Thursday, February 12, 2009

Military/Uniformed Lawyer Glasnost

For those that might have seen in the past 8 years a period of conflict between civilian DoD (and Executive Branch) lawyers and uniformed lawyers, see e.g. comments from various folks here and here, I think Tuesday's memo from new DoD General Counsel Jeh Charles Johnson should begin a period of glasnost. Summary - I respect the uniformed lawyers and hope to work together with you. Memo here, h/t to Navy OJAG, Code 08 for posting.

15 comments:

Bridget said...

Hooah.

Phil Cave said...

This is an excellent development.

RADM Guter and others are correct, I believe, in saying that then current and former JAG officers were consulted on developing rules for the military commissions; and, I believe, correct that they were likely told that the Pentagon didn't want to hear disagreements, rather were looking for "buy-ins," and that suggestions for improvement (meaning more or better rights) were likely not too welcome. See, "so they could claim military attorneys had been consulted," in the ABC story.

Mike "No Man" Navarre said...

Thank you Bridget. More Army lurkers please!

Bridget said...

Yeah, but I live in San Diego, so I speak Marine and Sailor pretty well.

Anonymous said...

Too bad the military lawyers never stood up against the war in Iraq. If they had, then perhaps we wouldn't have had the Gitmo/commission flail-ex.

Anonymous said...

Anon 0637. Well you had other Officers within DoD with more stars on their shoulders than any military lawyer who were, before the decision was made, advocating against committing ground troops to Iraq and their position did not carry the day, what makes you think a few, then 2-stars, in the staff community would have been able to alter the ultimate decision?

Oh, your relying on the "military operations on the ground in Iraq (as opposed to our near constant air operations) will be illegal despite the proclaimed UNSCR violations" argument? Yeah, Colonel Fiscus would have been able to prevent that, just read his web site.

Anonymous said...

You don't have to prevent it. You resign in protest. I understand that those in Congress didn't have the guts to vote against a war in Iraq. And I understand that the servicemembers in the combat specialties would go to war in a heartbeat. But I expect more out of military lawyers. So what was the legal basis for the war in Iraq. Self-defense? No. UN authorization? No. Prevention from imminent attack? No. Nation building? That's the ticket - just not a legitimate one.

Dwight Sullivan said...

Anon 0637's argument is, uh, counterfactual. The Bush Administration had already decided to pursue the military commissions route in November 2001. Guantanamo Bay began to be used as a detention facility in January 2002. The second Iraq war didn't start until March 2003.

Aside from the factual problems with the argument, whether to go to war in Iraq was a political and strategic decision, not a legal issue. It would have been improper for military lawyers to stand up against the Iraq war. Rather, it was and is their duty to execute the lawful decisions of the national command authority. Military lawyers generally performed that mission honorably and admirably and continue to do so today, often at great personal cost.

egn said...

Anon 0637, the "Gitmo/commissions flail-ex" stemmed directly from operations in Afghanistan, not Iraq. Most Iraqis detained during OIF were kept in Iraq and tried in courts there. Why do you think the Navy and Air Force were deploying so many JAGs to TF 134 the last several years?

Next time, before you go making condemnations, please get your facts straight.

Anonymous said...

Neither war had a legal basis. I trust the Obama administration will correct these injustices. The "war on terror" is just a means to justify US imperialism. And you all probably think that the bailout is constitutional as well. Military law is to military music...

egn said...

Anon 0637 et seq (I assume you're the same person):

If you're a lawyer at all, I guess you're of the ilk that never lets facts get in the way of good polemic, eh?

Many here would sympathize with the position that as a policy matter, we should not have gotten mired in Iraq. Nonetheless, Congress voted to authorize use of force there (it's open to some interpretation, and use of that authorization combined with UNSCR 1441 to justify invading Iraq was the subject of significant controversy in the U.S. and internationally). Yet to broadly pronounce that Afghanistan had no legal basis? Maybe you started burying your head in the sand way back on September 13, 2001, the day before both houses of Congress voted to pass the Authorization for Use of Military Force? Because that was an actual law, and laws pretty much suffice as "legal basis" for most folks, unless contrary to the Constitution (which this was not).

Whatever your gripe is with the Bush administration and its policies, to direct your ire at military lawyers is sorely misguided at best. Direct it at your congressional representative or senator, who likely voted for that law -- unless your representative was Barbara Lee, the only person who voted against it.

Cully Stimson said...

Jeh Johnson was wise to send out the memo. Jeh is not new to the Pentagon, and is keenly aware of the need for trust and respect between the DOD General Counsel’s Office and the uniformed JAGs. Some of the Judge Advocate Generals have known Jeh for years. They like and trust him. He is an experienced, honorable man, and they know it.

I completely agree with Dwight’s (0751) comments, especially his point about the decision of going to war in Iraq being a political/strategic decision, not a legal one.

The Department would have been wise to take the various JAG’s advice with respect to military commissions the first time around. The JAGs were essentially excluded from the process, and that was wrong.

Now, some facts: with respect to the MCA 2006, I was in office in 2006 when the MCA 2006 was written, and the implementing rules were drafted. The Navy General Counsel, the Honorable Frank Jimenez, was tasked with overseeing the drafting of the rules. The “working group” included numerous distinguished active duty JAGs who were litigation experts. They provided their best advice to Frank, who in turn got input from other stakeholders in the Department.

Ultimately, the product was a synthesis of the working groups thinking, and other attorneys across the interagency. Most of us did not get everything we wanted in the MCA 2006, but it is not correct to suggest that the JAGs did not have buy in the second time around. The Administration not only rejected some of the JAGs advice, they also rejected my advice with respect to the deficiencies of the MCA 2006 and the rules implementing the Act. That said there comes a point where legal advice stops, and political calculation and policy considerations take over.

Jeh’s memo is a great start.

Anonymous said...

Cully,

When you say that "the product was a synthesis of the working groups thinking, and other attorneys across the interagency" you make me think of my favorite relevant saying:

None of us is as stupid as all of us.

Anon 0637, quit while you are behind.

Anonymous said...

Do we still need uniformed lawyers? Why not just use civilian counsel throughout DoD? That would solve any turf war.

Anonymous said...

Other than certain statutory requirements for uniformed attorneys, and other aspects related to the law of war, no we don't need those suckwads.

Hell. I don't want to be what the enemy considers an illegal combatant vessel because many of the crew, including the legal advisor, are not a uniformed member subject to discipline of the CO.