The White House has floated a proposed regulation that would require consultation with politically appointed Pentagon lawyers before the promotion of any member of the Judge Advocate General (JAG) Corp. This would effectively eliminate the independence and impartiality of the 4000 military lawyers comprising JAG by forcing them to adhere to a political agenda. (International Herald Tribune: Bush seeks to limit military lawyers' independence.)
Technically, as members of the military the individual members of JAG report through the chain of command to the President. In practice, however, JAG enjoys a tremendous amount of independence; an independence that caught the attention of the White House when military lawyers started to question the legality of certain interrogation methods or the detention of enemy combatants under the Geneva Convention.
Should the proposal be adopted, that independence would be lost. Those officers that did not adhere to the political doctrine would find themselves ineligible for promotion and their careers effectively crippled. The devastating side effect would be a similar crippling of the legitimacy and credibility of the military court system.
Said Major General Thomas Romig (RET), "(It) would certainly have a chilling effect on the JAGs' advice to commanders. The implication is clear: without approval the officer will not be promoted." Romig served as the US Army's top JAG from 2001 to 2005.
At the heart of the dispute is the President's position that the White House has the authority to bypass the Geneva Convention. Enforcing that position is Presidential appointee William Haynes, the Pentagon's top council. It is Haynes that involves himself in disputes with any JAG lawyers that dispute that claim. Under the new proposal, Haynes would be in a position to deny promotions to any JAG officer that disagreed with his (or the President's) political agenda. Those are very dangerous implications for the independence of the military court.
It can certainly be argued that the military court system and the JAG lawyers that service the military should follow the president's lead and adhere to the presidents policy. That's an argument fraught with danger, however. With regards to the Geneva Convention, a series of treaties lawfully ratified by the US Senate, the White House does not have the authority to circumvent or ignore the provisions of the treaty. Part of the provisions in the Fourth Geneva Convention call for a military tribunal to establish the legal status of prisoners held as a result of conflict. It is therefore imperative that the legal branch of the military maintain credibility in the eyes of both the US public and the world.
Using the military in any fashion to circumvent US law or ratified treaties is a most dangerous path. It's a path perilously close to that followed in a number of third-world regimes where the person in power is the one that controls the military. That is a path I would much prefer to see us avoid. The President has a responsibility to enforce the law and the treaties we sign, not find ways to circumvent them.
There's a very popular misconception with regards to the President as Commander in Chief of the armed forces. That title does not grant the President unconditional control over the military. Rather, use of the military and the ability to go to war is reserved for Congress. Granted, that's been usurped since 1945 - the last time Congress issued a declaration of war - however the Constitution is quite clear on the matter. Likewise, funding for the military, and the authorization to even have a military is granted to Congress, not the President. It was quite clear that the founding fathers intended the military to be in the hands of the people, not the President.
What is clear with regards to this JAG proposal is that Congress must keep close watch over the developments. This is not a reporting structure that should ever make its way into practice. Congress, with its oversight authority, must ensure that our military courts remain impartial. The only way to do that is to keep JAG out of the hands of political appointees.