Best Defense

Bush administration vs. the JAGs (II): The history of a strategic blunder

In response to my query about whether there is a good history available of how the military’s JAG corps resisted the Bush administration’s urgings to disregard the Geneva Conventions and other laws, retired Air Force Reserve Brig. Gen. Ed Rodriguez suggested reading chapter 12 of Charlie Savage’s Takeover. So I did. It is quite good ...

Wikimedia Commons
Wikimedia Commons

In response to my query about whether there is a good history available of how the military’s JAG corps resisted the Bush administration’s urgings to disregard the Geneva Conventions and other laws, retired Air Force Reserve Brig. Gen. Ed Rodriguez suggested reading chapter 12 of Charlie Savage’s Takeover. So I did. It is quite good on the point that tensions between JAGs and their civilian overseers date back to Cheney’s time as defense secretary.

But I still would like to read a history of the conflicts over interrogation and such over the last 10 years. I think the closest we come is parts of Jane Mayer’s The Dark Side. Also, retired Air Force Maj. Gen. Charles Dunlap had a good piece in the summer 2010 issue of Texas Tech Law Review. Yet I think there is space here for a narrative history, ideally by a lawyer, about this confrontation, which I suspect carried unexplored significance for military professionalism.

I haven’t read Joseph Marguiles’ Guantanamo and the Abuse of Presidential Power, but one reader wrote in to say it covers this subject well. 

The Bush Administration’s effort to suppress independent advice from military officers was worse than a crime, it was a strategic blunder. Good strategic decision-making comes from airing differences, not hiding them. Of course, once civilians make a decision, the military should salute smartly and execute with vigor — as some Marine recruiters are now doing by actively recruiting gays.

Here also are some reading recommendations from the friendly folks at the Lawfare blog:

“Understanding the Role of Military Lawyers in the War on Terror: A Response to the Perceived Crisis in Civil-Military Relations”

Victor Hansen
New England School of Law
South Texas Law Review, Vol. 50, p. 617, 2009

Abstract:  
This article is a response to an article published in the UCLA Law Review by John Yoo and Glen Sulmasy which argued that the military lawyers violated the principle of civilian control of the military when they disagreed with some of the Bush administration’s policies in fighting the War on Terror. In this article, I will first show how Sulmasy and Yoo’s view of civilian control of the military is a narrow, inaccurate reflection of the principle. I suggest that when Sulmasy and Yoo refer to civilian control of the military, what they are really arguing for is politicization of the military by one branch of government. Such a narrow view of civilian control of the military is without historical precedent and is, in fact, antithetical to our constitutional structure. In suggesting a more limited role for uniformed lawyers, Sulmasy and Yoo contend that the Global War on Terror is so different from wars of the past that many of the traditional legal norms do not apply. The refrain, ‘the events of September 11th changed everything,’ has been a constant theme by Bush administration officials to justify any number of actions. While this refrain has been constant, I suggest that both the applicability of the laws of war and the role for military lawyers – with unique expertise in the development and implementation of these laws – are still critical aspects of the War on Terror. This article suggests a more accurate explanation for why military lawyers were opposed to many of the Bush administration’s proposals related to the treatment of detainees. Finally, this article will discuss the ethical obligations of military and other government lawyers, a matter not discussed by Sulmasy and Yoo.

Also, several folks indicated that the best account of the civ-mil fight between the TJAGs and the administration is found in Chapter 12 of Charlie Savage’s book “Takeover.”

Finally, there is a forthcoming article from Deborah Pearlstein in the Texas Law Review that covers JAGs and the larger question of civil-military relations, with the abstract as follows:

As U.S. counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting and the use of force, recent legal scholarship has painted a grim picture of the vitality of civilian control over the U.S. military. Prominent generals leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action. Bureaucratically sophisticated officers secure the adoption of their policy judgments in the Executive Branch and Congress contrary to civilian preferences. And misplaced judicial deference to military expertise on what is necessary to regulate the special community of the armed forces exacerbates the growing social separation between the military and the society it serves. The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. Before one can tell whether civilian control is threatened, one must first have some understanding of what it is. Yet for all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably under-theorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social and political theory literature of civil-military affairs view the Constitution’s separation of powers – in particular, the allocation of authority over the military to more than one branch of government – as a fundamental impediment to the maintenance of civilian control as they take it to be defined. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This Article is an effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation of powers scheme.

I’m not positive, but I think she covers the particular topic you mentioned.

Best,
Bobby

Thomas E. Ricks covered the U.S. military from 1991 to 2008 for the Wall Street Journal and then the Washington Post. He can be reached at ricksblogcomment@gmail.com. @tomricks1

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