Saturday, May 30, 2009

DOD witness identified for Supreme Court cert jurisdiction hearing

DOD's hearing calendar now indicates that DOD's witness at Friday's House hearing on the Equal Justice for Our Military Act will be "Army-AJAG/MLO," which I assume stands for Army Assistant Judge Advocate General for Military Law and Operations. Does anyone know who that is?

h/t NBM3


Anonymous said...

BG Malinda Dunn.

Dwight Sullivan said...

Thanks! Yet another demonstration of the usefulness of anonymous comments.

Anonymous said...

Yes, and I'm under the impression that you Dwight will also testify? Just curious in what capacity - Marine Corp Reserve JAG, civilian attorney for the Air Force? Both those folks have proffered an opinion on this issue as I understand it, is that consistent with the opinion you intend to offer?

Dwight Sullivan said...

Anon 1144, I support the bill in my personal capacity. If I am lucky enough to have a chance to provide my perspective to Congress, it will be purely in my personal capacity. Do you know what position DOD is taking on the bill? (I don't and I'm curious.)

Anonymous said...

Hummm....I don't know the DOD position on this issue, but I assume given your contacts you should be able to determine the Marine Corps and Air Force position.

Anonymous said...

Personal capacity?

Socrates said...

Anon, what is your question or confusion regarding "personal capacity"?

One's personal capacity is the most powerful position in a democracy. As Jimmy Carter said in his farewell address on January 14, 1981, "I will lay down my official responsibilities in this office -- to take up once more the only title in our democracy superior to that of president, the title of citizen."

Personal capacity is to be distinguished from one's role as an advocate on behalf of a client or cause, or a governmental post, where one defers to official positions.

Are you sneering at the idea that a military officer can have an opinion in his or her "personal capacity"?

For instance, can't I vote for the President's opponent in my "personal capacity," but still obey his orders and honor him?

Dwight Sullivan said...

Yes, Anon 1325, personal capacity. It is well established that a government employee may testify to Congress in his or her personal capacity. See, e.g., 18 Op. O.L.C. 225 (Nov. 7, 1994). After concluding that it would likely be unconstitutional to prevent AUSAs from testifying before Congress in their personal capacities about important matters, O.L.C. (in an opinion by Walter Dellinger, who is brilliant and wise) added: "Although the Department generally may not prohibit AUSAs from testifying before congressional committees in their personal capacities on legislation of interest to the Department, we do not believe that the First Amendment makes impermissible the Department's traditional position that its employees must protect confidential information and must make clear that they are not speaking in their official capacities."

I think such restrictions are eminently reasonable and would, of course, comply with them were I to have a chance to share my views with Congress.

I really can't understand why anyone would have heartburn about the possibility that I might testify to Congress about H.R. 569 or that my personal position might depart from the USMC or USAF position, though I don't know whether that is, in fact, the case. I don't know whether either the USMC or USAF has taken a position on the legislation, if so what that position is, or whether that position is consistent or inconsistent with DOD's position. Moreover, since if I do have an opportunity to share my views with Congress, it would be solely in my personal capacity, the answers to those questions are relatively unimportant to me. But if anyone wants to discuss this with me, I'll be happy to do so. Shoot me an e-mail at and we can swap phone numbers.

Anonymous said...

First, I’m not Anon 1325 (not that it matters). Second, in response to “Socrates” musing, pretty much everyone has a “personal opinion”. That together with 75 cents buys you a coca-cola down at the PX. However, I’ll offer a couple observations and/or comments:
1. Dwight suggests he has no idea what the USMC or USAF position is on this issue. I think it’s safe to say that accepted practice in the military is raise issues with your boss and work your way up the chain. Starting with Congress or the IG might be considered poor judgment.
2. Hard for me to understand why the committee would be interested in any single military attorney’s “personal opinion” on this issue. If so, I suggest that the committee hear from all the military attorneys that either through incompetence, or perhaps already overwhelmed with work, failed to meet the filing deadlines at CAAF (much of which has been documented here at CAAFlog). I dunno, maybe those guys are looking for yet another opportunity to excel, but my guess is not.
3. So you see, in my “personal” opinion, this proposed legislation is just window dressing designed to give everyone a photo op to sell back home showing how they support the troops. Collateral appeal works for the egregious cases (Watada), and beyond that the Supreme Court will not grant any more often than it already does. So some folks might consider it “make work” for empire builders.

Peter Wright said...

With the upmost respect to the supporters of the “Equal Justice for Our Military Act” I must voice my nonsupport of the legislation.

From the post above:
So you see, in my “personal” opinion, this proposed legislation is just window dressing designed to give everyone a photo op to sell back home showing how they support the troops.

I think the name is just window dressing to sell it to the folks back home. Who could oppose a bill called the “Equal Justice for Our Military Act.” It seems like a little bit of Doublespeak. It’s similar to calling one of the destructive weapons ever created the “Peace Keeper.” (Not that I oppose the MX missile, if I hadn’t gone into JAG I wanted to get into Space Command.)

I think there would be less support for the bill if it was more accurately described as a bill that will create yet another level of endless appeals for druggies, thefts, sexual deviates, and military members who have not only disgraced the uniform, but sometimes stained the honor of our entire country (Abu Ghraib, Lt. Calley).

Dwight Sullivan said...

Anon 1142, in my previous comment, I offered to talk to anyone who was concerned about the possibility that I might testify before a congressional committee about H.R. 569. Instead of taking me up on that offer, you chose to anonymously attack my judgment. It's regrettable that you didn't call me instead, because a conversation would have revealed that your attack is predicated on incorrect factual assumptions.

You write, in direct relation to me, "accepted practice in the military is raise issues with your boss and work your way up the chain. Starting with Congress or the IG might be considered poor judgment." Here's the thing. I didn't start with Congress. I didn't initiate any communication with Congress at all. Rather, congressional staff members contacted me, talked about the bill with me, and indicated I might be invited to testify if a hearing was held on the bill. I contacted the Air Force's congressional liaisons, informed them about the call, and advised them what my position on the bill was. I was immediately told that there would be no problem with me testifying in my personal capacity but that I should be sure to make clear that I wasn't testifying in an official capacity or purporting to speak for the Air Force -- basically the same position that O.L.C. took in 1994. As I indicated yesterday, I think such a disclaimer policy is a good one.

I haven't yet received an invitation to testify at Friday's hearing. But if I do, I fail to see why it would be poor judgment to accept such an invitation to share my views with Congress. And since I would expressly NOT be speaking for the USAF or USMC, I fail to see why their positions on the bill (if they even have one) are relevant for purposes of me sharing MY VIEWS with Congress. But I repeat my invitation to discuss this issue with you (or anyone else) if you would prefer to have a conversation rather than launch anonymous aspersions. As always, you can contact me at and we can swap phone numbers.

Dwight Sullivan said...

I'm pleased to report that I've been invited to testify at Friday's hearing on H.R. 569.

Anonymous said...

"Anon" at 11:42,

You offered your 75 cents; now you can get your change back.

Please go see your chain-of-command to get the refund. It would be poor judgment of you to seek the refund elsewhere.