Monday, May 26, 2008

Three stars for three wise men update

A tip o' the hat to the friend o' CAAFlog who has provided us with some important updates concerning the impending three star status of the Judge Advocates General.

We previously noted DOD OGC's request that the DOJ Office of Legal Counsel opine as to whether presidential action and/or Senate confirmation is necessary to elevate the three incumbent Judge Advocates General to three-star status. Here's a link to that request.

On 14 April 2008, OLC provided the requested advice. Here's a link to that memo. OLC contended that it was beyond Congress's constitutional power to effectively elevate the incumbent Judge Advocates General to a higher grade, thus requiring that either: (1) the current Judge Advocates General serve out their terms at their current grades, to be replaced by successor Judge Advocates General who would be nominated to serve as Judge Advocate General and nominated to three-star grade; (2) the President, if he so chooses, nominate one or more of the current Judge Advocates General to three-star grade; or (3) the President choose to replace one or more of the current Judge Advocates General with successors who would also be nominated to three-star grade. While working on Weiss v. United States, 510 U.S. 163 (1994), under Alan Morrison's tutelage, I learned far more about the Appointments Clause than any reasonable lawyer would want to know. From that vantage point, OLC's advice strikes me as legally correct.

In the wake of OLC's memo to DOD OGC, on 24 April 2008, Deputy Secretary Gordon England sent the service secretaries this memo indicating that Secretary Gates would propose to the President that he nominate each of the current Judge Advocates General to three-star grade. The Deputy Secretary asked the service secretaries to provide appropriate nomination packages.

In other military law star news, each House's DOD authorization bill would elevate the Staff Judge Advocate to the Commandant of the Marine Corps to the grade of major general. But there is a difference between the House and Senate versions. The Senate version, which is § 507 of S. 3001, would exempt this two-star position from the number of major generals that the Marine Corps is statutorily permitted to have; the House version, which is § 551 of H.R. 5658, would require the Marine Corps to take the position out of hide.

The House passed its DOD authorization bill on 22 May. The Senate bill is pending consideration on the Senate floor.


Anonymous said...

Why not 3 stars for the Marine? Equal protection, due process, and fundamental fairness - all seem to apply. And he is in charge of CAAF's warrior elite.

Anonymous said...

When the Marines do away with a 3 star infantry general they can promote the SJA to the Commandant.

Anonymous said...

Oddly, William Haynes left as DoD GC in February 2008. I am sure this time line is purely a coincidence.

egn said...

Anon 11:57--
Regardless of your speculation regarding Mr. Haynes's bias in this issue, the reality is that he submitted the request for an opinion in Jan 2008. If you know the slow pace at which these things move, then you'll also realize that it would've been virtually impossible for OLC to have gotten the opinion in before Mr. Haynes's departure in Feb 2008.

April 2008, reflecting a 3-month turnaround, seems about right.

Anonymous said...

As I understand it, the SJA to the Commandant is a staff officer just like the SJA to a commander. As such, why would he need a 3 star general as his SJA? The CNO does not have a 3 star admiral as his SJA nor does the Chairman. So when I hear about disparity between Navy and Marine FOGOs I am often bewildered. Maybe it is me but I've never understood that.