Publication: Progressive Review
Control Sought on Military Lawyers | |
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THE PROGRESSIVE REVIEW - December 24, 2007
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Control Sought on Military Lawyers
By Charlie Savage
The Boston Globe
Bush wants power over promotions.
Washington- 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.
The former JAG officers say the regulation would end the
uniformed lawyers' role as a check-and-balance on
presidential power, because politically appointed lawyers
could block the promotion of JAGs who they believe would
speak up if they think a White House policy is illegal.
Retired Major General Thomas Romig, the Army's top JAG from
2001 to 2005, called the proposal an attempt "to control
the military JAGs" by sending a message that if they want
to be promoted, they should be "team players" who "bow to
their political masters on legal advice."
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It "would certainly have a chilling effect on the JAGs'
advice to commanders," Romig said. "The implication is
clear: without [the administration's] approval the officer
will not be promoted."
The new JAG rule is part of a set of proposed changes to
the military's procedures for promoting all commissioned
officers, a copy of which was obtained by the Globe. The
Pentagon began internally circulating a draft of the
changes for comments by the services in mid-November, and
the administration will decide whether to make the changes
official later this month or early next year.
The JAG rule would give new leverage over the JAGs to the
Pentagon's general counsel, William "Jim" Haynes, who was
appointed by President Bush. Haynes has been the Pentagon's
point man in the disputes with the JAGs who disagreed with
the administration's assertion that the president has the
right to bypass the Geneva Conventions and other legal
protections for wartime detainees.
A Pentagon spokeswoman said that Haynes was traveling and
unavailable for an interview, and she did not respond to
other written questions submitted by the Globe. In the
past, Haynes has made several proposals that would bring
the JAGs under greater control by political appointees.
As part of the uniformed chain of command, the JAGs are not
directly controlled by civilian political appointees. But
Haynes has long promoted the idea of making each service's
politically appointed general counsel the direct boss of
the service's top JAG, a change Haynes has said would
support the principle of civilian control of the military.
One of Haynes' allies on the Bush administration legal
team, former Justice Department lawyer John Yoo, recently
coauthored a law review article sharply critical of the
JAGs' unwillingness to endorse the legality of the
administration's treatment of wartime detainees.
Yoo, who wrote a series of controversial legal opinions
about the president's power to bypass the Geneva Con-
ventions and antitorture laws before leaving government
in 2003, called for some kind of "corrective measures"
that would "punish" JAGs who undermine the president's
policy preferences.
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Yoo's law review article did not specifically discuss
injecting political appointees into the JAG promotions
process, and Yoo said in an e-mail that he did not know
anything about the new Pentagon proposal. But several
retired JAGs said they think the proposed change is an
attempt by the Bush administration to turn Yoo's idea
into a reality.
Under the current system, boards of military officers
pick who will join the JAG corps and who will be promoted,
while the general counsels' role is limited to reviewing
whether the boards followed correct procedures. The
proposed rule would impose a new requirement of "coord-
ination" with the general counsels of the services and
the Pentagon during the JAG appointment and promotion
process.
The proposal does not spell out what coordination means.
But both JAGs and outside legal specialists say that it
is common bureaucratic parlance for requiring both sides
to sign off before a decision gets made - meaning that
political appointees would have the power to block any
candidate's career path.
"It only makes sense to put this in if you want [general
counsels to exercise the power to give] thumbs up or
thumbs down, in order to intimidate JAGs," said retired
Colonel Gordon Wilder, who was the Air Force's top JAG
specialist in administrative law until last January.
Stephen Saltzburg, a George Washington University law
professor who is also general counsel to the National
Institute of Military Justice, agreed that the regulation
boils down to giving political appointees the power to
veto JAG promotions.
"The message would be clear to every JAG, which is that
when you have been told that the general counsel has a
view on the law, any time you dare disagree with it,
don't expect a promotion," Saltzburg said, adding "I
don't think that would be in the best interest of the
country. We've seen how important it can be to have the
JAGs give their honest opinions when you look at the
debates on interrogation techniques and the like."
Key members of the Bush administration legal team have
pushed to subject the JAGs to greater political control
for years.
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In the early 1990s, both Haynes and Vice President Cheney's
top aide, David Addington, were politically appointed
lawyers in the Pentagon during the Bush-Quayle administ-
ration. On their advice, Cheney, who was then the defense
secretary, proposed making each service's general counsel
the boss of his JAG counterpart, but the Senate Armed
Services Committee forced the administration to back down.
In 2001, Haynes and Addington were restored to power in
the Bush-Cheney administration, and the conflict over JAG
independence resumed amid the fights over such war on
terrorism policies as harsh interrogations.
Responding to the conflicts, in 2004 Congress enacted a law
forbidding Defense Department employees from interfering
with the ability of JAGs to "give independent legal advice"
directly to military leaders. But when President Bush
signed the law, he issued a signing statement decreeing
that the legal opinions of his political appointees would
still "bind" the JAGs.
And throughout the past several years, the administration
has repeatedly proposed changes that would impose greater
control over the JAGs, such as letting political appointees
decide who should be the top service JAGs. Each previous
proposal has died amid controversy in the Pentagon or
Congress.
The new proposal goes further than anything the administr-
ation has pushed before because it would affect all military
lawyers, not just the top JAGs. Retired Rear Admiral Donald
Guter, the Navy's top JAG from 2000 to 2002, said the rule
would "politicize" the JAG corps all the way "down into the
bowels" of its lowest ranks.
"That would be the end of the professional [JAG] corps as
we know it," Guter said.
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