Alan Kaufman responding to my solicitation of views on civil military relations and the JAG

Alan Kaufman, a friend, colleague, and former student of mine way back in the old days at Harvard, and nowadays a senior Navy JAG lawyer who knows way, way more than me on many of these topics, has graciously given a detailed, thoughtful response to the issues raised in my blog post on Glenn Sulmasy and John Yoo's new UCLA article on civilian-military relations. It is in the comments, but I think I will pull up some of the more expert and detailed responses into the main blog as posts so it all doesn't get too long. I'll put a new tag, "civilian-military relations" as well. (I much agree with Alan, by the way, as he says below that Professor David Kennedy's book Of Law and War is well worth reading, likewise, as I've said before on this blog, Jack Goldsmith's The Terror Presidency.) Here is Alan, with my thanks and best wishes as ever:

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Alan G. Kaufman said...

Ken –

I appreciate your invitation to comment. I haven’t read the article yet, only your blog entry, but here are some initial impressions and musings:

I am amazed that Professors Yoo and Sulmasy make the argument that the role of JAG Corps lawyers in providing legal advice to military commanders is evidence of some sort of a breach in civil military relations. Just amazed.

All military officers, including judge advocates, take an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same.

Enlisted personnel take that oath as well, and at least in the Navy, also swear to obey the orders of the officers appointed over them ( to quote: “that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.”).

That last part isn’t in the officer’s oath.

So officers - all officers, not just JAGs -- take an oath not to a person or a to a leader; but rather to the rule of law – the Constitution. Not in the sense of the “rules,” but that in the U.S. the law rules us, not a person.

But the Constitution does set out who is the Commander in Chief, and the culture is to give advice, and then to execute the decision of the Commander, even if contrary to the advice given. Unless the decision is to commit a crime – because to obey an unlawful order is itself a crime. That’s when moral dilemmas can arise . . . but I digress from where I want to go with this.

My impression is that perhaps Professor Yoo’s and Sulmasy’s arguments are part of a general sense among some that Commanders are finding themselves hamstrung by lawyers and legal advice in the headquarters. Professor Jack Goldsmith attempts to get at this in his new book, in which he suggests that law and lawyers restrain too much and too greatly the operational and command discretion of the Commander in Chief and his subordinates – that there are hamstrung by “lawfare.”

I would suggest that they do not understand too well the dynamics that occur between a judge advocate and an operational commander and his battle staff in operations. Their views do not comport with my personal experiences, nor I suspect, with the experiences of most others that have served in that role.

One Commander, a 4 star, whom I served, was fond of making the point that “Lawyers advise, and Commanders decide.” And they don’t always take the lawyers’ advice –but they do use it to understand and assess risk, to decide how much risk to accept, and often to develop strategies to mitigate risk or develop alternative courses of action –just as they do with input from across their staffs (from the intelligence officer, the logistics officer, the operations officer, the policy and strategies officer and others).

There is more, of course, too much to put into a comment on a blog, so of course all of this is a topic that is certainly worth exploring. I don’t think I can agree with Yoo and Sulmasy, either about the breach, or about the role judge advocates play.

I think Goldsmith gets at the issue in his book when he suggests that the President’s decision to go it alone in “making law” for this long war on terror has been a tactical mistake with profoundly negative strategic consequences, both for the power of the presidency, and for success in this fight. We lost legitimacy, and that was strategically unhelpful, both domestically and internationally.

I suggest interested people read Professor David Kennedy’s book, “Of Law and War,” for a different perspective (maybe even read it against Joseph Nye’s discussions of “soft power” to provoke some more thought). Kennedy makes some perceptive points about war, law, strategy and legitimacy.

Law, he suggests, is part of the “geography” in which a Commander must fight. He must understand this landscape, and if possible, shape it for the optimum strategic, tactical and operational advantage.

For example:

“ .. .law is relevant to war . . .The military, like other public and private bureaucracies today, operates in war and peace against the backdrop of innumerable local, national, and international rules regarding the use of me, the financing of arms and logistics and the deployment of force. Taken together, these laws can shape the institutional, logistical, even physical landscape on which military operations occur. Today’s military is also itself a complex bureaucracy whose managers discipline their forces and organize their operations with rules. . . .”

“…. When corporate lawyers assesses the significance of all these laws for a business client, they look not only at the formal jurisdictional validity of the rules. They also assess their likely sociological effect – their likely impact on the client’s business strategy. Who will want to regulate the transaction? Who will be able to do so? What rules will influence the transaction even absent enforcement? And they assess opportunities for the corporation to influence the rules, or to use them in new ways to achieve their strategic objective.”

“ . . . The practice of military and humanitarian law requires complex and shifting predictions about law and fact. Whose interpretation of the law will, in fact, prevail, and before what audience?”

“Law has become more than the sum of the rules; it has become a vocabulary for judgment, for action, for communication. Most importantly, law has become a mark of legitimacy –and legitimacy has become the currency of power.”

“ . . .the laws in force are not necessarily the laws that are valid, in some technical sense, but the rules that are persuasive to relevant political constituencies. Whether a norm is or is not legal is a function not of its pedigree, but of its effects. Law has a effect – is law – when it persuades and audience with political clout that something someone else did, or plans to do, to or is not legitimate. The point is no longer the validity of the distinctions, but the persuasiveness of arguments.”

Sets up some interesting debate, I would guess.

Now let me follow one last tangent. How do Commander’s view their judge advocates, how can we serve them better?

A few years ago, an “Independent Review Panel to Study the Relationships between Military Department General Counsels and Judge Advocates General of September 15, 2004, established in compliance with Section 574 of the FY 2005 Defense Authorization Act,” included the following relevant observations:

• Lawyers at Headquarters and in the field play an important role in the DoD’s combat operations, and commanders increasingly turn to their assigned legal counsel for advice on a wide range of issues.

• Since 9/11 there has been a significant increase in the number and complexity of legal issues arising in joint commands, and in the speed with which those issues must be addressed.

• It is clear from the Commanders who testified that legal advice is essential to effective combat operations – “legal advice is now part of the ‘tooth,’ not the tail.’”

• Operational commanders testified that the rule of law has never been more important and that lawyers are an integral part of their staffs and missions.

• The Commander’s lawyer, sometimes in coordination with Pentagon legal offices, is of particular value in operations occurring outside of familiar legal frameworks, such as those associated with the war on terrorism.

• Every commander who testified stressed the importance, indeed the criticality of having the SJA at his side as part of his leadership team during operations.

• The joint commander’s staff judge advocate is the focal point for all legal issues within the command. • The DoD General Counsel is responsible for providing guidance and resolution when legal issues are elevated above the Unified command level.

• The Chairman’s Legal Counsel plays a pivotal role in facilitating legal support for the joint commands, to include acting as a liaison for the DoD General Counsel.

• Civilian and military lawyers are most effective when engaged early in the process and made a part of the organization’s senior management team.

No doubt people will want to debate whether these observations are true as well as whether, if true, this is good or bad. My concern is a little different. Indeed, I would argue to the contrary of Yoo and Sulmasy, and in light of some of Kennedy’s points, the following –the problem isn’t really about lawyers in headquarters generally, it’s more about having the right, appropriately trained, experienced and educated lawyers, in the right place to b ring influence to bear – as you suggest. We don’t have that now, in my opinion. I argue as follows:

The requirement for judge advocates in joint warfighting commands and on the joint staff to give sound advice in the planning and execution of complex joint operations is extensive and the number of experienced judge advocates needed for current operations in joint missions is growing. Legal support is an integral part of the command and control capability for an operational commander. Moreover, “rule of law” is a national security capability that can produce strategic and operational effects. Operational commanders must have a high level of legal support to fully leverage these capabilities.

One aspect of effective support is having experienced and qualified officers of sufficient rank to integrate effectively with operational staffs and other stakeholders at the highest levels of leadership. While in some cases, force of personality and talent can overcome the challenges associated with a lower than appropriate rank, the fact is that rank matters in the military, and effective performance in critical positions should not be left unnecessarily subject to vagaries associated with personality.

Judge Advocates operating in support of 4 star Combatant Commanders in operational command of joint operations, and in support of the Chairman of the Joint Chiefs of Staff, who is the primary military advisor to the Secretary of Defense and to the Commander in Chief, should hold rank commensurate with these responsibilities. The Military Department Judge Advocates General, who currently hold two star rank, and have great influence through their role as legal advisors to Secretaries of the Military Departments and to the Army and Air Force Chiefs of Staff, and to the Chief of Naval Operations, are nevertheless not in the operational chain of command to which the above findings refer, and so play only an indirect advisory role in the provision of legal advice to the Chairman, Joint Chiefs of Staff, to Combatant Commanders, to the Secretary of Defense, and ultimately to the President in his capacity as Commander in Chief.

In fact, although the Military Department Judge Advocates General have played an increasingly important role in legal policy making in the matter of military tribunals or commissions for unlawful combatants detained in ongoing long war operations, in matters of direct legal support to ongoing operations since 9/11, it is Combatant Command and Joint Force Commander SJAs, and not Military Department Judge Advocates General who have been called upon to brief the President, to testify to Congress, and have been subject to media attention for advice given during the conduct of highly visible combat operations. To be most effective, the Combatant Command (COCOM) Staff Judge Advocate (SJA) and the Legal Counsel (LC) to the Chairman of the Joint Chiefs of Staff (CJCS) should, in my opinion, hold the rank of a general or flag officer.

Currently, outside of the reserve forces, there exist eight one star judge advocates in all of the military departments. None are assigned to combatant command or joint staff billets. The Navy has no judge advocates holding active duty one star rank. The SJA to the Commandant of the Marine Corps is by law a Brigadier General, and is the only Marine judge advocate holding one star rank. In some cases, one star judge advocates are assigned to service component headquarters subordinate to a Combatant Commander even though the Combatant Commander’s SJA is of lower rank. For example, Air Mobility Command, a service headquarters component subordinate to Commander Transportation Command, has a one star staff judge advocate although Commander Transportation Command has a Colonel. This reflects an arguably inappropriate misalignment of judge advocate resources with the operational chain of command.

Similarly, the Chairman of the Joint Chiefs of Staff, who is the principal military advisor to the President and Secretary of Defense, and a member of the National Security Council, has a Colonel serving as his Legal Counsel, while subordinate Army, Navy and Air Force members of the Joint Chiefs of Staff benefit from the direct support of Military Department Judge Advocates General, all of whom currently hold two star rank. The Commandant of the Marine Corps, also a member of the Joint Chiefs, and in that capacity subordinate to the Chairman, has by law a Brigadier General assigned as his SJA, as well as a Senior Executive Service civilian general counsel assigned from the Navy Department’s Office of General Counsel. All of this reflects a misallocation of legal resources at the expense of operational commanders and the operational chain of command.

Some will suggest that this misallocation occurs because neither Combatant Commanders nor the Chairman of the Joint Chiefs of Staff have requested flag or general officer legal support in their manning documents, over which they have complete control. In fact, however, quotas on numbers of flag and general officers who may be assigned to these staffs force Combatant Commanders and the Chairman into a “Hobson’s Choice” requiring the sacrifice of flag or general officer staff support in some other critical staff billet in order to make room for a one or two star SJA or LC.

Instead of passing on this irresolvable resource allocation problem to Combatant Commanders and to the Chairman, a better approach is to require by law that the SJA or LC billet be filled by at least a one star judge advocate (as has been done for the benefit of the Commandant on the Marine Corps, who has by law a Brigadier General assigned as his SJA (see Title 10 section 5046)) and then look to the Military Departments to utilize judge advocate resources more appropriately in support of operational joint commanders and the operational chain of command

.……………….There’s some grist for debate. I stand by for the clobbering I expect if anybody reads this.

AG Kaufmanwho was, and remains, your student