White House to Military Lawyers: Keep Quiet

Here is another terrible idea from the Bush administration: The White House now wants to politicize the promotions process for attorney-soldiers. To uniformed lawyers who often put the rule of law ahead of their own interests, the message is as clear as it is cynical and short-sighted: If you want a promotion, stop criticizing U.S. policy in court, no matter how legally flawed it may be.

The move by the White House -- reported over the weekend by Pulitzer-Prize-winner Charlie Savage of the Boston Globe -- is another example of the relentless march the administration has taken toward a "unitary executive," where all executive-branch power resides with the president. It will fascinating to see now whether and to what extent the military pushes back.

From Savage: "The administration has proposed a regulation requiring 'coordination' with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force -- can be promoted.... Former JAG officers say the regulation would end the uniformed lawyers' role as a check-and-balance on presidential power, because politically appointed lawyers could block the promotion of JAGs who they believe would speak up if they think a White House policy is illegal."

More from Savage: "The JAG rule would give new leverage over the JAGs to the Pentagon's general counsel, William 'Jim' Haynes, who was appointed by President Bush. Haynes has been the Pentagon's point man in the disputes with the JAGs who disagreed with the administration's assertion that the president has the right to bypass the Geneva Conventions and other legal protections for wartime detainees."

The first person I thought about when I read the story is former Navy Lt. Cmdr. Charles Swift, who represented terror detainee Salim Ahmed Hamdan before the United States Supreme Court in 2006. Swift won the case -- the justices agreed with him that the military commission procedures existing at the time were insufficient -- but it cost him a promotion and, ultimately, his job. He's now a law professor at Emory University (and still representing Hamdan).

The coercion of military lawyers -- pull your punches in court or face career stagnation, or worse -- will accomplish two things, neither of which is productive. It will guarantee that the best military lawyers will spend less time in the system, and that the most fearful lawyers will remain. There will be uniformity at the cost of independence; expediency at the expense of justice.

When that occurs, not only will the clients of military lawyers suffer, but the rest of us will as well. Military lawyers are the canaries in a coal mine when it comes to poorly conceived military law. When something is rotten, they usually sniff it out first, and when they object to military policy, they typically have good reason for doing to.

That's why Hamdan won his case in court. And it's why we'll all lose if the White House gets it way here.

By Andrew Cohen |  December 17, 2007; 7:44 AM ET
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this administration in a way has done us a favor. it has revealed to us the many ways in which our system can be gamed, even though we thought it was a good one with checks and balances. the "founding fathers" tried their best, but we end up with a "democracy" in which we are split 50/50 by party lines, the party that happens to win a presidential election gets all the marbles, and the moderate positions that the great majority of people hold are ignored. two-thirds of americans want to end the war and get out of iraq right away, but we cannot get this done because of the way the system "works." congress is supposed to have the exclusive right to declare war, but has abdicated this so that any president can do whatever he wants. congress is supposed to control the purse strings but the rhetoric ensures that they are never able to use this power. this system is pretty screwed up if you ask me.

Posted by: billy | December 17, 2007 09:54 AM

Another significant effect of this new regulation would be to diminish even more the ostensible guarantees that detainees will receive a fair and just hearing on the merits of their cases. If their advocates have an incentive to "pull their punches" because truly representing their clients will cost them promotions, the likelihood of an outcome that reflects reality is even smaller than before.

Posted by: Lamentations | December 17, 2007 11:20 AM

Bush can still do great harm to the fabric of our society. That's why he should be impeached. But the other side, clearly, has more to gain from the system of rewards than it has by exhibiting a modicum of courage. A plague on both parties and their puppet-like candidates.

Posted by: H R Coursen | December 17, 2007 11:29 AM

This president will go to any length to ensure his absolute power. I wouldn't be surprised to see him declare martial law and suspend the constitution shortly before the next presidential election. I know this won't happen but it wouldn't surprise me.
This new rule would deplete the military of any bright legal minds. Any that are there presently would soon be gone to pursue a career in the civilian world and those that would consider serving would probably think otherwise.
What lengths this president will go are as yet unseen and simply astounding.

Posted by: P.T.Chesser | December 17, 2007 12:00 PM

If you are a government employee then your behaviors and thoughts are going to be micromanaged with regard to anything that actually matters to the executive in power. That's what happens when the shareholder (citizen) is taken out of the equation. This is very close to what we see in Russia now.

Posted by: On the plantation | December 17, 2007 12:19 PM

It remains an easy lay-up to criticize the administration's efforts to have the various sub-branches of the executive branch "singing from the same hymn book" (all allusions to enforced christianity intentional).

But if we are being intellectually honest, flip the situation around. Doesn't President Hillary/Obama/John/Joe/Chris/Dennis also want to curtail what they consider to be the extremist views of those who may have progressed up the chain of command for military reasons, but along the way also acquired greater recognition/volume when they stand on (or pursue issues relating to) their "soapbox"?

If President (Name your favorite) doesn't favor (name your issue here), it is not completely unreasonable that he/she will not want dissonance from within some sub-branch of what the constitution says is within their scope of authority.

The issue is one of design (of constitutional governance), rather than abuse in implementation.

The flaw may be that voters do not fully appreciate what they are voting for when the elect the individual. If all of what they can change/do as chief executive of the executive branch of government had to be listed on the ballot sheet, no one would read it all. We'd be exactly where we are today: voting for the individual we (think we) "trust" to "do the right thing". And damn the definitions (of "right").

Posted by: consider the other side | December 17, 2007 12:29 PM

To:consider the other side ,
We cannot know what a new administration from the Democrats may want in the way of controlling JAG's. But we know that no other administration in AMERICAN history has tried to bring the military under such partisan idealogical control.
So far only the Bush administration has attempted to make the DOJ and the JAG's an arm of the Republican party.
And that attempt should be fought by all Americans. Such partisan power over military and federal law enforcement and prosecution would be devastating beyond imagination.

Posted by: DemoChristian | December 17, 2007 12:40 PM

W looked into Putin's eyes and saw the possibility that he could name a figurehead successor and carry on as the new Cheney. Who died and named the Bush family Romanov?

Posted by: michaelj | December 17, 2007 12:54 PM

Sounds as though a good blanket question at the next Presidential "debates" might be: Which of you promise to reverse this policy, and give preferential promotion consideration to any military lawyers who were adversely affected by it?

My bet is every Democrat would say yes; the more interesting thing would be to see which (if any) Republicans would have the courage to.

Posted by: JUDGITO | December 17, 2007 02:38 PM

Not gonna pull this punch, but one of the things that the Nazi Party did in Germany was, when confronted by traditional courts and traditional lawyers that were critical of their polices was to fire the lawyers and judges or replace them with party members whose nomination, confirmation and promotion was all controled by the Nazi Party.
For this act, many Nazi lawyers and judges were tried at Nuremberg.

Posted by: William Smith | December 17, 2007 06:06 PM

These military commissars, now being contemplated for JAG are just too Stalinist for me. The IG, and JAG lawyers were supposed to be totally outside any chain of command except their own organizational chain exactly so that they could do what needed to be done, especially tell the truth to the top brass. That a military failure like George could conceive of such a thing simply shows how un American George really is.

That "consider the other side" would speak in favor of that shows that he is equally un American. No president of this country, including such high handed autocrats as Andrew Jackson or Richard Nixon ever even hinted that he might consider such a thing.

Political Commissars fot JAG? Unmoeglick!

Posted by: ceflynline@msn.com | December 17, 2007 08:09 PM

Bush is a walking talking horror story. He is also horrid.

He is forever seeking to protect himself from his own failures at the expense of transparency, truth, accountability and fairness to others. After he leaves office he will be reviled when access to relevant documents becomes available to all of us.

Posted by: Robert James | December 17, 2007 10:16 PM

Like the loyal Bushies running Prescott Bush's concentration camp factories at the end of WWII, the Bushies are once again shredding documents and evidence on an industrial scale. There are many pragmatic arguments against impeachment but the legal tools needed to stop the shredding and document the regime's domestic terrorism programs (including torture, massive economic crimes and political assassinations -- and not just on American soil) would be aided by impeachment even if the impeachment were obstructed by the loyal Bushies left over from Jack Abramoff's Congress.

Even security measures that make Cheney's safe look quaint can not protect the evidence of the organized crimes conducted against Americans under Bush's watch.

Andrew, what do you think of impeachment for the primary purpose of preserving evidence? Congress is ineffective and can't even pass SCHIP. They may claim that impeachment is a waste of time but it is a better use of time than the rubber stamping of domestic surveillance and administration lawbreaking. Remember, like torture, surveillance almost never stops terrorism -- a contemporary surveillance apparatus is the single essential tool required to commit terrorism. And not just terrorism. Pet goats agree: the steady trickle of tip of the iceberg reports from Charlie Savage are nothing more than the tip of the iceberg. And there are very, very few investigative reporters like Charlie Savage who are even capable of shining a dim candle on the tip of the iceberg.

Of course, Duck Hunter Dick boasts about not putting his actions into writing, even his duck hunting exploits, so if these charges sound over the top, think of what they did that they are not shredding.


Posted by: Singing Senator | December 18, 2007 07:06 AM

Another example of the Bush Administration's campaign to destroy the integrity of the U.S. Military. This is so sad, since it is coming from people who did everything they could to avoid serving in the military. They've "hollowed out" the army, now they're going to hollow out any dissent.

Posted by: PNeal | December 18, 2007 03:34 PM

Duty, Honor, Country has been replaced with
Power, Greed, Good Ole boy.

Me thinks Daddy should take shrub out behind the barn and tan his butt

Posted by: | December 18, 2007 05:07 PM

The ABA must go to Congress about this interference with the attorney's duty to vigorously defend the client.

The Joint Chiefs must go to Congress about this because their officers are being asked to swear allegiance to the Executive, not the Constitution.

Posted by: MoreAndBetterPolls | December 18, 2007 10:13 PM

We know that the Justice Department served as the political wing of the Republican Party - Karl Rove's dirty tricks machine. But as one whistleblower warned you, the military, having been covertly unleashed against the American people, is also serving as the political wing of Karl Rove-type dirty tricks special operations. This politicization is not new news. Domestic surveillance against America is largely run by the military and private contractors. And it is little more than a political dirty tricks and domestic economic crime operation. The War on Christmas is not a law enforcement operation, it is a war. It may sound funny. Think again. Life-threatening torture of an American patriot on American soil is just the tip of the iceberg -- not of what could theoretically happen on a slippery slope -- but what has already been reported.
The military has far more tricks up its sleeve than the Justice Department. We can see how they went after Siegelman and many others like him. But you will never see what the military is doing to America clandestinely.
You can replace the bandido, but the Bush Pioneers can still steal your Fritos.

Charlie Savage is holding a dim candle
But night is falling and you just can't see
You're in the army now

Posted by: Singing Senator | December 18, 2007 11:55 PM

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