JAG Needs Refocus

The military’s judge advocate general corps of lawyers’ primary job is to interpret and help enforce the Uniform Code of Military Justice (UCMJ). The UCMJ is the military’s parallel but carefully customized legal code, meant to provide the disciplinary basis necessary to meet military missions while being true to the U.S.’s civilian laws. (A discussion of UCMJ, and the care with which it must be treated, is here.)

The core of our constitutional arrangement is that the military is subject to civilian control, and that usually means primarily to the president – the Commander in Chief, and in some circumstances with guidance or allowance by the Congress. Military officers are appointed by the president.

That means that the JAG officers must, also, be subject to the direction of their Commander in Chief, and work to further the military policies and programs of the administration.

In recent years, JAG has not performed this mission well.

On a tactical basis, JAG officers are too often poorly trained and inexperienced, attached to every unit, and too often providing impractical advice or interference. (I wrote about this here.)

In researching the two posts about Lawfare Vs Warfare above, I spoke and corresponded with many of the leading experts on UCMJ and JAG. A draft of a third post was circulated among some, which was faithful to what was said. But, they asked me to deep-six it, as comity and friendships among their fraternity was too important to reveal just how deep the unease and criticisms are of JAG’s conduct.

JAG officers, especially without combat experience, are often at heart civilian lawyers in uniform. The often antagonistic attitudes toward U.S. and military policies that pervade our campuses and law schools affect their judgments, and frequently prevail. Instead of seeing themselves as enablers of the nation’s and military’s mission, JAG’s often try to undermine them.

That said, the Boston Globe reports:

The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted.

The tone of the Boston Globe’s report, and the sources it chooses to present, is that,

The former JAG officers say the regulation would end the uniformed lawyers' role as a check-and-balance on presidential power…

Flash to Boston Globe and to the liberal former JAG officers quoted: JAG does not exist to be “a check-and-balance on presidential power.” JAG exists to carry out and enable the military’s missions and discipline. The president is the civilian authority over the military, as well as Commander in Chief.

It’s not until the end of the Globe article that we get to the meat of the matter. JAG officers are there to offer legal opinions, but not to contradict or seek to override their constitutional civilian superiors.

Responding to the conflicts, in 2004 Congress enacted a law forbidding Defense Department employees from interfering with the ability of JAGs to "give independent legal advice" directly to military leaders. But when President Bush signed the law, he issued a signing statement decreeing that the legal opinions of his political appointees would still "bind" the JAGs.

I’m not sure whether this proposal is best, or will fly. But, it’s still an important shot across the bow of runamock JAG’s.