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Plan to politicize JAG promotions blocked

An attempt within the Pentagon to politicize promotions for military judge advocates general appears to have been blocked after protests from military lawyers and threats from key lawmakers.

The plan, which called for “coordination” with the civilian general counsels of the services and the Defense Department for the promotion of any JAG officers, had been circulated in the Pentagon since November but ran into a serious roadblock Tuesday when key members of Congress learned about the details.

For promotions to O-6 and below, the proposed policy required coordination with the chief civilian lawyer of each service, the service general counsel. For promotions to flag and general officer rank, the proposal called for coordination with the Defense Department general counsel.

DoD General Counsel William Haynes had planned to hold a meeting this Friday with the service judge advocates general to discuss the proposal, but sources in the Pentagon and in Congress said if a meeting is held at all, it will be to try to heal the wounds the proposal caused.

“This is one of the dumbest ideas I have ever heard come out of the DoD general counsel,” said Rep. Steve Buyer, R-Ind., an Army Reserve JAG officer and former chairman of the House Armed Services Committee’s subcommittee on military personnel.

“It is dead on arrival. If they enact the policy, and it appears they can, I promise we will stop it.”

Eugene Fidell, president of the National Institute of Military Justice and a senior partner at Feldesman Tucker Leifer Fidell, said the proposal clearly was an attempt to stifle military lawyers who have criticized Bush administration policies on torture and the rights of detainees held at Guantanamo Bay, Cuba.

“Against the backdrop of the events of the last several years, it’s hard to see this as anything other than payback for the independence of the JAG corps,” Fidell said. “I’m talking about the torture memos [and] the feisty independence that many JAGs have displayed over the last several years.”

Another military lawyer in Congress, Sen. Lindsey O. Graham, R-S.C., said the Pentagon initiative concerns him because it could lead military lawyers to be “looking over their shoulders” when proving legal advice to commanders.

“I do not want to interfere with legal advice given to commanders and military personnel,” said Graham, an Air Force Reserve judge advocate. “Having a military lawyer serve two masters is a bad thing.”

Sen. Ben Nelson, D-Neb., chairman of the Senate Armed Services personnel subcommittee, said, he hopes the Pentagon realizes it cannot add a new wrinkle to getting promoted without congressional oversight.

“Whatever change they may propose is subject to approval by the Senate Armed Services Committee,” he said.

The Armed Services Committee not only has the power to rewrite promotion law but also is responsible for approving the promotions of every military officer in the grades of O-4 and above. If displeased, it could bring all promotions to a screeching halt.

A Nelson aide said a few phone calls appeared to do the trick. “I believe we have already stopped it,” said the aide, who asked not to be identified.

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Staff writer Erik Holmes contributed to this report.