Sunday, December 09, 2007

3 Stars for three wise men

I understand that the JAA is reporting that the version of the DOD Authorization Act that emerged from the conference committee includes a provision giving each of the Judge Advocates General three stars and giving a star to the Chairman of the Joint Chiefs of Staff's legal counsel. [See also the Kabul Klipper's post here, which he was apparently writing simultaneously with my drafting of this post.]

Floor votes in the House and Senate are expected soon; it is anticipated that the President will sign the bill not later than 18 December.

The conference report reportedly provides:

Conference Report to Accompany H.R. 1585 –
National Defense Authorization Act for Fiscal Year 2008

06 Dec 2007

SEC. 543. MODIFICATION OF AUTHORITIES ON SENIOR MEMBERS OF THE JUDGE ADVOCATE GENERALS’ CORPS.

(a) DEPARTMENT OF THE ARMY. —

(1) GRADE OF JUDGE ADVOCATE GENERAL. —

Subsection (a) of section 3037 of title 10, United State Code, is amended by striking the third sentence and inserting the following new sentence: ‘‘The Judge Advocate General, while so serving, has the grade of lieutenant general.’’.

(2) REDESIGNATION OF ASSISTANT JUDGE ADVOCATE GENERAL AS DEPUTY JUDGE ADVOCATE GENERAL. —

Such section is further amended—

(A) in subsection (a), by striking ‘‘Assistant Judge Advocate General’’ each place it appears and inserting ‘‘Deputy Judge Advocate General’’; and

(B) in subsection (d), by striking ‘‘Assistant Judge Advocate General’’ and inserting ‘‘Deputy Judge Advocate General’’.

(3) CLERICAL AMENDMENTS. —

(A) The heading of such section is amended to read as follows:

‘‘§3037. Judge Advocate General, Deputy Judge Advocate General, and general officers of Judge Advocate General’s Corps: appointment; duties’’.

(B) The table of sections at the beginning of chapter 305 of such title is amended by striking the item relating to section 3037 and inserting the following new item:

‘‘3037. Judge Advocate General, Deputy Judge Advocate General, and general officers of Judge Advocate General’s Corps: appointment; duties.’’.

(b) GRADE OF JUDGE ADVOCATE GENERAL OF THE NAVY. —

Section 5148(b) of such title is amended by striking the last sentence and inserting the following new sentence: ‘‘The Judge Advocate General, while so serving, has the grade of vice admiral or lieutenant general, as appropriate.’’.

(c) GRADE OF JUDGE ADVOCATE GENERAL OF THE AIR FORCE. —

Section 8037(a) of such title is amended by striking the last sentence and inserting the following new sentence: ‘‘The Judge Advocate General, while so serving, has the grade of lieutenant general.’’.

(d) INCREASE IN NUMBER OF OFFICERS SERVING IN GRADES ABOVE MAJOR GENERAL AND REAR ADMIRAL. —

Section 525(b) of such title is amended in paragraphs (1) and (2) (A) by striking ‘‘15.7 percent’’ each place it appears and inserting ‘‘16.3 percent’’.

(e) LEGAL COUNSEL TO CHAIRMAN OF THE JOINT CHIEFS OF STAFF.—

(1) IN GENERAL. — Chapter 5 of title 10, United States Code, is amended by adding at the end the following new section:

‘‘§ 156. Legal Counsel to the Chairman of the Joint Chiefs of Staff

‘‘(a) IN GENERAL. — There is a Legal Counsel to the Chairman of the Joint Chiefs of Staff.

‘‘(b) SELECTION FOR APPOINTMENT.—Under regulations prescribed by the Secretary of Defense, the officer selected for appointment to serve as Legal Counsel to the Chairman of the Joint Chiefs of Staff shall be recommended by a board of officers convened by the Secretary of Defense that, insofar as practicable, is subject to the procedures applicable to selection boards convened under chapter 36 of this title.

‘‘(c) GRADE. — An officer appointed to serve as Legal Counsel to the Chairman of the Joint Chiefs of Staff shall, while so serving, hold the grade of brigadier general or rear admiral (lower half).

‘‘(d) DUTIES. — The Legal Counsel of the Chairman of the Joint Chiefs of Staff shall perform such legal duties in support of the responsibilities of the Chairman of the Joint Chiefs of Staff as the Chairman may prescribe.’’.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 5 of such title is amended by adding at the end the following new item:

‘‘156. Legal Counsel to the Chairman of the Joint Chiefs of Staff’’.
Posted by Dwight Sullivan at 2:06 PM

12 comments:

Anonymous said...

And how "wise" could these men be who didn't tell the President that he had no legal authority to go to war in Iraq. And how "wise" could these men be who can't ensure that post-trial processing is done in a reasonably expeditious manner? And do we really need more generals and admirals? Winthrop did just fine as a colonel.

Mon Dec 10, 09:43:00 AM EST
Anonymous said...

God, you're a spoil sport.

Mon Dec 10, 01:02:00 PM EST
Anonymous said...

Anon,

Please expand. I'm not sure where you're coming from. Thanks.

J. Poon

Mon Dec 10, 06:21:00 PM EST
Dwight Sullivan said...

My gosh, Mr./Ms. Anonymous -- where does one even start? Why not at the end? Colonel Winthrop is known as "Colonel" Winthrop because he was NOT a Judge Advocate General of the Army. Every Judge Advocate General of the Army from 1862 to 1901 was a brigadier general. Every Judge Advocate General of the Army from May 1901 until now has been a major general. I think few would argue with the proposition that the position of Judge Advocate General is more influential today than in the past due to the rise in importance of operational law. Giving the Judge Advocates General the clout of an extra star strikes me as a good idea.

Second, advising the President on the legality of a war doesn't fall within the statutory duty description of the Judge Advocates General.

Third, I doubt many serious legal authorities would agree that the President lacked legal authority to go to war in Iraq.

Fourth, none of the current three Judge Advocates General held that position when the war in Iraq began.

Finally, the three current Judge Advocates General have carried out their duties with both moral courage and wisdom. They have upheld American values and protected the rule of law. When the history of this time is written, they will be counted among the heroes.

Mon Dec 10, 09:21:00 PM EST
Anonymous said...

Well said, CAAFLOG.

Mon Dec 10, 09:59:00 PM EST
Anonymous said...

Heroes who let Guantanamo and torture happen without resigning their stars.

Tue Dec 11, 06:42:00 AM EST
Anonymous said...

In the face of Guantanamo and torture, the JAGs would be well advised to remember what Paster Niemoller once said about the inactivity of German intellectuals following the rise of the Nazis to power:

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for the Jews,
I remained silent;
I wasn't a Jew.

When they came for me,
there was no one left to speak out.

Tue Dec 11, 06:49:00 AM EST
Anonymous said...

I notice that Col (not JAG) Morris Davis resigned from being the chief prosecutor of the military commissions in the face of what he perceived to be a rigged political process involving the convening authority, former CAAF Judge Susan Crawford (is she still able to be a senior judge in this position, or did she have to resign from CAAF?), and DOD General Counsel WIlliam Haynes. Good for him in the face of what he calls, "AWOL Military Justice."

Tue Dec 11, 07:37:00 AM EST
Anonymous said...

Anonymous: Why are you posting 3 consecutive messages in a row? Can't you just put them all in one message? Nobody's had a chance to respond to you yet.

Tue Dec 11, 08:03:00 AM EST
Dwight Sullivan said...

There remains a temporal problem with anonymous's position. Major General Black became Judge Advocate General of the Army on October 1, 2005. RADM MacDonald became Judge Advocate General of the Navy in July 2006. And Major General Rives became Judge Advocate General of the Air Force in February 2006, though I believe that he was essentially the de facto Judge Advocate General starting in December 2004.

What is the particular policy on their watch that would have warranted their resignation? How did they let Gitmo and torture happen? No matter what one thinks of throwing oneself on the pyre as a form of protest, certainly it makes no sense to do so in retroactive protest of a past policy.

And none of those three gentlemen has remained silent. A review of their testimony at congressional hearings will reveal that each has spoken up forcefully in favor of the rule of law. But for their and their predecessors' public pronouncements, I doubt that the McCain Amendment would be law today. And but for their public pronouncements, I have no doubt that the Military Commissions Act would be far worse than it is.

I have certainly disagreed with some positions that some or all of the current Judge Advocates General have taken. But that's America. I firmly believe that each of the three has arrived at his policy choices -- even those with which I disagree -- because he believes it is the correct policy.

They have spoken out against torture. And they have spoken out about military commission proceedings at Guantanamo. I remember watching RADM MacDonald testify to Congress the week after he was sworn in as the Judge Advocate General. It couldn't have been easy for him to publicly disagree with Administration policy, but he did so. He provided a thoughtful and detailed discussion of how classified information is used at courts-martial and why the possibility of similar procedures at commission proceedings wasn't unworkable. His performance reflected not only mastery of the law, but also moral courage. His counterparts in the Army and Air Force have demonstrated similar mastery and courage. I'm sure it makes no difference to them that they, like so many of their predecessors (especially RADM Hutson), are my heroes. But it certainly matters to me.

Wed Dec 12, 12:55:00 AM EST
Anonymous said...

Then you've answered the question, CAAFlog. If JAGs can speak out as 2 stars, why do they need 3? Why not 4? With 4, they would always be at the big table. My point is simple - competence and courage are not measured by stars.

Wed Dec 12, 07:24:00 AM EST
Dwight Sullivan said...

I agree that courage isn't measured by stars. But at the Pentagon, clout is. It is important for the Judge Advocates General to have three stars because then they will have three stars' worth of access to critical meetings and decision makers and three stars' worth of respect. Regardless of whether the number of stars on one's collar SHOULD matter, any objective assessment must conclude that they DO matter.

Wed Dec 12, 08:46:00 AM EST

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