Saturday, December 15, 2007

Important article from the Boston Globe

NIMJ's web site features a must-read article by Charlie Savage in today's Boston Globe. Here's a link. Here are the article's first three paragraphs, which will give you an overview of the piece:

The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House's policies toward prisoners in the war on terrorism.

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.

A Pentagon spokeswoman did not respond to questions about the reasoning behind the proposed regulations. But the requirement of coordination - which many former JAGs say would give the administration veto power over any JAG promotion or appointment - is consistent with past administration efforts to impose greater control over the military lawyers.


Anonymous said...

The president is already in the approval chain for O-4 and above promotion boards, as are SECDEF and SECNAV, so how does this actually change anything? We serve as commissioned officers at the pleasure of the president, do we not?

John O'Connor said...

I find it funny that the Founders, and most people (I think) believe that civilian control over the military is crucial as a moderating force against extremism within the military, while a good number of people today are pushing for more military cobntrol over the military as a means of moderating extremism from the civilian leadership. It seems to me that one should put his political leanings to the side on an issue like this and think about whether this proposed change would be a good idea in general.

In my estimation, injecting the service GC offices in promotion issues for all JAs is an uncommonly bad idea. Civilian control of the military is best achieved at the highest level, with the uniformed leaders answering to the service secretaries and the President. Below that level, an injection of civilian oversight (by elements of the civilian government lower than the service secretaries) muddies the chain of command for JAs. A wise man once said that military necessity requires unflinching and immediate obedience to orders, and I think it's best that JAs be clear that they report (and must plase) the uniformed officers in their chain of command, rather than having an eye on a political appointee in the GC's office. This is particularly true where, as here, a significant percentage of the officers at issue (the detailed defense counsel) are asked to oppose the government every day in everything they do.

Obviously, politics can be involved in propotion decisions (particularly at the higher levels) even under the current system, but I think regularizing oversight on promotions at a level below the service secretary level is a bad, bad idea for the judge advocate community.

Mike "No Man" Navarre said...

Eloquently put JO'C. I have nothing to add, you beat me to the punch.

John O'Connor said...

Well, except for the typos. Someday, I'll develop the attention span to proofread my posts.

Anonymous said...

It might be nice at some point in time that we actually have a Chief Judge (either trial or appellate level) that is a flag/general officer...even upon retirement.

Anonymous said...

Based on the article, I find this proposal strange too, but mostly on the basis of what anonymous #1 points out: DoD, the President, and Congress already have ample authority/opportunity effectively to scuttle the promotion of any officer, for virtually any or no good reason. At least since Tailhook, the authority has been fairly regularly exercised. I seem to recall there's even a senior Navy JAG commander's promotion that has been held up for years, based on politics as I understand it.

So why "target" JAGs now and why require no more than mere "coordination"? Even if the proposal were expressly designed to advance the agenda feared by its critics, it seems a rather needless and inefficient means towards that end. (But then, again, we have also been given the military commissions.)

Still, I'd be interested in hearing the details of the proposal and DoD's rationale behind it. Any chance that it could actually improve the system, for example, by facilitating uniform standards of competency, training, detailing, etc. for uniformed lawyers across the services?


John O'Connor said...

Tell me about politics and Tailhook; it delayed my promotion to captain.

An ALMAR had come out when I was toiling away in law school requiring all First Lieutenants on the captain list to send in a letter stating whether they had been at Tailhook. At the time, I had (at best) a tenuous connection to the reserve unit to which I was technically assigned, and nobody bothered to tell me about the ALMAR. So when my number came up, I just got skipped until I figured out the problem, and it then took several months to get my promotion (though it was retroactive).

Anonymous said...

Perhaps the relative independence of the TJAG/OJAG in the past few years has ruffled a few feathers in the civilian leadership. A SECDEF who made no bones about his contempt for the "interference" of those pesky lawyers. [Or to paraphrase: Will no one rid me of these meddlesome lawyers?].

Justin said...

Charlie Savage cites a recent law review article written by John Yoo that called for action against out-of-line JAGs. I just read the article, available here:

Has anyone else read it? No disrespect intended to LCDR Sulmasy, the co-author, but did anyone else think it was thinly referenced?

Specifically, the following excerpt, in which a rather serious charge was levied without citation:

"Indeed, it need not be only Congress that the military may seek to involve. Expanding the role of the courts would have the effect of further dividing the principal and rendering it less likely that it will set policy or punish a shirking military. We can see this dynamic at work in two actions undertaken by some JAGs who opposed President Bush’s decisions on the applicability of the Geneva Conventions and the use and structure of military commissions. First, after failing to prevail in their view that the Geneva Conventions provided POW status to members of al Qaeda or Taliban captured during the 2001 fighting in Afghanistan, several JAGs apparently went in secret to private attorneys to urge them to bring suit on behalf of detainees held at Guantanamo Bay. JAG attorneys representing enemy combatants subsequently challenged the legality of their clients’ detention in federal court. Military officers with different policy preferences sought to introduce the judiciary as another actor to disrupt the unified decisionmaking of the principal."

Again, no cites for any of the above.

Maybe I'm far outside the mainstream, living and working as I do in Capitol Hill as a military prosecutor, but I don't think my brother and sister JAGs went to the courts in the GTMO cases to "further divid[e]" a unitary Executive or to "render[] it less likely that [the Executive] will set policy or punish a shirking military."

Which JAG, exactly, was shirking?

Better yet, which JAG went to the courts because he/she had a beef with Pres. Bush, rather than a legitimate interest in zealous advocacy on behalf of a client?

Consider the alternative: a JAGs who chooses not to pursue all best measures on behalf of his client because, in the JAG's estimation, such inaction is more aligned with the President's policy.

I haven't spoken with Mr. Yoo, but his public writings indicate that he would prefer such a scenario to, say, a habeas petition.

With regard to the backroom maneuvering by JAGs trying to get into federal court, either by themselves or through (gasp) "private attorneys," isn't it odd that the authors throw this blanket allegation at officers who had "different policy preferences" and was an effort "to disrupt the unified decisionmaking of the principal"?

Isn't that like saying the defense counsel who advises his client to refuse mast and plead not guilty at court-martial has a "different policy preference" from the convening authority and wants to "introduce the another actor" -- the pesky court -- to "disrupt" the CA's decisionmaking?

egn said...

I just read Mr. Yoo's article this morning, and my sentiments echoed those of Justin. Moreover, I find it a pretty ridiculous that Mr. Yoo chose to "explain" the difference between JAGs' and their civilian leadership's perspective thus:

"First, JAGs have been influenced in part by nongovernmental organizations in the human rights arena. These organizations sharply
criticize the U.S. government and military operations conducted in the War on Terror and characterize U.S. strategic and tactical decisions as violating moral as well as legal principles. Second, JAGs are responsive to the American legal academy, which also continues to criticize many operations in the War on Terror as violations of both U.S. constitutional law and international norms. Third, JAGs cannot help but see that the War on Terror has produced deep divisions among political parties and groups in civilian society."

If anything, I would say the traditional view is that uniformed lawyers are a more insulated community than their civilian leadership, ergo, less subject to those outside influences cited in the article. And I would hope that to be the case, or else, what is the point of having civilian oversight if not to keep the military in touch with the rest of society?

John O'Connor said...

I found the Yoo article less problematic than I thought I would from the way it had been described, but I do have one pretty major beef. In detailing the instances of JAGs allegedly shirking their obligation to further the President's initiatives, the article fails to distinguish between three types of situations: (1) JAGs acting to further their clients' interests when serving as a defense counsel; (2) JAGs providing testimony to Congress; and (3) other instances where JAGs take actions harmful to Presidential initiatives, such as dealings by non-defense counsel with the media or public interest groups.

Defense counsel are institutionally charged with defending their clients' interests even when those interests diverge from the Administration's interests. I don't see a defense counsel "conspiring" with civilian lawyers to challenge the President's views on habeas for detainees as interfering with the notion of the unitary executive (a notion to which, as properly understood, I subscribe).

I also have no problem with JAGs giving truthful testimony to Congress, even if that truthful testimony is that the Administrration's policy is wrong or a bad idea. Congress has a constitutional right to regulate the armed forces, so if an officer is permitted to testify before Congress, Congress has a right to the officer's true opinions.

I do have a problem with non-defense counsel JAGs undermining Administration policies by criticizing them publicly in fora other than congressional testimony or through secret or non-secret dealings with organizations mobilizing to oppose Administration policies.

To me, the failure to limit the "problem" of officer "shirking" to the third scenario is a weakness in the article's analysis.

Justin said...


Agreed. Well-put.

With any of those above scenarios, though, shouldn't the article cite one or two specifics, so that the reader knows what the authors mean by way of example? I honestly don't know who they're referring to when they write that "officers with different policy preferences sought to introduce the judiciary as another actor to disrupt the unified decisionmaking of the principal."

Instead, it reads as an argument by sneered-lip rather than logic.

Guert Gansevoort said...

I suspect that Mr. Yoo provided no citation because he had none. Could he have been referencing the Hamdan decision, where Charlie Swift conspired with civilian lawyers to advance his client's interest? Or was he referring to the opinions of the Judge Advocates General, who advised their client, the civilian leadership, that the commissions system and treatment of detainees was "illegal." Maybe the evidence for the conspiracy comes from the Supreme Court's declaration in Hamdan that the military commissions were in fact "illegal." While it is possible that the Judge Advocates General conspired with alleged alien enemy combatants like Hamdan, faceless NGO's, civilian lawyers, and Supreme Court justices to frustrate the "unitary executive" advanced by Mr. Yoo, it is also possible that Mr. Yoo resents standing squarely on the wrong side of history opposite judge advocates who remain steadfast in their belief in the rule of law.

I fear that the new proposal sets the stage for a modern day night of long knives, where the "unitary executive" can now purge "disloyal" JAGs and bring them in line with those who remain at state and justice.

Anonymous said...

Pentagon backs off politicizing JAG promotions

By Rick Maze - Staff writer
Posted : Tuesday Dec 18, 2007 18:35:38 EST

An attempt within the Pentagon to politicize promotions for military judge advocates general appears to have been blocked after protests from military lawyers and threats from key lawmakers.

The plan, which called for “coordination” with the civilian general counsels of the services and the Defense Department for the promotion of any JAG officers, had been circulated in the Pentagon since November but ran into a serious roadblock Tuesday when key members of Congress learned about the details.

For promotions to O-6 and below, the proposed policy required coordination with the chief civilian lawyer of each service, the service general counsel. For promotions to flag and general officer rank, the proposal called for coordination with the Defense Department general counsel.

DoD General Counsel William Haynes had planned to hold a meeting this Friday with the service judge advocates general to discuss the proposal, but sources in the Pentagon and in Congress said if a meeting is held at all, it will be to try to heal the wounds the proposal caused.

“This is one of the dumbest ideas I have ever heard come out of the DoD general counsel,” said Rep. Steve Buyer, R-Ind., an Army Reserve JAG officer and former chairman of the House Armed Services Committee’s subcommittee on military personnel.

“It is dead on arrival. If they enact the policy, and it appears they can, I promise we will stop it.”

Eugene Fidell, president of the National Institute of Military Justice and a senior partner at Feldesman Tucker Leifer Fidell, said the proposal clearly was an attempt to stifle military lawyers who have criticized Bush administration policies on torture and the rights of detainees held at Guantanamo Bay, Cuba.

“Against the backdrop of the events of the last several years, it’s hard to see this as anything other than payback for the independence of the JAG corps,” Fidell said. “I’m talking about the torture memos [and] the feisty independence that many JAGs have displayed over the last several years.”

Another military lawyer in Congress, Sen. Lindsey O. Graham, R-S.C., said the Pentagon initiative concerns him because it could lead military lawyers to be “looking over their shoulders” when proving legal advice to commanders.

“I do not want to interfere with legal advice given to commanders and military personnel,” said Graham, an Air Force Reserve judge advocate. “Having a military lawyer serve two masters is a bad thing.”

Sen. Ben Nelson, D-Neb., chairman of the Senate Armed Services personnel subcommittee, said, he hopes the Pentagon realizes it cannot add a new wrinkle to getting promoted without congressional oversight.

“Whatever change they may propose is subject to approval by the Senate Armed Services Committee,” he said.

The Armed Services Committee not only has the power to rewrite promotion law but also is responsible for approving the promotions of every military officer in the grades of O-4 and above. If displeased, it could bring all promotions to a screeching halt.

A Nelson aide said a few phone calls appeared to do the trick. “I believe we have already stopped it,” said the aide, who asked not to be identified.


Staff writer Erik Holmes contributed to this report.