Bush Seeks Control Over Promotion of Military Lawyers

In another outrageous attempt at grabbing power that does not belong to it, the Bush Administration is now seeking to control which military lawyers get promotions:

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.

In a nutshell,

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.

It's our unitary executive at work again. [More...]

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.

The Boston Globe got a copy of the proposed change in regulations, and reports:

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.

Military lawyers should not be controlled by civil 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.

John Yoo may also figures into the picture, even though he says he wasn't informed of the change.

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.

....several retired JAGs said they think the proposed change is an attempt by the Bush administration to turn Yoo's idea into a reality.

While "coordination" is not defined in the proposed regulation, legal experts and JAG lawyers say it's pretty clear what Bush intends:

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.

GWU professor Stephen Saltzburg, whom I've worked on committees with and for whom I have tremendous respect, puts it this way:

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."

This could spell the end for the JAG corps:

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.

Military lawyers have consistently been in the forefront of resistance to the Bush Administration's policies on harsh interrogation techniques, torture and violation of the Geneva Conventions. It really seems like he is now trying to rig the military justice system.

A history of the JAG Corps is here. As TalkLeft reader Terry Kindlon (who emailed me this article)says, "More confirmation that, at long last, these guys have no sense of decency.

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  • Display: Sort:
    Not so cynical any more (none / 0) (#1)
    by manys on Sun Dec 16, 2007 at 02:42:24 PM EST
    It seems apparent that their goal is to break the government. The conservative irony (people who don't like government running for office) can only be resolved if you consider that ruining the government is a modern way to remove its influence. The conservatives are cracking the system.

    He keeps going after the lawyers (none / 0) (#2)
    by Edger on Sun Dec 16, 2007 at 03:41:01 PM EST
    and the judicial system.

    He knows that it is the lawyers who will eventually nail him to the cross...

    Now vs. Army/McCarthy (none / 0) (#3)
    by Scarabus on Sun Dec 16, 2007 at 05:55:18 PM EST
    Joseph McCarthy's evil was quashed when the politician started messing with the military. Is today's military leadership going to stand strong...or are they going to kow-tow to the draft-dodger?

    You know (1.00 / 0) (#5)
    by jimakaPPJ on Mon Dec 17, 2007 at 09:09:07 AM EST
    you really should learn to not make such statements about Bush. Leave it or like it he joined the TANG to be trained as a pilot and did so. Now you can argue all you want about various things, none of which have been proven true.

    You should also do more studying of McCarthy. His base claim that there were communists in the US government was true, and has been proven. His tactics were bad, but then he was in a pis*ing contest with the Left and, as in most fights, there is a lot of distortion by one and all.

    What is really at issue here is simply this:

    Do you want more or less control of the military by the ELECTED civilian leaders? Be careful what you choose because I well remember some of the things that members of the military said about Clinton.

    One of the biggest problems a "professional all volunteer" military has that it is easy for such an organization to develop an "us against them" attitude. When you couple that with a "they must save us" from the "evil... (insert whatever name you like)who us destroying the country" then you have all the makings of a coup.

    "Be careful what you ask for because you may get it" remains one of the wisest sayings of mankind.


    It is already political (none / 0) (#4)
    by Abdul Abulbul Amir on Mon Dec 17, 2007 at 07:58:04 AM EST
    Military lawyers should not be controlled by civil appointees.

    Wow!  In a democracy, the military should always be subordinate to civil authorities.

    In case you thought otherwise, the process is already political.  The question is should those making political decisions be accountable to the electorate or to an insulated officer class.

    The two most significant factors in an officer's promotion records are inarguably their fitness report(s) and level of responsibility in their current and past assignments. Because of this, many people consider the officer promotion system to be very "political," in nature. A "blah" fitness report can result in being "passed over."


    If your fitrep classes you as merely "walks on water occasionally gets ankles wet" as opposed to the much more favorable "walks on water never gets soles of shoes wet" you are toast.

    The comment belies the obvious - (5.00 / 1) (#6)
    by scribe on Mon Dec 17, 2007 at 09:58:38 AM EST
    that the site's friend Abdul has at best only passing acquaintance with the way the military works, from the inside, and less about how officer evaluations or fitreps work.


    For a JAG they may be even more important as many of the leadership activities that line officers have are just not available.

    hey... (none / 0) (#8)
    by diogenes on Mon Dec 17, 2007 at 07:10:06 PM EST
    Anything that keeps Hillary from controlling military lawyers is fine by me.