Elements of the JAG Corps — career government military lawyers — exert, in my view, an undue amount of influence on how this country will fight the war on terrorism. And not for the good. Along with their former JAG colleague and current mouthpiece in the Senate, Lindsey Graham, they have spearheaded the movement to provide gold-plated process to terrorists who are hell-bent on killing as many Americans and other Westerners as humanly possible. Any rational effort to stop such terrorists would focus on learning, through aggressive interrogation tactics, all that they know. But, as liberal ex-JAG John Hutson has admitted to Lindsey Graham (who did not disagree), the conferring rights on terrorists comes at a cost to our ability to obtain needed information. For more on the threat posed by the terrorist rights campaign see this editorial from today’s Washington Times and this one in yesterday’s Wall Street Journal which explains why, if the liberal JAGs and Lindsey Graham have their way, “we may not break the next Khalid Sheikh Mohammad.”
Until reading this piece in today’s Washington Times by Bill Gertz and Rowan Scarborough, I assumed that the JAGs in question view matters as they do for parochial but substantive reasons. As lawyers, the JAGs care deeply about process, and should. Unfortunately, their belief in process appears to have crowded out, fetish-like, any serious focus on competing concerns. In place of such a focus they probably just assume, as one of their members has pronounced, that we cannot lose the war on terrorism as long as we provide lots of process to detainees.
This sort of “substantive parochialism” is not a good thing. However, it’s not unique to JAG lawyers. Those in the intelligence community probably tend to focus with tunnel-vision on the thing they care about — obtaining information. So too with State Department bureaucrats, who obsess over how our actions are viewed by diplomats from other nations. It’s up to our leaders, and particularly the president, to mediate the competing obsessions. Unfortunately, owing to the balance of power in the Senate, the process-obsessed Lindsey Graham is able to play a disproportionate role. In addition, the Supreme Court — another collection of lawyers who haven’t been elected — has not been bashful about interposing its preferences, which include lots of process.
But if Gertz and Scarborough are correct, the JAG leadership is driven not just by substantive parochialism, but also by an ignoble desire to grow their bureaucracy and receive promotion. According to Gertz and Scarborough,
The war on terrorism has been exploited by the military judge advocates general (JAGs) to increase their numbers. The proliferation of military lawyers is at an all-time high, with Army JAG strength 10 percent larger than it was at the end of the Cold War.
The three senior JAGs for the Army, Navy and Air Force, known as TJAGs, want three-star rank similar to the surgeons general of the services. But they need a larger corps of military lawyers to justify the boost in rank, we are told. Legislation to increase the three-star rank was proposed this year but failed from lack of Pentagon support.
According to officials familiar with the debate, TJAGs were part of recent interagency meetings along with officials from the Defense, Justice and State departments on proposed legislation, and all parties reached “total agreement” on the legislation. The TJAGs had complained in the past that they had been left out of decision-making on interrogation, which is not true, so they were made full participants.
But after agreement was reached, the TJAGs publicly denounced in congressional testimony the legislation their representatives had accepted in the interagency debate, we are told.
As one participant told us, “National security was subordinated to TJAGs self-interest. Gaining an increase in JAG strength and three-star rank is more important than defeating the transnational terrorist threat.”
I have no way of knowing whether the substance of this report is accurate, and the fact that some ex-JAGs with no interest in a promotion support much of what their successors are doing suggests (as I explained above) that there is much more than self-interest at work here. Let’s hope that, contrary to the Gertz-Scarborough report, self-interest is no factor at all.