, a Marine is accused of disobeying orders while in Syria, but it turns out he was protecting civilians. One more – two Marines at GITMO are accused of helping a terrorist break out of the prison, but it turns out they’re working for the CIA.

As to the series-long arc about the Feres Doctrine, the JAG lawyer is told by his colleagues that he’ll face pushback from the chain of command if he testifies in the lawsuit, but this pushback never really arrives. There’s one scene where one older general turns up, but he makes it clear that while the case is being discussed at a high level, no one has sent him to deliver a warning.

In the end, the widow and the JAG lawyer get romantically involved, and they realise they can’t both pursue the relationship and the lawsuit, because a Marine schtupping the widow of his best friend, the dead Marine who is the subject of the suit, is a horrible combination. So they drop the suit, not because of military pressure, not because they keep getting told they are betraying the Corps, but for personal reasons, for love. The perfect excuse for removing the most subversive, controversial element of the show.

The Story Behind The Story of The Code

So what happened? Why did this idealistic, if poorly-made, TV show take a turn a few episodes in? Why did they abandon their critical approach to the themes explored via the cases that the lawyers handle?

According to Task and Purpose, the Marine Corps either didn’t work on the show at all, despite numerous attempts to get involved, or their snowflake fun police removed a few ‘offensive’ scenes after the producers reached out hoping to premiere the show on a Marine base. According to the Marine Corps FOIA office, they have no records of communications with the producers on this matter.

And that’s where the story stayed for almost two years, until I got a batch of documents from the DOD’s entertainment liaison office, the head office at the Pentagon that oversees the branch offices in Hollywood, as well as the involvement of the NY public affairs staff. One of these documents mentions The Code, saying:

Contacted by CBS Television regarding upcoming episodic program, “The Code.” The basic story line follows a team of USMC JAG lawyers investigating and arguing cases involving service members. The showrunner turned down several offers of assistance by the Marine Corps Entertainment office during production. Marine Corps leadership was apparently provided advance copies of several of the episodes and was displeased enough that they communicated what they saw as serious shortcomings in the depiction of the Marines. CBS Television has indicated a desire to correct the problems in future episodes by accepting DoD assistance.

According to this document the Marine Corps were provided advance copies not just of the scripts, as reported by Task and Purpose, but of the episodes themselves. And it seems the Marine Corps and/or DOD got on board several episodes in, which explains why the show took the turn that it did and became a neutered, diluted version of what it was trying to be.

Taking the story altogether – two producers decided to make a show taking a critical look at the US military, through the means of a legal procedural. They somehow persuade CBS to commission a first season, whereupon the Marine Corps start hassling them, demanding to be involved. The showrunners resist their overtures, because they don’t want to butcher their scripts. Another producer, likely one from the network, decides after several episodes have been made to reach out to military leadership and slips them copies of those episodes. The military go batshit, and basically bully the producers into accepting ‘DOD assistance’. The show takes a nosedive thematically, turning it from a badly-made but bravely-written effort to ask serious questions about the Feres Doctrine and other issues, into a tedious, low brow procedural. The show then gets cancelled.

We might call this cultural sabotage, because the DOD wrecked the only good thing about The Code, and contributed to it getting cancelled after a single season. I have never come across anything quite like this, in all the years I’ve been investigating the military-culture industries relationship. They basically wrecked a TV show for talking about things they don’t want people talking about, but that people should be talking about. This was achieved through pro-active censorship, and then a cover-up.

If ever there was a case that should itself be heard in a court, it is the story of The Code.