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.