pageok
pageok
pageok
Politicizing the JAG Corps:

Via Jeralyn Merritt at TalkLeft comes a disturbing Boston Globe story about Bush Administration efforts to assert greater political control over the JAG corps.

The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted. . . .

The JAG rule would give new leverage over the JAGs to the Pentagon's general counsel, William "Jim" Haynes, who was appointed by President Bush. Haynes has been the Pentagon's point man in the disputes with the JAGs who disagreed with the administration's assertion that the president has the right to bypass the Geneva Conventions and other legal protections for wartime detainees.

A Pentagon spokeswoman said that Haynes was traveling and unavailable for an interview, and she did not respond to other written questions submitted by the Globe. In the past, Haynes has made several proposals that would bring the JAGs under greater control by political appointees.

As part of the uniformed chain of command, the JAGs are not directly controlled by civilian political appointees. But Haynes has long promoted the idea of making each service's politically appointed general counsel the direct boss of the service's top JAG, a change Haynes has said would support the principle of civilian control of the military.

Under the current system, boards of military officers pick who will join the JAG corps and who will be promoted, while the general counsels' role is limited to reviewing whether the boards followed correct procedures. The proposed rule would impose a new requirement of "coordination" with the general counsels of the services and the Pentagon during the JAG appointment and promotion process.

The proposal does not spell out what coordination means. But both JAGs and outside legal specialists say that it is common bureaucratic parlance for requiring both sides to sign off before a decision gets made - meaning that political appointees would have the power to block any candidate's career path.

The only argument for this change mentioned in the article is Haynes' claim that such reforms would "support the principle of civilian control of the military." I am not persuaded. As I see it, Congressional oversight and approval of UCMJ and the general policy-making authority of political appointees in the Pentagon is sufficient to ensure adequate civilian control of the military in this context. I do not see why it would require (if even support) injecting political appointees into the promotion process, but perhaps I am missing something.

UPDATE: Intel Dump places this policy change in the context of broader tensions between Bush political appointees and the military.

Related Posts (on one page):

  1. Administration Backtracks on JAG Proposal:
  2. Politicizing the JAG Corps:
Thomas_Holsinger:
It's fairly simple. The JAG Corps will not be allowed to become independent policy makers a la the CIA:

"This is why I am extremely concerned about the tendency of the intelligence community to turn itself into a kind of check on, instead of a part of, the executive branch. When intelligence personnel expect their work to become the subject of public debate, they are tempted into the roles of surrogate policymakers and advocates. Thus the deputy director for intelligence estimates explained the release of the NIE as follows: Publication was chosen because the estimate conflicted with public statements by top U.S. officials about Iran, and "we felt it was important to release this information to ensure that an accurate presentation is available." That may explain releasing the facts but not the sources and methods that have been flooding the media. The paradoxical result of the trend toward public advocacy is to draw intelligence personnel more deeply than ever into the public maelstrom.

The executive branch and the intelligence community have gone through a rough period. The White House has been accused of politicizing intelligence; the intelligence community has been charged with promoting institutional policy biases. The Key Judgments document accelerates that controversy, dismaying friends and confusing adversaries.

Intelligence personnel need to return to their traditional anonymity. Policymakers and Congress should once again assume responsibility for their judgments without involving intelligence in their public justifications."

I refer here to foreign unlawful enemy combatants captured and held abroad.
12.16.2007 6:00pm
Lior:
Attaching political officers to units in the field has been the norm in many 20th century militaries. These officers indeed promote "civilian control of the military" in several ways. First, they create an additional chain of command which is more directly under the control of the executive. Furthermore, by ensuring that political reliability of the troops such officers make sure that the military sticks to its assigned duties. Somehow I'm not surprised that the current administration believes that such a system would help the US military.
12.16.2007 6:42pm
Steve2:
Regarding "coordination", I'm reminded of a line in a science-fiction book I read: "Consider us having 'co-ordinated': you are an idiot, and I told you so."
12.16.2007 6:49pm
glarson (mail):
I am not a fan of this development, but don't we already have congress involved in the promotion of officers and have civilian appointees already involved in the promotion of General officers?
12.16.2007 6:51pm
Public_Defender (mail):
The President can always override a JAG officer's legal opinion, so the only reason to politicize the JAG Corps is that the President of the United States is embarrassed to override a lieutenant colonel somewhere.

One downside of politicizing promotions is that it invites Congress to do the same. As I understand it, Congress pretty routinely rubber stamps officer promotions now. That could and should change if the President makes promotions more of a partisan affair.

Also, if any of you Republicans think partisan loyalty is a good reason to promote an officer (especially a lower-ranking officer), imagine that power in the hands of Bill or Hillary Clinton.
12.16.2007 6:53pm
Simon (391563) (mail) (www):
Someone should start keeping a list of what abuses will only require an executive order or change in policy to correct and what abuses may need a legislative fix. Either or both could be part of the first 100 days of the next administration, be it Republican or Democrat.
12.16.2007 6:53pm
glarson (mail):
Lior

I do not see how political officers can work in the army of democratic nation. The role of the political officer in the Red Army is closest to our chaplains. The KGB was heavily involved with making sure the Red Army was loyal. Political officers were not KGB officers. The Gestapo has a similar role over the German Army. This can only work in a one party state.
12.16.2007 6:59pm
Oren:
And so continues the relentless drive to grind our military into the ground.


I refer here to foreign unlawful enemy combatants captured and held abroad.

As opposed to the one man rolling war crime writing an oped in the WaPo? Also, what does this have to do with UECs?
12.16.2007 7:03pm
Lior:
glarson: Political officers were responsible for the loyalty of the troops, though in a different (and more visible) way than the KGB. In any case I wasn't arguing that the US army needs political officers. It seems to me that the current Executive wants to attach a political officer (this new kind of JAG officer) to each unit, an officer outside the regular chain of command whose job will nevertheless be to ensure correct (orthodox) decision-making in the field.
12.16.2007 7:22pm
Thomas_Holsinger:
Oren,

JAG's are not ordinary criminal defense counsel. They are military officers first. IMO the administration's objective here is to prevent JAG corps from becoming a politically independent power center within the armed forces. See the term "lawfare":.

BTW, you can do better than that. Your derogative about the author of the Wash.Post article I quoted is a dead giveaway that you are an old-line lefty. That affects your credibility.

Next you'll be telling us that Geno's is evil because Mumia should be freed.
12.16.2007 7:27pm
Lesser Ajax (mail):
Isn't the real issue here the fact that JAG officers have been presented with a terrible dilemma?
1. Implement executive policy; or
2. Satisfy ethical obligations as an attorney
For example, in the Yoo article reference in the Globe, Yoo mentions as an example of JAG obstructionism the instances where JAG lawyers bypassed the military commission process and filed habeas corpus petitions in federal court on behalf of Guantanamo detainees. I believe he also mentions JAG reluctance to implement executive determinations that enemy combatants were beyond the scope of Geneva Convention protection. I assume, however, that these JAG officers were not just making policy choices, but rather were attempting to satisfy their ethical obligations as attorneys to provide zealous representation to a defendant and to obey the rule of law. Consequently, it looks to me like these officers had to make a very difficult decision about whether to implement the orders of the Commander in Chief or to obey the ethical obligations of their profession. I'm sure that this dilemma is made yet harder by the fact that, unlike most executive employees, military officers are not permitted to instantly resign if they feel unable to implement the orders of the President.
Anyway, it just seems to me that the proposals to threaten JAG officers with denial of promotion is not a response to a challenge to civilian supremacy, but is rather a measure designed to coerce attorneys to violate their professional obligations to their clients and to the law.
12.16.2007 7:31pm
Lior:
To make it clear: conditioning promotions on approval by the white house (and hence on political reliability as opposed to competence) will make JAG officers the equivalent of political officers. It will change the mission of JAG from ensuring that the military follows the law, to ensuring that the military follows the President. That should not be a welcome development. When batallion and bridge commanders are promoted without the political echelon getting involved, why should junior lawyers be vetted for political orthodoxy?
12.16.2007 7:33pm
Anon Y. Mous:
More from the Globe:

The former JAG officers say the regulation would end the uniformed lawyers' role as a check-and-balance on presidential power, because politically appointed lawyers could block the promotion of JAGs who they believe would speak up if they think a White House policy is illegal.


It appears at least some members of the JAG are confused about their role. They were never intended to have a "role as a check-and-balance on presidential power". They are under the command of the executive, not a co-equal branch of government.
12.16.2007 7:36pm
Thomas_Holsinger:
Anon,

Your quote from the Globe perfectly proves my point. These guys are unclear on the concept.
12.16.2007 7:59pm
PersonFromPorlock:
Anon Y. Mous:

It appears at least some members of the JAG are confused about their role.

Their role is to be lawyers and officers of the court first; otherwise, they're useless.
12.16.2007 8:06pm
PersonFromPorlock:

...otherwise, they're useless.

Or possibly 'accessories' would be better than 'useless'.
12.16.2007 8:08pm
Thomas_Holsinger:
PersonFromPorlock,

You too are unclear on the concept. They are military officers first.
12.16.2007 8:10pm
Thomas_Holsinger:
PersonFromPorlock,

I know, I know, you are also unclear on the concept of "war". Only death will release you from your misconception - it's almost a paradigmn issue.
12.16.2007 8:17pm
Lesser Ajax (mail):
Thomas Holsinger,
Don't you thing you're oversimplifying the conflicts that JAG officers face by simply stating that they are "military officers first"?
-First, all military officers have an obligation to refuse unlawful orders. If the President orders any military officer (including a JAG officer) to implement an illegal or unconstitutional policy, it is the duty of military officer to disobey.
-Second, as I read JAGINST 5803.1C Encl. 1 page 2 (the principles of ethics for Navy JAG), at least Navy JAG officers are ordered to obey the law, military regulations, and professional ethical responsibilities (in that order, unless the ethical duty is constitutionally based). This military regulation might at times require JAG officers to disobey executive policy. For example, I think this situation would occur if the executive policy is apparently unlawful (perhaps failure to abide by the Geneva Conventions) or the executive policy requires the breach of a constitutionally-based ethical duty (maybe a policy that limits the quality of representation in a criminal trial would abridge an ethical duty based on the 6th amendment, for example).
Anyway, it just seems to me that saying "they're military officers first and so must obey the executive policy" is missing the point. Being a military officer, in particular a JAG officer, may at times require disobedience. This is the tension that I think these officers are facing as we speak.
12.16.2007 8:39pm
Thomas_Holsinger:
LesserAjax,

It's called "judgment". Note Anon Y Mous' comment. These guys have shown ROTTEN judgment. Military officers are NOT free to disobey lawful orders of their superiors. Willful disobedience is commonly called "mutiny".

Military discipline is far more important than justice. That is the difference between the military and civilian judicial systems.

Here these guys are defying the Constitution.

"It appears at least some members of the JAG are confused about their role. They were never intended to have a "role as a check-and-balance on presidential power". They are under the command of the executive, not a co-equal branch of government."
12.16.2007 9:51pm
Muskrat:
This wouldn't be an issue if not for an earlier act of interference/miscalculation by the administration: they figured that military tribunals would rubber-stamp political decisions, but they forgot that military JAG officers are professionals. Those JAG officers proceeded to use all of the initiative, creativity, dedication to duty, and intelligence they had to achieve the goal given to them -- defend their clients. the administration assumed they would read their orders as "take a dive."

I'v always thought that a part of the ferocity of the JAG corps on these issue has ben an unspoken outrage that they were taken as patsies who were willing to phone in a complicit performance. I can only assume that hard-working JAGS didn't take too kindly to the idea that punks like David Addison and John Yoo just assumed that all JAGs were either incompetent or wiling to violate their sworn duty to their clients.

I admire all of our military men and women, but particularly admire the courage shown by the JAG corps in the last few years.
12.16.2007 10:26pm
Bill Poser (mail) (www):
If JAG officers really are military officers first and are required to obey the wishes of their superiors when they clash with their legal obligations, the argument for the legitimacy of the military court system against the criticism of command influence collapses.
12.16.2007 10:41pm
Dave Hardy (mail) (www):
This would seem the equivalent of having a public defender's office being put under the command of the county attorney. It is perhaps a necessary evil that they both answer to the county (which, since no one ever won an election on the basis of "I appropriated more for the guys who defend criminals," inevitably underfunds the PD).

Were I the guy in charge of both, and an attorney, I'd be worrying about conflict of interest (in a moral/ethical sense, if not in the sense of violating some specific ethical rule). It's a bit much in the real world to expect that someone would be ballsy enough to proclaim that "if you kick my ass in court, you desert a promotion." To expect that of a political appointee is to demand that which never was and never will be.
12.16.2007 11:32pm
Oren:

Military officers are NOT free to disobey lawful orders of their superiors.

And when Hamdi, Rasul and (soon) Boumedienne will establish that the orders given to these officers were, in fact, unlawful then I assume the matter will be settled.

Moreover, taking as true your claim that JAGs are "military officers first, lawyers second" then they are have and unavoidable conflict of interest that renders them wholly unsuited to serve as defense counsel for the detainees.
12.17.2007 12:02am
Oren:
It also occurs to me that, being officers, JAGs take is quite different from the general oath.


I, ___, having been appointed an officer in the Army of the United States, as indicated above in the grade of second lieutenant, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; so help me God.



I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. (my emphasis)


On first read, it would seem that a JAG has a duty only to the Constitution and, insofar as our current President can't seem to find his way inside its strictures, they are duty-bound to oppose him.
12.17.2007 12:07am
Thomas_Holsinger:
You lefties assume that Constitutional due process applies to foreign unlawful enemy combatants.

JAG officers are not lawyers who happen to be wearing uniforms. They are military officers.

Like I said, it's a paradigm dispute. You'll never, ever, understand the concept of "war". For that matter, the concepts of "foreigners" and "national sovereignty" are beyond you.
12.17.2007 12:10am
EH (mail):
You lefties...

LOL, which one of you broke him?
12.17.2007 12:51am
Oren:

You lefties assume that Constitutional due process applies to foreign unlawful enemy combatants.

Me and my lefty buddies Stevens, O'Connor, Souter, Ginsburg, Breyer and Kennedy. It's rather fortunate that we have a system for determining was Constitutional protections, otherwise we'd sit here arguing about online forever


JAG officers are not lawyers who happen to be wearing uniforms. They are military officers.

And as military officers they took an oath (see above) to defend the Constitution. This oath explicitly includes defending it against subversion by domestic enemies. They did not swear an oath to obey any order given to them by the POTUS.


Like I said, it's a paradigm dispute. You'll never, ever, understand the concept of "war". For that matter, the concepts of "foreigners" and "national sovereignty" are beyond you.

Thanks for that enlightening take on what I cannot understand. Here's my (apparently) ignorant understanding:

The government of the US (all of it, including its "national sovereignty") was created, whole cloth, by the Constitution. This Constitution delineates various authorities and restrictions on the actions of said government including certain rights which are given to "foreigners" as well as additional rights conferred on citizens. Recall that, in case of a dispute as to what the Constitution requires, it includes a method by which these disputes can be resolved.

This Constitution does not magically suspend itself in case of "war" but rather continues to function in earnest. Nor does a state of "war" justify arbitrary actions based on executive power. You will be shocked to hear that Congress still meets during times of war to make laws that are of the same legal status as laws passed during peacetime.
12.17.2007 1:15am
Zombie Richard Feynman (mail) (www):
Mr. Holsinger seems to think that "war" means never having to worry about justice or humanity.

And that anyone suspicious of unchecked wartime government power is a "lefty."

Down such a road lies baddness, sir. If civilization puts it's blinders on when the country is at "war" then we have met the enemy, and he is us.
12.17.2007 2:04am
Public_Defender (mail):
<i>Anyway, it just seems to me that the proposals to threaten JAG officers with denial of promotion is not a response to a challenge to civilian supremacy, but is rather a measure designed to coerce attorneys to violate their professional obligations to their clients and to the law.</i>

Nicely said.

As as to Thomas_Holsinger's concern that JAG's used habeas petitions to argue for rights their clients don't have, he has nothing to worry about. If the JAG's position is so obviously wrong, they'll lose. But I think part of Holsinger's concern is that the JAG's are right.

Bush has been testing the lawful limits of executive and military power. It's natural that he's going to get himself into legal tangles.

And, as I said before, if you are a Republican who thinks partisan loyalty is a good reason to promote an officer (especially a lower-ranking officer), imagine that power in the hands of Bill or Hillary Clinton.
12.17.2007 5:01am
Public_Defender (mail):
A lot of people overestimate the power of line-level lawyers. Contrary to popular myth, we can't use force or wave a magic wand to compel people to bend to our will. We can only persuade people that we are right.

How powerful are the JAG lawyers? Only as powerful as their arguments are strong.
12.17.2007 6:00am
Anonymous Reader:
Folks,

JAGs are military officers who, by virtue of earning their law degree and passing the bar, are military lawyers. They take the exact same Oath of Office as every other officer. Also, they undergo, for the most part, the exact same entry level training as any other officer. To argue that they have a more compelling loyalty to their "profession" is ridiculous.

Military lawyers are in the same boat as anyone else in the military, we are all subject to civilian control. You are correct that there is a tension between commanders and defense counsel, but this is how it is handled: military defense counsel do not fall within the local chain of command. So if you're defense counsel on a particular base, your boss is not the base commander, but another officer located somewhere else.

Anonymous Reader
12.17.2007 7:17am
Lesser Ajax (mail):
Thomas Holsinger,
Thank you for informing me that I will never understand the concept of war due to my lefty paradigm. Incidentally, I'm a former military officer. Please elaborate on the basis of your understanding of war within your righty paradigm. Are your convictions based on experience or is the correctness of your opinion simply self-evident?
12.17.2007 7:53am
Happyshooter:
Marine Corps lawyers are unrestricted line officers who are allowed full ability to command and are promoted under that standard.

Does this mean there will be a second promotion system for those Marines? Does it mean that Marine promotions will be overruled by the appointed officers? How does some civvie political lawyer expect to judge an officer's fitness for command?
12.17.2007 9:15am
JohnK (mail):
First, let's not deify JAG lawyers. I spent several years in the Army JAG Corps and I can speak from experience that it is a bed on cronyism and incompetence. Not that there are not lots of competent hard working JAGs, but they tend to be at the lower ranks. The best ones get out and move on to higher paying more prestige jobs and maybe stay in the reserves. Even the ones who are dedicated, if they don't toe the party line or manage get cross with some horrible supervisor end up being run out out of frustration. The current TJAG, Major General Scott Black is the first decent TJAG the corps has had since Nardoti all the way back in the early 1990s. Between Nardoti, who is a legend, and Black the Corps has produced a long line of empty suits and drunken philanderers for its top leadership. And one of the worst top JAG officers over that period was none other than MG and former TAJAG Altenburg, who is now or at least was the head of the military commissions. You want to know why there were things like Abu Garib and even worse prisoner abuse in Afghanistan by Army units? Part of it was that in the late 90s the JAG Corps had no idea how to train and prepare its people for combat. No one thought or did any training on detainee operations or interrogation law. Alterburg, who made his reputation advocating the need for operational law training, provided the wrong kind of training. Instead of preparing for fighting terrorism and an insurgency, we prepared to advise brigade's fighting the last war in the Fulda Gap. It is a different set of skills and one that was never provided. Further, the wrong people were promoted in many cases and the ethos, largely thanks to Altenburg, was "tell your commanders yes and do not tell them what they don't want to hear". Instead of being an independent advisor and conscience of a commander, the JAG was to be another part of the staff whose job was to massage the law to make sure the commander's intent was executed. It is a small difference but an important one. No one wants to be the guy who gums up the works and always says no. But at the same time, you are the lawyer and sometimes you have to give bad news and tell a commander that he shouldn't do what he wants. That independent ethos has slowly been beaten out of the JAG Corps in the last 15 years and replaced by an ethos of yes men and careerist climbers.

I don't know that putting them under the Army OGC is a good idea. But, don't fool yourself into thinking that military JAGs are somehow independent of the command. They are not.
12.17.2007 9:38am
JohnK (mail):
"The former JAG officers say the regulation would end the uniformed lawyers' role as a check-and-balance on presidential power, because politically appointed lawyers could block the promotion of JAGs who they believe would speak up if they think a White House policy is illegal."

That is just not true. The JAG Corps is not and has never been the President's lawyers. The office of Legal Counsel to the President are the President's lawyers. The JAG Corps has never advised the President or acted as a check on his power. The JAG Corps are the legal advisors to the military chain of command. The TJAG is the Chief of STaff of the Army's lawyer, not the President's lawyer. They are agency attorneys. Is the Chief Counsel for say Treasure or DHS or any other cabinet level agency also "an historic check on Presidential Power"? No they are not and niether is the JAG Corps.
12.17.2007 9:49am
PersonFromPorlock:
Thomas_Holsinger:

PersonFromPorlock...I know, I know, you are also unclear on the concept of "war". Only death will release you from your misconception - it's almost a paradigmn issue.

I spent eighteen months dropping bombs on North and South Vietnam, and quite a few years before and after that in the Air Force. It's possible that I learned something about war in the process, although a becoming modesty prevents me from claiming more knowledge of it than yourself or Sun Tzu.

Perhaps you'll gift us with a recital of your own experience, so that we may better appreciate the master at whose feet we sit?
12.17.2007 10:32am
DC_JAG_Guy:
I think many of the posters in this chain fail to understand or appreciate the conflicting obligations that come from being a JAG attorney.

On one hand, there are duties and obligations inherent in being an Officer, including the duty to faithfully execute the lawful orders of your superiors. On the other hand, there are also legal and ethical duties and obligations inherent in being an attorney that are not superseded (for purposes of professional and civil liability) by the fact that you're in the military. As evidenced by the struggles of the defense counsels assigned to GWOT detainees, these duties and obligations can clash. If you zealously defend your client, you may break orders and step on the toes of your superiors; if you follow every of your superiors and fail to zealously defend your client, you have failed as a lawyer.

Inserting political appointees into the promotion process asks JAG attorneys to subordinate their ethical obligations as a lawyer to the professional obligations as an Officer (or else they will be washed out of the Officer corps after being twice passed over for promotion). There may be some on this site who disagree, but I think asking this of JAG attorneys is very dangerous because of the risk it presents of creating a corps of yes-men rather than a corps of advocates.
12.17.2007 12:02pm
JohnK (mail):
"Inserting political appointees into the promotion process asks JAG attorneys to subordinate their ethical obligations as a lawyer to the professional obligations as an Officer (or else they will be washed out of the Officer corps after being twice passed over for promotion)."

Who is to say that the political appointees are going to expect that anymore than the general officers currently in charge? It has been known for years that being a TDS specialist is not the way to get passed LTC. Further, the political appointees change out. Isn't it possible that another administration's appointees could someday act to prevent the JAG Corps from punishing good officers? Implicit in your statement is the idea that the military JAG chain of command is somehow immune to political pressures or the pressure to tell the command what it wants to hear. That is to put it politely ridiculous.
12.17.2007 12:13pm
Michael B (mail):
Specific examples would be far more helpful than generalities.

The entire GWOT, or whatever it might be better termed, is rife with ambiguities, grey areas, sui generis qualities that need to be newly navigated, etc., so this heavy reliance upon a "political" appointee as a crux of the argument is not at all clearly decisive. (Does anyone believe military types in general are not susceptible to "political" pressures, both formally and informally understood?)

And if there's ambiguity in a JAG's various responsibilities, that in and of itself is not unique. Welcome to life. Additionally there are dubious and ambiguous qualities reflected in this need, or desire, for "independence" from this civilian and "politically" appointed oversight. It is, for example, reminiscent of John Kerry's Vietnam Vets against the War (or whatever it was called) and the various mendacious qualities reflected in that episode, resulting in his Winter Soldier testimony. I don't mean to be unfair with any such analogy, but the call for independence, absent more specific arguments, is not clearly warranted. It also brings to mind the "independence" of those "intel officials" who recently produced the NIE which is now roundly being critiqued, and not favorably so.

"Political" appointees are also civilian appointees and they also remain appointees of the CIC, Constitutionally defined, much as the Constitution guarantees civilian (thus politically elected and appointed) control of the military.
12.17.2007 12:42pm
JohnK (mail):
I don't understand the objection to political appointees controling the federal bureaucracy. If I don't like the decisions of a political appointee, I can help to vote his boss and him out of office. If I think the TJAG is an idiot, that is just too bad. It seems to me that this love of "independence" of the JAG Corps is really just another way of objecting to Bush's policies. If the JAG Corps were acting "independent" in another context where you agreed with the President, I would imagine there would be a lot less concern with independence and more concern over civilian control. Just a guess but I bet a lot of people are going to lose their love of an independent JAG Corps sometime in late January 2009.
12.17.2007 12:55pm
DC_JAG_Guy:
First, I never said or implied that the JAG chain of command is immune to political pressure. Of course they are pressured. But the proposed change goes beyond mere pressure; a promotion board feeling pressured by political appointees and a promotion board that requires approval of a political appointee are two separate things.

In the latter scenario, the politicos on a promotion board or to whom the promotion board reports would have veto authority, and the Officer who rocks the boat by defending his client in a way that pisses off his service's OGC will never see the next pay grade.

In the former, there is a degree of insulation between the Officer up for promotion and the pols in OGC. The pols can piss, moan, and exert all the pressure they want, but at the end of the day it's still the brass that decides who goes on the promotion list sent to Congress*. If the brass thinks that a Major is a damn good Officer despite the fact that he has stepped on some politico's toes, he still stands a chance of pinning on a silver leaf. However, if the brass has to get that politico's permission, the Major is doomed.

The result of such direct involvement by the pols would be, as I said, to present lower level JAGs with an unsettling choice: (a) aggressively defend your client but risk your chance for promotion, and in turn, your career in the Service, or (b) follow the policy wishes of the political appointees and be less than aggressive in defending your client, and preserve your career (at least until your state bar starts sniffing around). So we'll have our best JAG lawyers leave the service in even greater numbers, and a dedicate corps of yes-men promoted into the higher positions where the need for critical review and the ability to say "no" are at a premium.

Second, the mere possibility that a policy could possibly someday have some positive results (i.e., the "possib[ility] that another administration's appointees could someday act to prevent the JAG Corps from punishing good officers") does not offset the overwhelmingly negative results discussed above that are likely to stem from such a policy.

*Of course, there is always the argument that Congress has the ultimate say. However, to be frank, I'm less concerned about Congress because they have a shorter institutional memory and don't go through the promotion lists with a fine-tooth comb. It is usually only when there is a particularly (in)famous character on a promotion list that it gets held up. The pols in an OGC, however, do know who has acted against them and would likely react accordingly if given the chance.
12.17.2007 1:05pm
Thorley Winston (mail) (www):
I think JohnK just won the thread.
12.17.2007 1:15pm
DC_JAG_Guy:
JohnK --


I agree with you that for many people "love of 'independence' of the JAG Corps is really just another way of objecting to Bush's policies."

For me, though, my disagreement with this policy is that it opens the door for politicos to punish lawyers for zealously defending their clients. (If you don't think this would happen, just run a google search for the comments Charles Stimson made last year). This is a prospect with which every lawyer should be uncomfortable.
12.17.2007 1:24pm
JohnK (mail):
DC JAG Guy,

Why do you assume the influence of appointees to always be nefarious and that of the JAG chain of command to always benevolent? Frankly, I see no evidence considering the abysmal track record of the senior JAG leadership, especially in the Army, that the civilian leadership couldn't do just as good of a job choosing who to promote than the current active duty are doing. Further what is the potential downside of each alternative? If the political appointees have such a terrible influence on things, then the policies of the elected President go through with a bogus legal rubber stamp. The President's opponents are free to point that out and object to the policy and every four years we have an election to see what the country really wants. If the JAG Corps is not subject to civilian control and becomes "the conscience of the President" as it is now claiming to be, we have an independent bureaucracy that is accountable to no one who feels free to countermand the orders of the commander and chief and undermine his policies and there is nothing anyone can do about it. You assume that the JAG Corps' advice is always pristine and correct. Why is that always true? Is it not possible that the JAGs are wrong about some things or if they are not wrong now will be wrong in the future? If they are not subject to civilian control and truly independent, what happens when they are wrong?
12.17.2007 1:30pm
DC_JAG_Guy:
Thorley:

I think JohnK is right in his critique of 90% of commentators on this issue: that they are simply Bush-haters and this is just another way for them to attack him.

However, I don't see how any of his comments address the central issue in my critiques: whether it is proper for a political appointee to punish a lawyer when the lawyer zealously defends his client as he is ethically and legally required to do, but in a way that conflicts with the policy objectives of the political appoinitee?

I personally think it is wrong to punish a lawyer for this, and am afraid that this policy would allow just that to happen. Arguments as to how such punishment is proper are certainly welcome.
12.17.2007 1:33pm
JohnK (mail):
"For me, though, my disagreement with this policy is that it opens the door for politicos to punish lawyers for zealously defending their clients. (If you don't think this would happen, just run a google search for the comments Charles Stimson made last year). This is a prospect with which every lawyer should be uncomfortable."

This is about much more than a few defense attornys at GUITMO. This is about who is empowered to advise the President and JCS about military law. No one cares about whacking a few TDS attorneys, most of whom were reservists with outside careers anyway, for filing in federal court. It is about the President having some say in who is giving him legal advice. These issues, what constitutes torture, who is coverned under the Conventions and the like are not cut and dried and are very politically charged. The President does not want the various JAG Corps to have the ultimate say on those matters without any accounability to the political appointees. I think that is what this is about.
12.17.2007 1:35pm
DC_JAG_Guy:
I think you are correct that the JAG Corps should not have the ultimate say on the formulation of policies for such issues as what constitutes torture, who is covered under the the Conventions, etc.

However, the TJAGs and Dep. JAGs are appointed by the President himself. 10 USC 3037. Thus, the President already "ha[s] some say in who is giving him legal advice." Indeed, he has all the say in who is giving him legal advice.

Therefore, this policy can only be directed at weeding out the "trouble-makers" in the lower ranks. And in recent years, it has been these lower-ranked JAG Officers who have created the biggest legal headaches for the Administration by testing the legality of the policies that the President and his hand-selected advisors put into place. You cannot convince me that this policy is not intended to at least part silence future such dissent from within the legal ranks.
12.17.2007 2:00pm
DC_JAG_Guy:
Wow, that last sentence was clumsily written. Try: "I am convinced that this policy is intended, at least in part, to silence future dissent from within the legal ranks."
12.17.2007 2:20pm
Michael B (mail):
I give you credit for acknowledging the motives of 90% of the commentariat in addition to your sincerely motivated concerns. Still, it is the executive's job to test these waters precisely because of the stakes and because of the legal and more practical ambiguities inherent in the general WOT. Likewise, to what extent "trouble makers" belongs in quotes, denoting irony, is a matter of debate, one where, again, specific cases only would add more clarity.

For another vantage point, if JAGs are tasked with, or are tasking themselves with, this independence in order to quell what they deem to be a "too active" or "too aggressive" executive, for lack of any better term, then how do these same "independent" JAGs counter a too passive executive? Or is the one-sidedness of this particular "check and balance" deemed somehow appropriate? By contrast, checks and balances within the tripartite form of government we have serves to check and balance both too active and too passive executives, legislatures and judiciaries. Hence the one-sided quality of this particular check and balance reflects something of an imbalance.

Certainly there are concerns and checks and balances are requisite, but the fact remains the "political" quality here is not so discretely or so neatly defined and the one-sided aspect of this check-and-balance is itself suspect. The Constitution's guarantee of civilian control inherently and always likewise guarantees some form of political control; the two go hand in hand.
12.17.2007 2:47pm
Thomas_Holsinger:
DC JAG Guy is entirely correct. What he overlooks, though, is the political side of this which my first post addressed. The JAG corps simply will not be permitted to become an independent political power base capable of opposing administration policy.

Bluntly, the JAG corps is already politicized. This proposed new policy is the unavoidable and, except for the politically oblvious, expected and natural consequence of that.

And the veterans here overlook another - the independence and professionalism of the officer corps in general is conditioned upon its abstention from partisan politics. The politicalization of the JAG Corps, if not checked by this means, will result in politicalization of the officer corps in general.

The elected President is going to win this spat, one way or another. This is an issue of civilian supremacy. If the only way to keep the JAG corps from opposing an elected President's policies is to subject the ENTIRE officer corps to political scrutiny and control of officer promotions in general (i.e., no longer flag rank, but down to field or even company grade), the latter will happen. It won't happen quickly or easily, but it will happen.

With titanic effects on operational efficiency, not to mention federal politics in general.

It is a fatal error to consider this issue only from a legal perspective. This is about power. Politics is the study of power.

Many JAG officers are absolutely out of line here. I quote Anon Y Mous's post in full:

"More from the Globe:

The former JAG officers say the regulation would end the uniformed lawyers' role as a check-and-balance on presidential power, because politically appointed lawyers could block the promotion of JAGs who they believe would speak up if they think a White House policy is illegal.

It appears at least some members of the JAG are confused about their role. They were never intended to have a "role as a check-and-balance on presidential power". They are under the command of the executive, not a co-equal branch of government.
"

The elected President will win this fight one way or another. The only question is whether the armed forces as a whole pay a terrible price for the lack of professionalism of some JAG officers.
12.17.2007 2:49pm
PLR:
It would certainly be easier to bomb Iran if we didn't have all those pesky lawyers trying to educate the generals about the definition of a war crime.
12.17.2007 3:41pm
JohnK (mail):
"The elected President will win this fight one way or another. The only question is whether the armed forces as a whole pay a terrible price for the lack of professionalism of some JAG officers."

You are absolutely correct. We cannot have a JAG Corps that considers itself independent of political control. Also, I would not worry too much about the price to operational effectivness. Most promotions are not going to be important enough to be anything but rubber stamped by the political appointees. Further, the JAG Corps, at least the Army JAG Corps, is already populated by too many careerist chornies and not nearly enough competant and dedicated lawyers, especially at the field grade levels. I seriously doubt the political appointees would do any worse of a job promoting people.
12.17.2007 4:30pm
Thomas_Holsinger:
JohnK,

They don't consider themselves independent of political control. That issue is outside their frame of reference.

But they ACT as though they are only responsible to their opinions of their duty as attorneys (which they of course thoroughly confuse with their political opinions), irrespective of their primary duty as military officers.

You may also mistake my meaning here. The military's operational effectiveness will not be impaired in the least if DOD political appointees have veto power over JAG promotions at the field and company grade levels.

But if such control is not imposed on JAG promotions alone, it will be eventually imposed on ALL officer promotions, and that degree of political interference will definitely impair military effectiveness.
12.17.2007 4:44pm
PersonFromPorlock:
Thomas Holsinger:

The only question is whether the armed forces as a whole pay a terrible price for the lack of professionalism of some JAG officers.

The kind of 'professionalism' you're espousing is more usually practiced on streetcorners.
12.17.2007 6:52pm
Public_Defender (mail):
The administration's idea has at least three main problems.

First, any organization should want objective advice from its attorneys. As the clients and as civilians in charge of the military, the President and the civilian leadership, have every right to reject their lawyers' advice, but they are foolish if they ignore legal opinions that they are wrong.

Second, the President cannot turn JAG defense lawyers into patsies and also claim that the detainees have a fair chance to argue that they aren't really terrorists. Remember, some of these people are just dudes whose neighbor told a US soldier that they were terrorists in order to get a bounty.

Finally, these JAG lawyers don't have any power other than the persuasiveness of their arguments. If Bush wants to shut them down, it shows he fears the truth. Let the JAG's argue their case to detainee review panels. Let the JAG's try to persuade federal courts that the military isn't following the law. If Bush and Tomas Holsinger are so obviously correct, they have nothing to fear from lawyers.


The elected President will win this fight one way or another.

The elected president will be gone in 13 months. The JAG lawyers will still be there.
12.17.2007 7:09pm
Thomas_Holsinger:
PersonFromPorlock,

Consider how the European judicial system (based on the Napoleonic Code) deals with Islamic terrorism. Your categorization of "professionalism" here excludes them too. And it shows how parochial and ignorant you are. American law is not the only body of law in the world. I recall an old Jackie Gleason skit in which he attempted to communicate with waiters in France by shouting English at them louder. Instead of Garcon, it was "Gargoyle! Gargoyle!"

But you are in good company. The Bush administration is making the same mistake due to timidity and lack of energy in the Executive.

The only reason we have any issue at all here is our silly attempt to put a square peg in a round hole - the Anglo-Saxon common law adversarial system is simply not an appropriate vehicle for dealing with foreign terrorists.

The military tribunals here are not, and cannot, be adversarial in nature.
12.17.2007 7:31pm
Public_Defender (mail):

the Anglo-Saxon common law adversarial system is simply not an appropriate vehicle for dealing with foreign terrorists.

Maybe, but "the Anglo-Saxon common law adversarial system" can do just fine dealing with some dude whose neighbor told a CIA official that the poor sap was a terrorist in order to collect the bounty we paid.


The Bush administration is making the same mistake due to timidity and lack of energy in the Executive.

Yeah. Bush's position that he could take anyone from anyplace in the world and hold the guy forever at Gitmo on his say so alone demonstrated "timidity and lack of energy in the Executive."

Are you trying to be funny?
12.17.2007 8:12pm
Thomas_Holsinger:
Public Defender,

Partisan politics and institutional politics are not the same. They are different. Lest you think I am being insulting, consider the following statement of yours:

"First, any organization should want objective advice from its attorneys. As the clients and as civilians in charge of the military, the President and the civilian leadership, have every right to reject their lawyers' advice, but they are foolish if they ignore legal opinions that they are wrong."

When I say, "Bush administration", I mean the administration of incumbent President George W. Bush. When I say, "the elected President", I mean the institutional office of the Presidency, regardless of who is President at the moment.

No President will tolerate a political officer corps which acts contrary to his or her policies. The armed forces paid a terrible price for the rank obstructionism of JCS Chairman Colin Powell to the Balkan policies of President George H. Bush (the current incumbent's father) and President William Clinton. The latter, in December 1995, also took out Colin Powell's incipient 1996 presidential campaign with selective leaks and newspaper articles, notably involving Georgeanne Geyer.

This one will be simple and brutal. Either the JAG corps is subjected to political vetoes of field and company grade officer promotions, or the officer corps as a whole will be. This is an issue of civilian supremacy. The armed forces carry out policies determined by the President. They do not act as a check on presidential power.

"... The former JAG officers say the regulation would end the uniformed lawyers' role as a check-and-balance on presidential power, ..."
12.17.2007 8:17pm
Public_Defender (mail):

No President will tolerate a political officer corps which acts contrary to his or her policies.

The President (or his officers) told these JAG officers to represent detainees. They are.

The President (or his officers) asked these JAG officers for their opinions. They gave their opinions.

It sounds like the JAG officer's are just doing their job.

Congress and the President have created a legal framework in which the military acts. It's part of the JAG officers' job to advise the military to follow the law. Even the President must act within that framework. If the JAG officers think the law isn't being followed, they can't force their will on anyone. They are only as powerful as their legal arguments are persuasive.

I also don't remember conservatives being upset when the military resisted Commander In Chief Bill Clinton's effort to integrate openly gay people into the service.
12.17.2007 8:49pm
74 (mail) (www):
JAGs are not the only Naval Officers that have "conflict" between what they are (Naval Officers) and what they do. The Medical Officer has to balance the Hippocratic Oath and the Oath of Office. All other Naval Officers (and Enlisted Personnel for that matter) occasionally have to put their careers on the line because of a conflict between what their commanders want and what laws, regulations, and morality say must be done. If JAGs should have a different promotion process because they might someday advise the president, what do you think the Joint Chiefs do?

DC JAG Guy - don't feel too special because you're conflicted.
Everyone else - My two cents worth says JAGs should be promoted exactly like any other Naval Officer; which is to say no political appointees.
12.17.2007 11:12pm
Army JAG (mail):
Wow, a lot of opinions floating around here and many of them seem, well, incorrect.

1. Military lawyers do one thing: they give opinions. Whether it's a closing argument or a position paper on military commissions, that is all military lawyers, or any lawyer for that matter does. If we are a check (and we can be), it is as an appeal to morality or conscience. We don't make decisions, we don't make policy so all of the "too big for their britches" posts I'm seeing seem laughably silly.

2. So given the above, and our lack of ANY real power, then it seems to me that the only purpose of political appointees governing our promotions must therefore be to affect our opinions and advice. Or, to keep us from as zealously representing clients who are "unappealing" to many, even as we have been ordered by our superiors and the President himself to defend those "unappealing" clients.

Either situation DOES come into conflict with our oaths as attorneys and our ethical and legal obligations as such. To paraphrase someone up above, we wouldn't stand for it if a commander told a Doctor "euthanise that man, I order it!", but apparently, a commander (or President) telling a lawyer to "dont zealously advocate" or "dont file any motions" or "dont give your opinion if it's not what I want done" is hunky-dory for some?

I suspect that is because the opinions being given almost unanimously by military attorneys have run counter to what those very people want to have happen with GITMO and what not, and the American people are being persuaded by those attorneys (among many, many others).
12.18.2007 12:50am
Public_Defender (mail):

I suspect that is because the opinions being given almost unanimously by military attorneys have run counter to what those very people want to have happen with GITMO and what not, and the American people are being persuaded by those attorneys (among many, many others).

Darn you and your persuasive arguments!

Seriously, you JAG lawyers have a great reputation among the practicing criminal defense bar. You're a credit to both your uniform and our profession.
12.18.2007 6:48am
Patrick Skelly (mail):
Can Steve2, sans e-mail address, or another reader please cite the source for Steve's quote, "Consider us having 'co-ordinated': you are an idiot, and I told you so." It is very apt in many arenas today. E-mail response appreciated, as I got to this thread only by redirection from Belmont Club.

To the subject at hand: I do not accept that DoD civilian oversight of JAG officer promotions is a legitimate instance of 'check and balance'. Check, yes; even double-check, but not balance.

Thank you, all, for a timely, interesting, and useful discussion.

Patrick Skelly
military historian
12.18.2007 9:40am
rag (mail):
The only reason we have any issue at all here is our silly attempt to put a square peg in a round hole - the Anglo-Saxon common law adversarial system is simply not an appropriate vehicle for dealing with foreign terrorists.

The military tribunals here are not, and cannot, be adversarial in nature.


This would be a great argument if we didn't have an Anglo-Saxon common law adversarial system, but we do, and saying we don't doesn't make it so. To say that the commissions were not designed to be adversarial demands proof. They are based on adversarial courts martial under the UCMJ.
12.18.2007 4:17pm
dick thompson (mail):
While there may be questions about the politicization of the JAG, how should the question of the opinion of the JAG be handled by the military? I am thinking in particular of the opinion by the JAG of a command who stipulated that snipers could only use certain selected shells. She knew nothing about the shells but had the snipers followed her rulings they would have resulted in the loss of many more men and the escape of many terrorists. How do you keep the JAG out of those issues where they have no expertise and still enable them to do their job?

Allied with this is the political beliefs of some of the JAG which is opposite to that of the administration which is charged with running the war. When the JAG allows personal political beliefs to override their military responsibilities who is to be the one to stop them.

I also note that many of the comments here are based on the JAG being the defense counsel for the prisoners. Is that really what you think their primary duties are?
12.18.2007 9:36pm
Michael B (mail):
Well, I will say that in this case the opposition has been persuasive. I still think it's the business of the executive, within some bounds, to test these waters, given some of the ambiguities and sui generis qualities involved, but I admit to being largely persuaded to change sides in this case.
12.19.2007 6:25am
Army JAG:
"how should the question of the opinion of the JAG be handled by the military?"

So you've listed one alleged incident where a JAG officer got something wrong? You mean we aren't infallible??! Say it ain't so. Seems to me there is a system in place called the Officer Evaluation Report which takes into account mistakes made. Also seems to me combat officers with years of experience also make mistakes that could result in the loss of men or the escape of terrorists. Perfection is not anyone's business.

"When the JAG allows personal political beliefs to override their military responsibilities who is to be the one to stop them."

Two points here. First, you say personal political beliefs because you personally don't believe in their opinions. If they gave opinions you liked, no doubt you'd say it wasn't based on personal political beliefs but them just doing their job. Second, let's face it, everyone has personal political beliefs. Are we going to say now that no one can give an opinion because of it? Many of these folks are "personally" conservative or Republicans, and yet they are still attorneys with our perhaps over-heightened sense of the law and equity.

"I also note that many of the comments here are based on the JAG being the defense counsel for the prisoners. Is that really what you think their primary duties are?"

No, but it is a primary area of conflict and issue here. We aren't going after the legal assistance attorneys doing wills, and we aren't going after the trial counsel prosecuting (unless they prosecute someone for crimes against Iraqis and then we are upset at them).
12.19.2007 11:38am
Don Meaker (mail):
The key distintion is "Lawful Order". A JAG is under no obligation, when acting as a defense attorney, to provide less than the best legal defense he can. Any order to the contrary would be illegal.

A defense Attorney, JAG or otherwise, is forbidden to use purjured testimony, no mater how much it may help his case.

I suggest that coordination of JAG promotions may, or may not be necessary, based on the extent to which JAG officers now let politics get in the way of supporting the administration. If a JAG officer does let his politics get in the way of his support of his lawful orders, he should resign, or quickly be put on trial himself. No officer should have a problem with following lawful orders. There are stupid lawful orders, but any officer who substitutes his judgement for the judgement of his chain of command is taking a risk of court martial. There will be times when such a risk must be taken, and an officer will stake his life (as well as his career) on the result.

Austria Hungary had a "Maria Theresa" medal: awarded to the officer who won a great victory in absence of or contrary to orders.
12.19.2007 11:53am
Army JAG:
"based on the extent to which JAG officers now let politics get in the way of supporting the administration"

Please show me (a) where this is happening and (b) where "supporting the administration" is anywhere in the oath of an officer or the UCMJ.

Follow orders? Sure, when legal. Not disparage the President and others IAW Article 88? Absolutely. Support the Administration? If that means give whatever legal opinion they want, then no.
12.19.2007 1:07pm
Michael B (mail):
It would still be helpful for someone to detail a specific example or two where they felt dissent was warranted.
12.19.2007 3:54pm
Oren:
12.19.2007 4:11pm