December 15, 2007 – 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.”
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 Conventions 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.
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 “coordination” 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.
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 administration. 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 administration 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.