JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that the disclosure of former US Navy General Counsel Alberto Mora's lost battle within the US Defense Department against what he considered flawed legal analysis of US interrogation and detentions policy suggests that the Pentagon's internal legal process has been subverted in the interests of a controversial policy agenda....
Within the government legal community, it is often said that it is better not to know "how the sausage is made." This reflects the fact that the intra and inter agency dialogue related to complex legal issues is often heated, involving multiple participants who sometimes seem more concerned with protecting their individual Service or Department interests than with the obligation to reach consensus that serves the best interests of the nation. The saying also, however, reflects the equally significant reality that normally this process does in fact produce results that effectively and legitimately serve the larger purpose. Thus, so long as the product "tastes good", it is sometimes better not to know how it was produced.
Alberto Mora's experience within this "sausage making process" illustrates that it is no longer possible to accept on faith that while it may be "ugly", the process is working effectively. Instead, his experience demonstrates that the process itself - so critical to ensuring an effective and legitimate legal foundation for the policies related to the planning an execution of military operations has been tainted. In short, not only has a small circle of "unlimited executive power" advocates set an agenda that is inconsistent with longstanding legal interpretations related to such operations, but they have also disabled the internal Department of Defense (and by implication the wider Executive Branch) mechanisms intended to ensure broad consensus derived from the contributions of key international and operational legal experts. As a result, instead of meaningful dialogue related to the complex legal issues that implicate both operational and service chains of command, Mora's experience suggests that any dissent from policy-enabling interpretations was summarily dismissed and the proponents marginalized from future participation in the analytical process.
Some might attempt to defend the process reflected in Mora's experience by reference to the warfighting chain of authority established by the Goldwater-Nichols Defense Reorganization Act. This statute established a streamlined operational chain of command running from the President, through the Secretary of Defense, to the warfighting commanders of the joint commands with designated responsibility for conducting operations in the different regions of the world. Thus, during Operation Iraqi Freedom, General Tommy Franks, the Commander of US Central Command (with geographic responsibility for the Middle East and Central Asia), reported not through any of the Service Chiefs (such as the Chief of Staff of the Army, or the Chief of Naval Operations), but directly to the Secretary of Defense, normally through the Secretary's statutorily defined military adviser, the Chairman of the Joint Chiefs of Staff. Accordingly, proponents of the centralized process Mora struggled against might note that it was not Mora's role to question analysis and opinions developed by the General Counsel of the Department of Defense, because only that legal adviser is directly linked to the operational chain of command.
Such a defense would be specious, as it ignores the longstanding process relied on to develop effective and legitimate legal analysis related to military operations. Initially, it is critical to note that although the Service Chiefs are technically not part of this operational chain of command, in the realm of legal analysis the Service Judge Advocate's General (the senior uniformed lawyers for each of the four Services) have historically played a critical role in the formulation of legal positions related to operational issues. Furthermore, as a result of Senate hearings in July 2005, it is a matter of public record that these senior officers had also been raising serious concerns over the same issues that triggered Mora's alarm. The focal point for the intra-agency process designed to leverage the international and operational law expertise of all Service Judge Advocates was the Department of Defense Law of War Working Group (LOWWG). This intra agency forum was established pursuant to the Department of Defense Law of War Program (DOD Directive 5100.77), which mandates Service participation. While the LOWWG is chaired by a representative of the DOD General Counsel's office, it includes the international and operational law experts from each Service's Judge Advocate General's Office, and the Legal Adviser to the Chairman of the Joint Chiefs of Staff. This composition was intended to not only leverage the expertise of attorneys specializing in the law of war and working on a daily basis with law of war related issues, but also to ensure the Service Judge Advocate's General were able to raise concerns through their agents, and, if necessary directly with the DOD General Counsel. The composition of this forum reflects the simple reality that much of the expertise on legal issues related to military operations is located in the supporting, as opposed to the direct chain of operational command.
The conspicuous absence of any reference to Mora addressing his concerns to the LOWWG, along with the discussion in the New Yorker article related to the concentration of decision-making outside of DOD, with the DOD General Counsel merely implementing the dictates of White House lawyers, suggests that the LOWWG, and the highly effective intra-agency vetting process it traditionally spearheaded, was marginalized by the General Counsel. The mere fact that Mora had to raise concerns related to interrogation policies is itself evidence that this traditional process had been discarded. As Mora acknowledges in the article, he did not expect to become involved in operational issues. As Navy General Counsel, his role was to provide legal advice for the Secretary of the Navy; whereas his uniformed counterpart, the Judge Advocate General of the Navy, provided advice to the Chief of Naval Operations. These two distinct roles, which are mirrored for each service, have traditionally meant that the Judge Advocate's General were primarily responsible for operationally related issues, hence their representation on the LOWWG. Thus, his perceived need to intervene on these issues suggests marginalization of the Service Judge Advocates and their international and operational law experts.
Alberto Mora's experience in attempting to break through the intransigence associated with policy-driven legal analysis is indicative of broader failure to leverage the traditionally respected sources of international law authority within DOD. The results have been profoundly discouraging. Most observers were already familiar with the highly suspect analysis that provided the foundation for detention and interrogation policies promulgated by the Executive Branch. Although much of this analysis was discredited by Jack Goldsmith's reassessments, serious questions remain regarding the lingering taint of these legal opinions.
And apparently the cycle continues. We now learn of an initial rejection by the Secretary of Defense of the proposal to endorse Common Article 3 of the four Geneva Conventions as the touchstone of all detainee operations (although there is no indication this is the final DOD position on this subject). Thus, the distorted process has once again manifested itself in a decision even the most inexperienced military attorney not to mention the law of war experts within and outside of DOD would find almost incomprehensible. For literally decades, the proposal apparently so categorically rejected has been the understood standard for US forces. To learn that the intra-agency proposal to confirm this traditional understanding was rejected because it might deprive the Executive of needed flexibility is the consequence of allowing policy to dictate legal opinion, and the marginalization of the traditional process for developing legitimate legal analysis.
Alberto Mora's story is both troubling and admirable. He certainly struggled to ensure DOD policies complied with the baseline standards of humane treatment that have been long understood by US forces as non-derogable. It is more troubling, however, to contemplate not only his apparent inability to achieve this goal, but how the process used to develop the policies he fought against required someone in his position to take such extraordinary measures. Perhaps we really may not want to know how the sausage is made. But when, as of late, the sausage is so badly tainted, it's time to take a look at the machine that makes it and assess whether it's in need of repair.
Geoffrey S. Corn is a Professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters