JURIST Guest Columnist Victor Hansen of New England School of Law says that new legislation increasing the required rank of Judge Advocates General in the US military to three-star general or admiral will help assure the independence of the legal advice provided by uniformed JAG lawyers and put a more effective check on the executive's assertion of power...
While there have been legislative efforts in the past to increase the grade of the Judge Advocates General, this most recent change is significant for two reasons. First, three-star general or admiral is now the statutorily required grade that the Judge Advocates General must hold. Second, the 2008 Defense Authorization Act also increases the number of officers in each service who can serve in grades above a two-star general. Without this second change it was highly unlikely that the services would have been willing to allot one of the limited number of three-star positions to the Judge Advocate General, particularly in a time of war. These changes ensure that all future Judge Advocates General will serve at this higher rank.
The need to increase the grade of the general officer serving in the position of the Judge Advocate General has been demonstrated time and again over the past seven years of the Bush Administration. In numerous instances since the administration announced its war on terror, the legal advice of the Judge Advocates General has stood in sharp contrast to the legal advice provided by Bush political appointees in the Department of Defense and the Office of Legal Counsel in the Department of Justice. On issues ranging from detainee interrogations, to the structure of military commissions, respect for the provisions of the Geneva Conventions, and the use of secret evidence, the Judge Advocates General have provided opinions that have proven both prescient and well reasoned and free of the political expediency seen in the advice by the Office of Legal Counsel and the Department of Defense General Counsel.
Unfortunately, the advice of the Judge Advocates General was all too often and all too easily sidelined by the Bush Administration. The administration's disregard for the legal advice of the Judge Advocates General has been well documented. While there are numerous reasons why this administration has been able to ignore the advice of the uniformed lawyers in an area of the law where the JAGs enjoy a special competence, one of the primary reasons was that the Judge Advocates General held the rank of two-star general. A simple reality of life in the Pentagon is that the higher the rank of the officer, the more difficult it is to ignore him or her. By increasing the grade of the Judge Advocates General to the three-star level, Congress has made it more difficult for the advice of these uniformed officers to be sidelined and ignored by political appointees of any administration. This change also helps ensure that the Judge Advocates General are on a more equal footing with the military and civilian officials with whom they work and advise.
This legislation serves as a significant check on the executive's assertion of power, and is precisely the type of counterweight envisioned under our constitutional structure. The Constitution expressly permits Congress to "provide for the common defense," U.S. Const., Art. I, Â§ 8, cl. 1; to raise and support armies, see id. Â§ 8, cl. 12; and to "make rules for the government and regulation of the land and naval forces," see id. Â§ 8, cl. 14. Particularly in respect to the composition of the armed forces â which necessarily includes the JAG Corps â Congressional authority is clear. See, e.g., Loving v. United States, 517 U.S. 748 (1996) (Congress has primary authority to regulate military conduct).
This action also stands in sharp contrast to repeated efforts by this administration to politicize the JAG Corps over the past several years. These efforts have included attempts to subordinate the Air Force Judge Advocate General to the Air Force General Counsel, attempts to virtually disband the Air Force JAG Corps, and the most recent efforts by the Department of Defense General Counsel to have a say in the officer promotions of all Judge Advocates. These attempts by the administration to politicize the JAG Corps, stem from an erroneous view of a unitary executive and an incorrect belief that the military is just another executive department. Such a view runs counter to both our history and our constitutional structure. Recent events have clearly demonstrated the genius of this constitutional structure as well as the vital necessity of a JAG Corps that remains fiercely independent and able to provide its best legal advice regardless of the personality or party in power.
Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law