While I support the 3 star promotions, I have always thought it is the wrong solution to the right problem. The rank shoul dnot be with the TJAGs, in my opinion, but rather with judgae advocates assigned to the operational chain of command -- the Chairman of the Joint Chiefs, and the Combatant Commanders.

Current JAG Corps organization reflects a pre-Goldwaterp-Nichols paradigm, and needs revision.

The new law has the right rank, but in the wrong billets:

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. The issue 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 bring influence to bear.

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 soon three star) 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 (My understanding is the new law would require the Chairman's legal counsel be a one star, but I saw mo mention of that in DepSECDEF's memo).

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 Navy Captain 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 (and soon 3). 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.

AG Kaufman has provided an excellent and well-reasoned post, but I'm going to disagree with it. Kaufman accepts Goldwater-Nichols as the template, but I'm starting to think that G-N is not the unalloyed success many seem to think it is.

This (IMO) phony and overblown war on terror, with its centerpiece being the needless waste of blood and treasure in Iraq, has highlighted the act's deficiencies. We now have a situation where the most senior officers of the Army and the Marine Corps are essentially begging for relief because they perceive their services to be broken. Conversely, the senior officer in Iraq--now moving to CENTCOM--has been mute on this point, even though he is an Army officer. The CENTCOM commander at the beginning of the Iraqi fiasco did not seem to recognize that he was in the U.S. Army, owing as he did his fealty only to the disgraceful man that was then Secretary of Defense.

I think it's time to revisit this whole chain-of-command architecture. I'd like to see the secretaries of the military departments and their senior uniformed officers be re-empowered to the point where they actually have some say-so over the services for which they are supposed to be responsible. What we have now is a classic circle-jerk where the guy burning all of the resources is not responsible for them whatsoever. I don't like that. CofS, Army, has morphed into what is a thankless and powerless job for the individual who is supposed to be, by law, the senior uniformed officer in that service.

What's this got to do with JAGs? Everything, if one thinks about it. The MILDEPs, not the combatant commands, are supposed to be the homes for uniformed personnel. Which is why assigning the most highly ranked uniformed attorneys to the MILDEPs makes sense. If one wants to take this pushing of rank out of the MILDEPs to the COCOMs to its logical and absurd conclusion, why do not do away with those four-star and three-star officers on the MILDEP staffs? Why not do away with the MILDEPs entirely? What are they doing these days?

From where I sit, one very practical reason for not giving any more ranking uniformed lawyers to outfits such as CENTCOM is the fact that, as we've seen, CENTCOM has been blessed every step of the way with very senior legal advice from OSD and DOJ. Plus the offices of the president and vice president. They ain't hurtin' for high-powered legal advice at CENTCOM. OTOH, one notes that the only real cautionary sounds we've heard about "coercive interrogations" and potential violations of the laws of war have come from the JAGs in the MILDEPs. Interesting how JAGs at COCOMs haven't been too visible. I think the MILDEP JAGs need all the horsepower they can get, and I think that's why this law came about.

I think what AG Kaufman is trying to say is not that the MILDEPs should not have two or three star JAG officers, but that there needs to be more SJA rank with the combatant commands. Like it or not, the combatant commands are the operational commands. As such, those commanders need experienced legal advice in the most timely manner possible.

I don't know if you have had the good (or bad) fortune of being in a division or higher headquarters in Iraq or Afghanistan, but when I sat in a division TOC in Iraq, the lawyers were very busy folks. I can only imagine what it is like at CENTCOM.

Because of the nature of stability operations, or COIN, or any of the types of operations the military is likely to be engaged in for the foreseeable future (like it or not), legal advice is at a premium. Commanders need it. So why not give the operational commanders what they need: experienced officers with the rank needed to be taken seriously by the rest of the staff.

I agree that giving the MILDEP JAGs another star is a good idea to head off any crazy ideas that come from the civilian leadership like we have seen in the past few years. But the fact is that we also don't want politically motivated "legal" advice being pushed on the operational commands, where it is likely to do a great deal of damage. Furthermore, it is important for the operational commander to get the most timely advice possible and so having an experienced military lawyer on the staff of a joint commander--one with the appropriate rank--is probably a good idea.

"But the fact is that we also don't want politically motivated "legal" advice being pushed on the operational commands, where it is likely to do a great deal of damage. Furthermore, it is important for the operational commander to get the most timely advice possible and so having an experienced military lawyer on the staff of a joint commander--one with the appropriate rank--is probably a good idea."

Good post DM Inf, but think through what you've posted. Sounds good in theory, but reality is, as we've seen, that the operational commander is going to get that politically motivated advice, whether he wants it or not. And he will listen. Unfortunately, the rank of his military JAG won't matter one bit, not once the elephants have spoken.

I think we should endeavor to be as reality based as possible. This would include avoiding the belief that wishes might come true in the face of empirical evidence to the contrary, accepting that wiring diagrams are cool-looking but often meaningless, and accepting our defense establishment the way it really is.

If wishes were horses, beggars would ride.

Publius,
You make a good point. At the end of the day, the political leadership is going to get their way. But when they try to couch their guidance in terms of the "legality" of a particular policy, wouldn't it be better to have an experienced general officer SJA on the commander's side to fight that battle? It's the same reason that having more rank for the MILDEP JAGs is a good idea. More experienced military lawyers with more rank to be taken seriously can provide the military prospective more forcefully on a given issue. It is just as necessary at the operational level as anywhere else.

But I concede that at the end of the day, the military is subordinate to the civilian political leadership, so at some point, no matter what rank the military lawyer is, those in uniform answer, "roger, sir," salute smartly, and drive on with the airborne mission.

It would be good to add prosecutors to the IG office upon reform if Gates continues. Like the current Pentagon's counsel's office, it is full of scerlosis and blind toadies down through the service level that tend to indemnify and even participate in criminal activity.

One of the reasons Haynes slow-rolled the promotions is because he wanted to be the promoting authority, i.e. have a political appointee decide who got a star from the JAG. This was a blatant attempt to politicize the JAG corps, in much the same way the Bush administration has been trying to politicize the operational commands, the DOJ, in fact do away with the entire concept of a professional civil service.