Sunday, September 23, 2007

US military-civilian relations, Glenn Sulmasy and John Yoo's new article, and a solicitation of reader views

Glenn Sulmasy, JAG and law professor at the US Coast Guard academy, and John Yoo have published a new article in the UCLA law review, "Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror," 54 UCLALR 1815 (August 2007). (Thanks Andrew for the link.) (I've cleaned up some grammar and added some bits.)

Let me say at the outset that I am not concerned in this post with views on John Yoo, his work in government, the torture memos, or his views of executive power. I am not particularly concerned in this post with rational choice theories, either (I myself don't especially agree with their application in this article). It is not the theoretical account or answers Sulmasy and Yoo give - with apologies to the authors - that seems to me important here.

This article should perhaps be read as the public opening of a debate, within the legal academy and I hope more broadly, over a fissure (fissures, more exactly) that might be thought to exist under the surface of civilian-military relations. I think that I, at least, have been informally seeing some indication of this since even before 9-11 [added: ;others might well think, as Alan Kaufman does in the comments, that this is not really the case and even perhaps, KA speaking again and not Alan, that John is extrapolating too much from his personal experience in the Bush administration being opposed by military lawyers]. Still, I will say that in my work as a professor with a number of students going into the JAG, but even before, as a NGO person who had worked extensively with (and frequently against) many US military lawyers both junior and senior on various law of war issues such as landmines, etc., over several decades, I long had the strong but anecdotal impression that there were odd gaps between JAG culture and the rest of US military culture, and various strains and strands within JAG culture itself. I did not pay it much mind in earlier years, figuring this had always been true in the military. I also didn't pretend to understand it within military culture.

But 9-11 caused me to pay much closer attention, as various controversies in the war on terror brought these and new strains much closer to the surface. Not ever having been in the military or JAG, I have never had confidence in my ability to analyze these relationships. I don't now. but I do think now that they are of sufficient public importance that they need to be taken up by the general intellectual community. Perhaps I am wrong about their importance and overestimate the actual controversies and fissures, and perhaps John is simply extrapolating too much from his own experience; I solicit your views on this below. But first let me make a few more not-very-well organized comments and offer two excerpts from the article.

I always thought, on the one hand, that the professional military lawyers were substantively right in their initial conclusion, contrary to Gonzales' White House counsel's office, that the Geneva Conventions applied. I don't think the administration's civilian lawyers, in the first flush after 9-11, understood that their professional military lawyers were not saying that captured Al Qaeda would be POWs, but instead merely that if the administration treated the attack as war, then the overall regime of the laws of war of course applied - with the result that under GC3, Al Qaeda would turn out to be unprivileged belligerents or unlawful combatants. Some highly experienced law of war experts inside the military would eventually conclude (following the "gap" argument about GC3 and GC4) that they should be treated instead as spies and saboteurs under GC4, but no one so far as I know suggested that they would be POWs, and the White House lawyers did not have the background knowledge really to understand that (the role of David Addington in this debate is unknown to me, but I do wonder). (Possibly I am wrong about that and there were professional laws of war lawyers in DOD arguing that they were POWs who could then be tried - so far as I know, however, although perhaps some later reached that conclusion as they became unhappy with what military commissions gradually turned out to be, it was not the initial advice from DOD lawyers.)

My impression, in any case, of the White House counsel's office was that rather than calling the professionals at DOD, its lawyers started flipping through the Geneva Conventions for the first time in their professional careers. I know some of these lawyers and have great respect for them, but I think they reacted quite wrongly in thinking that they could quickly come up with the necessary expertise and sound practical judgment. I was appalled that senior Pentagon lawyers were so thoroughly sidelined by the adminstration. The administration and the country paid the price for that - and still are.

On the other hand, I have been surprised and dismayed by the public vehemence with which some JAGs have fought the very idea of military commissions - highly invested, as Jack Goldsmith observes in his new book in the arena to which they are accustomed as criminal lawyers, the Uniform Code of Military Justice, and seeking and finding support among NGOs, military law groups, and other places outside the structure of government. I have been particularly astonished, although perhaps I should not be, at the extent to which - in my anecdotal experience, to be sure - some JAG defense lawyers have bonded with the various and often times altogether radical civilian and NGO defense groups for Guantanamo detainees. And let's be blunt; there are also post-JAG career issues here, too - these all merge with strongly held, sincerely held moral views about the rule of law and how trials should proceed that can sometimes condition one's fundamental identity, as a lawyer and a JAG.

Maybe that's a good thing, not a bad thing - I am not here judging it, because I do not have a clear sense of how a military lawyer's professional roles interact in every way. But I do think it bears talking about it if people think it is something that is occurring in the interaction of the JAG and the war on terror. Maybe it isn't, not really, or maybe it has long been an accepted part of the professional role of JAG officers as lawyers - still, speaking as an outsider, the current alliances, interactions, and public exposure are all really, really different from anything I ever saw in my interactions with the JAG working in NGOs. I have likewise been struck by how much certain JAG defense lawyers seemed to have internalized the use of media as a defense tool, even within an altogether different military system, and even in ways that deliberately politicize issues, to the point of making them quite nakedly anti-administration and OJ-defense-team-like.

I realize and acknowledge this represents these lawyers' deep moral concern that the Bush administration's approach to these cases was simply and unacceptably wrong. I respect that conviction, but am not entirely sure (and am not persuaded that this article presents the right answer; I have doubts that rational choice theory offers the right answer) how a military officer as well as officer of the court and defense counsel should respond in such circumstances. [Added:] One thing I am certain of, though - while being quite unclear about professional responsibility and military lawyering generally - is that criticism implicit and explicit in the article about scholarly writings by military lawyers is wrong; I thought, for example, that Charles Dunlap's 1990s article about the politicization of the officer corps leading to a coup in the form of a fictitious letter was both an outstanding and unusual piece of scholarship, and an entirely appropriate way in which an intelligent, professional, thinking officer corps and its lawyers need to discuss in a scholarly way rising issues, including those that go to professional formation and values.

It was interesting to me, too, that an article of mine, from not long after 9-11, was quoted back to me by two JAGs (it can be downloaded free here; I think it was used in a couple of JAG classes after it first came out, which is how they had seen it). My article argued that, in my experience as an NGO person debating with US military lawyers about a wide variety of human rights and law of war matters over a couple of decades, the peculiarity of the US military lawyer was a preference to treat such matters not as a matter of moral vision, but of "merely" technical lawyering, apolitical technical legal matters, and negotiation of the the US national security interest. I said in that piece that US military lawyers, in my personal experience with them, in fact had quite a burning moral vision of the laws of war and their meaning, and that US interests would be furthered if they were willing to argue more directly from moral propositions just as the NGOs do. It was pointed out to me that, in fact, JAG officers are far more willing to do that today than when I wrote that article, or at least in the pre-9-11 years - but as against the civilian authorities in their own government.

[Added:] Interestingly, at least to me, one of the core observations of that article about the interaction of US military lawyers with groups such as NGOs was the engaging, downright endearing desire of US military lawyers to be liked by the NGO people - they didn't want to think of themselves as the bad guys defending bad stuff; they thought of themselves as good guys just like the NGOs and wanted to go hang out with them and find common grounds of goodness and idealism. And in the unhappiness in some quarters over miltiary commissions and Guantanamo, it appears they have. It wasn't what I was thinking when I wrote that piece, and I'm actually surprised that Sulmasy and Yoo didn't cite it, but there it is.

Part of this, of course, locks into the whole question of citizens and soldiers, one's rights to expression even when one is a soldier. There is a tendency - I share it - to sympathize with the soldier or officer or JAG who feels morally compelled to speak out. On the other hand, the very concept of democratic civilian control over the military requires that military not operate as an independent branch of government, even on things it regards as deep moral propositions, but treat itself as a pure instrument of civilian will. That has never been true of the generals who control grand strategy, of course, and can't be - but it has never been thought to extend down to individual JAGs. Yet, if it comes to individual techniques, such as interrogation or detention techniques, that an individual JAG or, frankly, any other soldier finds fundamentally abhorrent and unconscionable, in our system we both expect the concern to be raised - and we expect it somehow to be resolved, for or against, within what is ultimately a structure of civilian authority.

So, on the one hand, a firm belief that even an instrumentality has to have some independent, internalized limits even as against those who direct it. On the other hand - well, I have spent a lot of time in Latin American military dictatorships over the past thirty years, and in every case, their justification for doing what they did was predicated on the view that the military had obligations to the "nation" that were greater than any particular set of civilian leaders. That enabled them to justify coups against any particular civilian administration in the name of some higher national conception. The UCLA article appears to suggest - the language is careful on that point - that some senior officersr, and some miltary lawyers - indeed, seemingly particularly military lawyers - view any administration in theory, but the Bush administration in particular, as merely temporary holders of office, whereas the military's allegiance is to something more eternal, even if it is the constitution as independently construed by the officer corps.

If that were really true, of course, it would come far too close to the "higher concept of the nation" that was relied upon by Latin American military dictators from Pinochet to Guatemala's successive military rulers. Or else Seven Days in May, which by happenstance I watched not long ago. But it was also hard to see that the article presented evidence of that - after all, it is true of all civil servants, always, that they see administrations come and administrations go; there are many miles between that and a view that the military serves some higher extra-administration mission. That seems to me the most incendiary implication of Sulmasy and Yoo's article, but one in which it is an enormous leap from one to the other, unjustified on its own.

Please be clear about this - I am not characterizing JAGs as a whole, of course, and am not even trying to say what I think the professional roles and their interactions should be, but am simply reflecting on my experience in being around different groups on various occasions and in various ways in light of this new article. My experiences are anecdotal, from someone outside the military. And my respect for the JAG and the way in which the rule of law has become an important part of military culture is enormous. I am not even necessarily criticizing these increased signs of willingness, if they are real, to dispute civilian authorities on moral grounds. I don't pretend to have answers to the various questions raised in these discussions - I am not sure exactly what I think or to what extent it raises matters of concern. But I am initially convinced that it is a public discussion that needs to be had. It is a hard one, because like all such questions, it by implication can easily be read as raising questions about loyalty, obedience, fidelity, honor - all deeply personal as well as professional, questions of personal and professional identity. (It is partly because of the psychological issues involved that I doubt very much that rational choice theory can provide the answers. ) [Added: I also think that Alan Kaufman is right in suggesting that Jack Goldsmith's discussion on this in The Terror Presidency is much more nuanced and captures the genuine controversy better, but I will leave that aside here.]

It is hard to know exactly what forum in which to have such discussions, if they should be had at all, if there is any reason to have them. Within the JAG schools, for example - yes, in one way, but I don't think it's sufficient. There are important questions here that need to be had in dialogue with larger intellectual and political communities. I'd be happy to try and create a setting for something like that discussion at my school, or perhaps through the new Hoover task force on national security and civil liberties. There are many players who already have articulated points of view - the NGOs, civil liberties organizations, military law groups, etc. Maybe it is something that the Lieber Society - the law of war branch of the American Society of International Law - might take up. And again, let me be clear - this is not an attack on the integrity of the JAG, either individually or institutionally, far from it, but it is a question as to whether there are issues of professional identity that need to be openly discussed. I have very mixed feelings about these things, and am frankly not sure what I think, except that I do think the questions need to be asked.

(This inchoate sense that the war on terror as a legal proposition has strained the JAG, in its fundamental identity, is one reason I have pressed for a civilianization of the detention and trial process - a national security court and a civilian regime of administrative detention, despite the many uncertainties and questions that such a regime raises. It is time to get the military out of the detention business and out of the military commissions business, and to bring their activities in these things back to traditional battlefields, battlefields as traditionally defined in the law of war, not the whole world as (legal) battlespace as the war on terror regime asserts. That means, however, as Jack Goldsmith, Ben Wittes, me, and many others by now - Glenn Sulmasy included - have urged, that Congress has to bestir itself and legislate the legal mechanisms, not only this administrative detention proposal, but additionally the legal structures to govern that part of counterterrorism that consists of gathering intelligence and acting on it in ways that are neither law enforcement nor war in the narrow legal sense.)

I know a great many JAG and former JAG, many of them highly distinguished lawyers in and out of uniform, some of whom have gone into academia and elsewhere (and one salutary side-effect of the tragedy of 9-11 is the fact that JAG officers, for the first time in my experience in academia, are able to get serious academic positions in law schools where they bring a wealth of experience not available any other way to these academic subjects). I'm not military or former military, I'm a law of war expert via NGOs, and I would be highly interested in getting reactions to this article and to the general issues I've raised here from those who are or have been.

Is this in fact a tempest in a teapot and not something of any long term concern? Are there real issues here, or am I making more out of it than I should? Is this something that merits a public discussion, or it is something best left to the JAG schools, as part of the discussion of professional roles as military and lawyers? This blog not being a shy place, I would be very interested to hear from people like Geoff Corn, Bobby Chesney, Mike Newton, Alan Kaufman, and people from the Lieber Society. And nonmilitary people as well, from NGOs and academia, from DOS and DOD, and from people in or once in the Bush administration - Matt Waxman and Philip Bobbitt and Jack Goldsmith come to mind. I am trying in part to gauge whether this is an issue of sufficient salience that I should be looking to try and promote a larger discussion. Or whether this is getting all excited over something that isn't really an issue, in an article that is making strong claims it doesn't really back up. Perhaps my imagination is merely inflamed from having watched Seven Days in May a couple of months back, all Burt Lancaster and Kirk Douglas. I solicit your views. I'd rather raise it in a blog post in order to see whether it is worth having a more formal discussion, or whether it warrants an article, or whether I'm getting over-excited. Send me an email if you'd rather not post something publicly.

I have excerpted two chunks from the article, below, one from the introduction on the large issue of military-civilian relations, and the second from near the end, specifically on the JAG.

Recent events in the war in Iraq and in the War on Terror have raised the salience of civilian-military relations. The war in Iraq has brought forth a great deal of friction between civilian Department of Defense officials and military officers. For example, dozens of retired military officers, including some recently returned from Iraq, called for the resignation of Secretary of *1819 Defense Donald Rumsfeld on the ground that he had mismanaged the war. [FN13] The criticism from the retired officers echoed not-for-attribution comments by active duty officers, which had extended to criticism of Secretary Rumsfeld's heavy hand in planning before the invasion. [FN14] Perhaps the most publicized flashpoint occurred when Army Chief of Staff, General Eric Shinseki, testified before Congress that an insufficient number of troops were being sent to occupy Iraq. [FN15] Senior Department of Defense officials quickly repudiated Shinseki's comments. [FN16] Our system perhaps has not witnessed a similar level of public conflict between civilians and military officers since President Truman's well-known and controversial firing of General Douglas MacArthur during the Korean War.

Civilians and military officers have also struggled over legal policy in the War on Terror. In February 2002, after extensive debate between civilian and military leaders, President Bush decided that the Geneva Conventions did not apply to armed conflict with al Qaeda, and that the United States would not extend prisoner of war (POW) status to al Qaeda's Taliban allies. [FN17] According to media reports, senior officers of the Judge Advocates General's (JAG) Corps opposed the decision and turned to human rights groups to challenge the decision in court. [FN18] According to press reports, JAGs argued that the decision violated international law, and they implicitly believed that the president did not have the authority to interpret and apply international law on behalf of the nation's government and military.

A second event of friction occurred in the fall of 2006 during Congress's consideration of the Military Commissions Act of 2006. [FN19] In November 2001, President Bush issued an order establishing special military courts for the trial of terrorist suspects accused of committing *1820 war crimes. [FN20] Some JAG officers had opposed this option, arguing that the existing court-martial system under the Uniform Code of Military Justice (UCMJ) ought to be used instead. [FN21] Civilian leaders in the Pentagon went ahead with the design of the military commissions, but proceedings never began due to habeas corpus litigation challenging their legality. In Hamdan v. Rumsfeld, [FN22] the U.S. Supreme Court held that the commissions violated Common Article 3 of the Geneva Conventions, [FN23] which it concluded Congress had incorporated into the rules for military commissions when it enacted the UCMJ in 1950. [FN24]
In response, the Bush Administration sought legislation from Congress to place the military commissions on firmer ground and to overrule aspects of Hamdan. During congressional hearings on the legislation, the head JAGs for the U.S. Marines and the U.S. Army claimed that military commission rules that withheld classified information from the defendant (but not defense counsel) violated “the judicial guarantees which are recognized as indispensable by civilized peoples,” as called for by Common Article 3. [FN25] Brigadier General James Walker, the Marines' top uniformed lawyer, said “no civilized country should deny a defendant the right to see the evidence against him, and that the United States ‘should not be the first.”’ [FN26] This directly conflicted with the position of the civilians in the Bush Administration, who concluded that the legislation was consistent with the United States' international obligations. [FN27] In the same hearings, the *1821 representative of the U.S. Department of Justice argued that the proposal to allow the defense counsel but not the defendant to see classified information “properly administered by the military judge, would strike the appropriate balance between safeguarding our Nation's secrets and ensuring a fair trial of the accused.” [FN28] In the same written statement, the representative declared: “In the midst of the current conflict, we simply cannot consider sharing with captured terrorists the highly sensitive intelligence that may be relevant to military-commission prosecutions.” [FN29]

Some criticize these actions for undermining the principle of civilian control of the military. Others defend them as an example of military experts preventing civilians from making serious strategic or tactical mistakes. Whatever their intention or effect, military criticism or even resistance to civilian policy decisions is not restricted only to the war in Iraq or the War on Terror. Rather, such criticism is the latest in a series of major conflicts between civilian and military leaders since the end of the Cold War.

Even before the September 11 attacks, observers had concluded that civilian-military relations had reached a “crisis.” [FN30] During the early Clinton years, one prominent military historian argued that General Colin Powell had resisted civilian leaders--regarding the use of force in Bosnia--in a manner reminiscent of General George McClellan's hesitancy to commit to battle during the Civil War. [FN31] Writing in 1994, Richard Kohn, one of the nation's leading military historians, characterized the Armed Forces during the late George H.W. Bush and early Clinton Administrations as “out of control.” [FN32] By 2002, Kohn had concluded that “civilian control of the military has weakened in the United States and is threatened today.” [FN33] According to Kohn, “the American military has grown in influence to the point of being able to impose its own perspective on many policies and decisions.” [FN34] Summing up the post-Cold War years, Kohn detected “no conspiracy but repeated efforts on the part of the armed forces to frustrate or evade civilian authority when that opposition seems likely to preclude outcomes *1822 the military dislikes.” [FN35] Kohn believed that civilian-military relations in that period were as poor as in any other period in American history. [FN36] In 1992, then-Colonel Charles Dunlap (now a brigadier general and deputy JAG of the U.S. Air Force), even wrote an essay in the form of a fictitious letter from the future describing a military coup by the year 2012 because civilian leaders were calling on the military to perform essentially civilian tasks, such as stopping drug trafficking or feeding the poor, which would lead to a politicized officer corps. [FN37]

What events produced this crisis? The conventional explanation is that President Clinton entered office with a military already distrustful of him, because of questions raised during the 1992 campaign about whether he had dodged the Vietnam War draft. Matters only became worse when Clinton decided, as one of his first acts as president, to reverse the military's ban on openly gay personnel. The Joint Chiefs of Staff immediately met with President Clinton to express their strong opposition to the decision, which was followed by an extensive congressional lobbying effort by the military in support of a statutory codification of the ban, coordination with retired officers who could publicly criticize President Clinton's proposal, and leaks to the press of mass resignations should the ban be lifted. [FN38] Within a few months, President Clinton announced the existing “Don't Ask, Don't Tell” policy, which amounted to a significant change from the administration's original policy.

While the controversy over gays in the military held high political salience, it was only one example of resistance by the military after the end of the Cold War. General Colin Powell, for example, gave an on-the-record interview in the New York Times opposing military intervention in Bosnia while serving as chairman of the Joint Chiefs of Staff; meanwhile, civilians in Congress, the first Bush Administration, and the 1992 presidential campaigns were still debating policy options. [FN39] General Powell even published an editorial in his own name opposing any Bosnian intervention. [FN40] Military historians suggest that the open opposition of General Powell and the military delayed U.S. intervention in the Balkans by four years. [FN41] Military leaders sought to prevent the Clinton Administration *1823 from sending a large military force to intervene in Haiti, and blamed civilians for refusing to send adequate armor and resources for the mission in Somalia. Opposition from the military and the Pentagon prevailed over President Clinton's desire to support the treaty banning land mines and significantly impeded his signature of the treaty creating the International Criminal Court-- a decision the Bush Administration soon reversed with the broad backing of the uniformed military. [FN42]

During this period, the struggle between civilians and the military continued over less well-known issues as well. Military officers apparently undermined the administration of Secretary of Defense Les Aspin, leading to his resignation, and also forced his nominated successor, Admiral Bobby Ray Inman, to withdraw. Controversies accompanied the retirement of several four-star flag officers, and there seemed to be constant infighting over issues such as sexual harassment policies and women in combat. [FN43] No serious change in organizational force structure occurred, even though the primary enemy for which the American military had prepared for more than half a century, the Soviet Union, had disintegrated. As Kohn observed, “the uniformed leadership-- each service chief, regional or functional commander, sometimes even division, task force, or wing commanders--possessed the political weight to veto any significant change in the nation's fundamental security structure.” [FN44] Opposition to efforts to rethink policy in response to the end of the Cold War and developments in military technology continued into the Bush Administration, which experienced stiff resistance before the September 11 attacks to the “revolution in military affairs” promoted by Secretary Rumsfeld. [FN45]

One could say, of course, that none of these examples demonstrates that civilian control of the military in the United States is under any real threat. If the sole purpose of civilian control of the military is to prevent a coup, then the principle has not been seriously challenged. But civilian control of the military encompasses more than just formal control over the instruments of government. It must also be measured by the ability of the military to succeed in imposing its preferred policy outcomes against the wishes of civilian leaders to the contrary.

This was the heart of General MacArthur's challenge to President Truman's leadership, widely considered the most serious civilian-military *1824 conflict, at least since the Civil War. MacArthur posed no threat of a military takeover of the formal mechanisms of government. Rather, MacArthur publicly questioned the civilian decision, after Communist China's intervention in the winter of 1950, to pursue a limited strategy in the Korean War instead of outright victory. MacArthur claimed that he was not required to take orders from the president as commander-in-chief, and that he owed a greater obligation to a higher constitutional authority. After he had been relieved by President Truman, General MacArthur returned to the United States to cheering crowds and addressed a joint session of Congress. In a speech to the Massachusetts legislature, MacArthur said: “I find in existence a new and heretofore unknown and dangerous concept that the members of our Armed Forces owe primary allegiance or loyalty to those who temporarily exercise the authority of the Executive Branch of Government rather than to the country and its Constitution which they are sworn to defend.” [FN46] While certainly not as public or as brusque, some members of the uniformed military appear to share a similar attitude that civilian leaders are, at best, temporary office holders to be outmaneuvered or outlasted.

One of the most important sections of this article addresses the extraordinarily sensitive question of the role of JAGs in the current war on terror debates. It is exceptionally difficult for anyone, inside the military or out, to raise at this point because it both invokes and triggers many debates over military culture. But this is a conversation that needs to be had within the JAG, within the military as a whole, and among civilian and military leaders. I have very considerable admiration for the article's willingness to raise an issue that can have such profound repercussions:

... In this ambiguous arena, JAGs are immersed in more than just the straightforward application of widely accepted legal rules on the use of force. Rather, the United States is engaged in adapting the laws of war to this new type of enemy, with significant moral, policy, and political considerations. *1844 These questions involve the status of detainees, the applicability of the Geneva Conventions, the legality of targeting leaders of al Qaeda, and determining proportionality and distinction when terrorists conceal themselves within civilian populations. [FN123] This new application of the laws of war has placed the JAG Corps in the middle of questions that had once been the domain of the elected civilian leadership or combat commanders.

In some instances, some senior JAGs have preferences that are profoundly different than those held by the civilian leadership. There are a number of potential explanations. First, JAGs have been influenced in part by nongovernmental organizations in the human rights arena. [FN124] These organizations sharply criticize the U.S. government and military operations conducted in the War on Terror and characterize U.S. strategic and tactical decisions as violating moral as well as legal principles. Second, JAGs are responsive to the American legal academy, which also continues to criticize many operations in the War on Terror as violations of both U.S. constitutional law and international norms. Third, JAGs cannot help but see that the War on Terror has produced deep divisions among political parties and groups in civilian society.

The growth of the role of JAGs has been remarkable in the past thirty years, even more so in the past decade. [FN125] It has essentially gone unregulated. Legal ambiguities in the wars of the twenty-first century will undoubtedly require a continued and enhanced presence of JAGs in military operations. However, unregulated deference to the JAGs has limited some combat operations, and will continue to do so. [FN126] Civilian leaders should remain aware that the growth in JAG influence can have a detrimental impact on the nation's ability to win wars. Leaders have allowed a regime to arise in which the JAGs advise, within the confines of the law, the best means of achieving military objectives. American combat officers must now seek out JAGs for rulings on the incorporation of the law of armed conflict into their ongoing operations. It is no coincidence that this unprecedented role for JAGs developed at the *1845 same time that severe problems in civilian control over the military occurred in the wake of the Cold War.

JAGs, almost as surprised as others with their newfound prominence, must be mindful of the effects their advice can have on effective combat operations. [FN127] Their enthusiasm in providing advice on operational matters will be viewed by some as challenges to civilian control of the Armed Forces. Policy concerns regarding operations or political decisions regarding the conduct of war cannot be officially challenged by JAGs. If actions to resist civilian policy choices in the War on Terror continue, our rational model approach predicts a response by combat officers and civilian entities, ultimately resulting in a diminished role for JAGs.

As I said, I solicit your views.

7 comments:

Andrewdb said...

One of the places this should be discussed is here:

http://civmilblog.com/

KA said...

Yes, this blog looks quite interesting - quite new, I hadn't seen it before, and I am curious about who writes for it. KA

hank_F_M said...

One relevant aspect of Post (WWII) war civil military relations is the ability to convince the military it has been heard.

President Truman was a reserve officer. He understood enough of Military culture that he could listen to proposal form the military, give the impression that what they said had been heard, understood, and given fair consideration, then say no. General Eisenhower could do the same.

The Kennedy/Johnson administration, which gave the military far more than Truman or Eisenhower would say no and give the impression that they did not listen, understand, or care. President Reagan is the only president since then that could give the impression that the military had been heard. Nixon, Ford, and Bush I being someplace in between.

The enough of the radical left in the Clinton administration despised the military and had the compliment returned. General Sheninski at one point sent out a memo reminding everyone that negative public statements by commissioned officers about Elected Officials such as the President was a specific violation of the UCMJ. Of course the NeoCon wing of the Bush II administration has a distrust of expert opinion Military Legal or just about anything else.

Of course the President like and commander has no obligation to explain the reason for his orders, but situation permitting, it is good practice.

The point. When the senior military believes that it is not being heard on issues of vital importance in their area of competence, like fighting wars, they get frustrated like anyone else and tend to look for alternate ways to make the point. What is being described is a very large case of frustration at being ignored. The US Military will obey orders in any case, but the inability of the last two administrations to give the impression that the military opinion as been heard, understood, given fair consideration but rejected for larger considerations is a big driver in the situation note in your post.

And I think there is much the same problem between the last two administrations and the legal community, JAG and others.

Don Inbody said...

Ken,

I was in Bahrain in the months following 9-11 and as the early war plans for Iraq began to be circulated. I was among the few early ones "read in" to the plans, in fact. I also watched the detainees/prisoners being moved from Afghanistan to Guantanamo and began to wonder how we were going to treat them.

Line officers get legal training. They have to because of responsibilities of law of war, law of the sea (in my case, being in the Navy), and of course in dealing with non-judicial punishment and courts martial. My training was not at the same level as a Judge Advocate General, of course, but it was consistent and often.

I knew about Prisoners of War and I knew about criminals. This third category was a mystery to me and mystery to the JAGs that I dealt with out in 5th Fleet. It is still a mystery to me and none of the explanations offer any sort of comfort that we did it correctly.

While I absolutely believe our legal system, either our civil system or the UCMJ, can handle them all, there are probably a few people, numbering only in the few dozens, who probably just need to be made to disappear. That is the world of "black operations" and will always probably be on the edge or just beyond legality.

Our American civil-military relations are strained right now. We are not near a break or tear, but they are strained. They began to be strained in the Clinton years and continue to be strained in the Bush years. We need to spend serious time thinking, talking, and writing about this issue. Public debate will ultimately yield the correct response.

Don Inbody
http://civmilblog.com
don@inbody.net

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 Kaufman
who was, and remains, your student

Andrewdb said...

Professor -

The link to the entire article at UCLA L. Rev. is here:

http://www.uclalawreview.org/volumes/54/_pdf/6.1-10.pdf

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