The Decide Advocate Normal of america Military, Lt. Gen. Stuart W. Risch, visited Puerto Rico on Feb. 8 as a part of his ongoing efforts to unfold consciousness concerning the Decide Advocate Normal program. (Photograph by Sgt. Marcuss Moyett)
The current determination by the secretary of protection to fireplace all three service Decide Advocates Normal (JAGs) despatched shockwaves via the army authorized group. Being a army lawyer myself, this determination went past a mere headline: It was deeply private, as one of many JAGs who was dismissed was my boss.
Like many within the JAG Corps, my preliminary response was frustration. The prevailing knowledge holds that JAGs are impartial arbiters of the regulation, advising commanders with out political affect. Their position is guaranteeing authorized soundness of insurance policies, not shaping them based mostly on partisan concerns. The concept they have been eliminated for being “roadblocks” to coverage appeared like an assault on that very precept.
However as I sat with this, I spotted that historical past tells a extra difficult story. This occasion, as stunning as it’s, will not be an aberration. As a substitute, it reveals a fact about army authorized recommendation, a fact I used to be reluctant to acknowledge however now really feel compelled to discover.
A Sample We’ve Seen Earlier than
For these of us who’ve spent our careers within the JAG Corps, there’s a comforting perception that our position is essentially completely different from that of civilian political appointees. We don’t serve on the pleasure of the president just like the legal professional normal, and our operate is commonly described as purely authorized, not political.
But when that have been completely true, why has historical past repeatedly positioned army legal professionals on the middle of political battles?
Take, for instance, the John Yoo torture memos from the early 2000s. Yoo, a lawyer within the Division of Justice’s Workplace of Authorized Counsel (OLC), authored memos that supplied authorized justification for enhanced interrogation methods, a coverage deeply intertwined with the Bush administration’s political targets.
When Congress sought readability on these insurance policies, they didn’t name army commanders to testify. They referred to as upon the experience of legal professionals from each the civilian and army sectors.
Yoo and different administration-aligned legal professionals supplied testimony to Congress defending the coverage selections as legally justified. JAG officers, together with the Decide Advocates Normal on the time, testified as effectively, voicing authorized considerations about interrogation insurance policies. The army testimony stood in stark distinction to the administration’s place, and it contributed to the eventual rollback of some insurance policies.
This historic instance illustrates a tough actuality: Authorized recommendation in authorities is rarely purely impartial. It’s at all times a part of the coverage course of.
JAGs, whether or not we wish to admit it or not, play a job in shaping and legitimizing army insurance policies. Our authorized opinions don’t simply exist in a vacuum; they affect what the Division of Protection is ready to do, and because of this, they inherently intersect with politics.
Why the JAG Choice Course of Invitations This Downside
Not like the legal professional normal, who’s publicly nominated, confirmed by the Senate, and explicitly acknowledged as a political appointee, the choice of the Decide Advocates Normal is a closed course of that takes place throughout the JAG Corps itself.
This insularity has lengthy been seen as a safeguard towards political stress, guaranteeing that army authorized recommendation stays impartial. Nevertheless it additionally signifies that when authorized interpretations don’t align with an administration’s coverage targets, there isn’t any mechanism for resolving that battle — aside from the form of sweeping firings we simply witnessed.
The secretary’s determination, whether or not intentional or not, highlights an uncomfortable pair of questions:
If JAGs operate in a way just like civilian authorized advisors who assist implement govt coverage, ought to their choice course of be extra clear? And if we acknowledge that army authorized recommendation performs a job in legitimizing or obstructing coverage, can we nonetheless assume that JAG choice needs to be insulated from the administration?
None of that is to say that the secretary’s determination was the best method. Blanket firings based mostly on perceived coverage misalignment, slightly than demonstrated misconduct or incompetence, create severe dangers.
First, such a transfer weakens confidence in army authorized integrity. If JAGs might be dismissed purely as a result of they supply authorized interpretations that don’t align with coverage targets, future authorized advisors might really feel pressured to supply steering that’s politically expedient slightly than legally sound.
It might additionally politicize army authorized recommendation even additional. If the usual for elimination turns into disagreement with an administration’s most well-liked coverage course, future JAG appointments might shift towards those that are perceived as extra politically agreeable slightly than legally rigorous.
And at last, it units a precedent for instability. The position of JAGs shouldn’t be about political loyalty. Whereas authorized interpretation is an inherently political course of, there have to be room for good religion authorized disagreement with out worry of dismissal.
The place Do We Go From Right here?
This second requires a severe dialogue concerning the position of JAGs in army coverage and whether or not the choice course of needs to be reformed to higher stability authorized independence with accountability. In summation, the three key questions to think about are:
- Ought to JAGs be topic to a affirmation course of, just like civilian attorneys in authorities?
- Ought to there be clearer protections for authorized officers to make sure that they don’t seem to be dismissed solely for offering inconvenient authorized opinions?
- Ought to we rethink the best way authorized recommendation is built-in into DoD policymaking to scale back the notion that JAGs are coverage gatekeepers slightly than advisors?
These will not be simple questions, and there are not any easy solutions. However ignoring them is not going to make the issue go away. The secretary’s determination might have been controversial, however it has compelled us to confront a actuality we are able to not dismiss: Army authorized recommendation will not be separate from politics, and our system doesn’t absolutely account for that fact.
One potential resolution, which might require Congress to become involved, could be to regulate the timeline of the JAG choice course of to align with a brand new presidential administration. A variety course of that begins after election affirmation and ends someday throughout the first 100 days of the brand new presidential time period would supply two layers of safety: If the method have been to stay untouched by political affect, the timing would make it seem it was underwritten by the administration defending the JAG Corps, and however, if political affect is inserted into the method there may be time to regulate and make it a suitable choice throughout the regular administration affirmation time.
As a army lawyer, I wish to consider that our position stays one among principled authorized steering, unaffected by political shifts. However historical past suggests in any other case. If we don’t grapple with this problem now, we danger future administrations making related strikes, probably with much more direct political motivations.
The JAG Corps should determine whether or not to interact on this debate proactively or danger being reshaped by it.
MAJ Trent Kubasiak is a decide advocate with Eighth Military within the Republic of Korea. Beforehand, he was chief of army justice, tenth Mountain Division and Fort Drum. He deployed 3 times to Afghanistan and as soon as to Kuwait. He has a JD from Marquette College College of Legislation, Wisconsin; an LLM from the Decide Advocate Normal’s Authorized Middle and College, Virginia; and an MBA from Capella College.
The views expressed on this article are his personal and don’t characterize the official place of the Division of Protection
