JURIST Guest Columnists Lawrence Friedman and Victor Hansen of New England School of Law say that Congress needs to step in to counter the Bush administration's apparent efforts to limit the ability of uniformed military lawyers to advise on future military commissions while it favors the input of its own political appointees…

The U.S. Supreme Court’s decision in Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), has rightly been regarded as a rebuke to the Bush administration’s claims of authority to establish military commissions at Guantanamo. But the decision should be viewed as no less a rebuke to Congress for its failure to fulfill its constitutional responsibility in providing legislation to create a legitimate structure for military commissions and thus providing an important and necessary check on Executive power.

As we have argued (The Army and the Constitution: Time for Congress to Step In, JURIST, March 21, 2006) and the Hamdan decision confirms, the constitutional scheme contemplates that Congress will play an active part in the conduct of foreign and military affairs. Prior to the Court’s opinion in Hamdan, Congress was very reluctant to provide the President any substantive guidance or legislation on the structure of the military commissions. As a result of Hamdan, Congress now has another chance to assert itself on commission structure.

In doing so, Congress should ensure that the voices of the military lawyers are heard and that these uniformed lawyers contribute to the development of the structure of the military commissions. This is particularly important in light of recent reports that the administration is once again attempting to marginalize input from the uniformed lawyers in favor of advice from political appointees. See Charlie Savage, Military Lawyers See Limits on Trial Input, Boston Globe, Aug. 27, 2006. It seems that the administration never misses an opportunity to miss an opportunity to seek and consider independent legal advice from those who ultimately have the responsibility to implement whatever structure the military commissions take.

In the past, Congress has been remarkably forceful in curbing at least one of the administration’s proposals to consolidate its power over military decision-making: the politicization of the selection process for the top military lawyers of each service, a transparent effort to stem the flow of independent legal advice that the uniformed lawyers provide.

In the face of administration proposals to have political appointees choose the top military lawyers, and the Pentagon’s attempt to give the Air Force’s general counsel supervisory authority over the Air Force’s uniformed lawyers, Congress has remained unimpressed and affirmatively and effectively resisted those efforts. Indeed, Congress is currently considering legislation that would promote Judge Advocate General independence by elevating the ranks of top military lawyers by giving them a third star and putting them on a more equal footing with the military and civilian officials with whom they work and advise.

The administration’s proposals raise at least two questions in respect to Congress. First, does Congress have the constitutional authority to prevent the President, as commander-in-chief, from controlling the selection process and marginalizing the role that the military’s top lawyers play in important legal matters? Second, if Congress does have this power, how should it assert it in the current context?

That Congress has the power to deny the President’s proposals should not seriously be in question. The President does not possess the exclusive authority to regulate the armed forces or to make decisions regarding their composition. The Constitution expressly permits Congress to “provide for the common defense,” U.S. Const., Art. I, § 8, cl. 1; to raise and support armies, see id. § 8, cl. 12; and to “make rules for the government and regulation of the land and naval forces,” see id. § 8, cl. 14. Particularly in respect to the composition of the armed forces—which necessarily includes the military’s lawyer corps—Congressional authority is clear. See, e.g., Loving v. United States, 517 U.S. 748 (1996) (Congress has primary authority to regulate military conduct).

In light of this Constitutional authority, Congress should continue to resist efforts by the administration to politicize the selection process for the top military lawyers. It can do this by continuing to block the administration’s efforts to let political appointees select each service’s top lawyer. The current mechanism whereby each service nominates its respective Judge Advocate General has proved to be an effective means of identifying those military lawyers best qualified to serve in these important positions.

In addition, Congress should seek to elevate the position of each service Judge Advocate General from a two-star position to a three-star position. In an organization that is based on rank and where rank brings with it influence and authority, this promotion would be much more than a symbolic change. It would help to ensure that the service Judge Advocate Generals stand on equal footing with the people they advise and it would be much harder for their advice to be marginalized and ignored.

Finally, in the specific context of the military commissions, Congress should continue to ensure that the independent advice of the uniformed lawyers is heard. Congress can do this in several ways. In holding hearings on the commissions, Congress must routinely press the administration to provide specific information on what advice it sought from the military lawyers. If it is apparent that the administration is continuing to ignore or marginalize the uniformed lawyers, Congress has a strong basis upon which to reject the administration’s proposals outright, sending a message that it will withhold its authorization of the commissions unless the administration changes its view of the advice of military lawyers. It follows that Congress should continue to call upon the nation’s top military lawyers and other military legal experts to comment on how the military commissions should be formulated.

The Constitution’s framers recognized that a federalist system, with its multiple and redundant checks and balances, serves as the most substantive obstacle to the aggregation of power in any one branch of government. Though the President has the undeniable authority to lead our armed forces in the nation’s defense, Congressional insistence that he consider the independent counsel of those who will be doing the defending is not only unlikely to hinder his ability to do so, it is consonant with the commitment to the rule of law in our constitutional system.

Lawrence Friedman teaches courses in constitutional law at New England School of Law; Victor Hansen, a former lieutenant colonel in the United States Army JAG Corps, teaches courses in criminal law there.
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