Bush Admin Wants Control Over JAG Promotions

[Puppycow]

Now the Bush Administration Wants Political Appointees to Control Military Promotions of JAG Lawyers

If career military lawyers' promotions are controlled by political appointees of whichever political party, would that be a good thing for justice? Isn't this one area that should be kept free of politics?

I asked myself if my opposition to this wasn't just Bush Derangement Syndrome. In fact, I think that Bush is a lame duck and that this change would probably benefit (if it is a benefit) his successor, who I expect to be a Democrat, more than Bush. Still, I don't think that political interference in this area is necessarily a good thing. The main reasons being separation of powers, and placing reasonable limits on executive power. (BTW, before anyone says that, since the military is part of the executive branch, this is not a separation of powers issue, consider if all the legislative power was given to just one house of congress: That would be a concentration of power within one branch of government.)

Key members of the Bush administration legal team have pushed to subject the JAGs to greater political control for years.

In the early 1990s, both Haynes and Vice President Cheney's top aide, David Addington, were politically appointed lawyers in the Pentagon during the Bush-Quayle administration. On their advice, Cheney, who was then the defense secretary, proposed making each service's general counsel the boss of his JAG counterpart, but the Senate Armed Services Committee forced the administration to back down.

In 2001, Haynes and Addington were restored to power in the Bush-Cheney administration, and the conflict over JAG independence resumed amid the fights over such war on terrorism policies as harsh interrogations.

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.

 

[Darth Rotor]

This is a foul.

Congress approves the promotion lists of the Executive Branch subset known as the military. I heard once of a thing called checks and balances.

Congress needs to grow a pair and take on this signing statement, and hammer it down.

It's just plain wrong.

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.

The only thing that binds a JAG in that regard is the requirement to follow lawful orders.

Lawful orders.

DR

 

[Beerina]

They can still give the advice, apparently, but Bush's word still goes, as is proper since he is the Commander-in-Chief.

Or am I missing something?

 

[Upchurch]

This is a foul.

Congress approves the promotion lists of the Executive Branch subset known as the military. I heard once of a thing called checks and balances.

That was my first question when I started reading this: "How are promotions usually handled?"

I take your word for it.

Congress needs to grow a pair and take on this signing statement, and hammer it down.

Ramen.

 

[Darth Rotor]

They can still give the advice, apparently, but Bush's word still goes, as is proper since he is the Commander-in-Chief.

Or am I missing something?

The way the law works, what you might be missing, is that the promotion of officers (and IIRC senior NCO's) ha to be approved by Congress.

For an example, the CO of the Blue Angels had his promotion from Commander to Captain held up, and then cancelled, by Congress due to his participation in the 1991 Tailhook convention (even though he clean in his behavior.)

Another example is of CDR Kirk Lippold, CO of the USS Cole (who I once served with) whose promotion to Captain from Commander was stonewalled by Senator Warner of Virginia. If Congress does not approve the officer promition, the officer does not get promoted.

DR

 

[Beerina]

Ok, then, that's fine. Doesn't the President, via his executive branch, still do the nominating for promotions? Like judges, he proposes, they approve? If that's the case, I still don't see what's wrong.

 

[drkitten]

Ok, then, that's fine. Doesn't the President, via his executive branch, still do the nominating for promotions? Like judges, he proposes, they approve? If that's the case, I still don't see what's wrong.

Because if the political hack decides that you're Politically Incorrect, you will never be proposed for promotion.

Rather like the US Attorney firings, only more so. US Attorneys are specifically supposed to be enforcers of the executive branch policy, and as such, are supposed to be responsive to the policy directives from above.

The JAG corps is specifically supposed to not be responsive to the policy directives and provide only "independent" legal counsel. This is difficult to do when the Deputy Assistant Undersecretary of the Coast Guard points out that unless you immediately drop all criminal charges against all evangelical Christians in your district (because the President has determined that no evangelical Christian could be guilty of a criminal offense) you will never rise above major and you will be separated from the service for non-promotion.

 

[Darth Rotor]

Ok, then, that's fine. Doesn't the President, via his executive branch, still do the nominating for promotions? Like judges, he proposes, they approve? If that's the case, I still don't see what's wrong.

Yes. My name was on the list for promotions to Commander, but I was not promoted until the list came back from Congress to SecDef, approved. (And there were other delays, based on lineal number, not germane to the topic.)

Never got on the list for Captain.

DR

 

[quixotecoyote]

Yes. My name was on the list for promotions to Commander, but I was not promoted until the list came back from Congress to SecDef, approved. (And there were other delays, based on lineal number, not germane to the topic.)

Never got on the list for Captain.

DR

You know, I never realized until you just made me look it up how much of a grand-high-muckity-muck captains were in the Navy. It makes sense what with the floating around in the boats and whatnot, but the other branches put captain where you'd put lieutenant, correct?

 

[ponderingturtle]

Because if the political hack decides that you're Politically Incorrect, you will never be proposed for promotion.

Also with the Up or Out policy wouldn't they loose their jobs as well?

 

[Darth Rotor]

You know, I never realized until you just made me look it up how much of a grand-high-muckity-muck captains were in the Navy. It makes sense what with the floating around in the boats and whatnot, but the other branches put captain where you'd put lieutenant, correct?

Yes. The origin of ranks in the services is different due to how the services evolved over the centuries.

You generally call a Lieutenant Commander "captain" on his ship if he is the captain of the ship, which these days might be a minesweeper, in WW II a corvette. You also call a Captain "Captain" who is a staff officer, like the Chief of Staff of the Fifth Fleet, even if he is not in command of anything.

Leftanant/Lieutenant was a rank, like William Bligh, that could evolved into "Leftenant in Command" (which turned into Leftenant Commander) and thus "Captain William Bligh" was a Leftenant.

Clear?

General = Admiral
Lt General = Vice Admiral
Maj General = Rear Admiral (upper half)
Brigadier (General) = Rear Admiral (lower half, once Commodore)
Colonel = Captain
Lt Colonel = Commander
Major = Lt Commander
Captain = Lieutenant
First Lieutenant = Lieutenant (junior grade)
Second Lieutenant = Ensign

It really makes sense, since there were Ensigns in the Napoleonic Armies. They tended to be near a flag.

As to JAG's, they aren't line officers, but their promotions are governed by the same rules.

DR

 

[Darth Rotor]

Also with the Up or Out policy wouldn't they loose their jobs as well?

Not necessarily. You can remain in service after being twice passed over, depending on your grade and the need of the service to fill billets. When there is a draw down, the FOS (failed of select IIRC) officers or FOS 2(failed of select twice) officers tend to be the first to get the axe.

There are also high year tenure rules for non coms and officers that vary with service. At some point, you have to retire due to age limitations, unless you get a waiver. So, at 30 years you have to retire unless you are, as Colin Powell was, Chairman of the Joint Chiefs or like some others, granted a waiver due to certain specialty or (perhaps) a bit of politics.

DR

 

[ponderingturtle]

Not necessarily. You can remain in service after being twice passed over, depending on your grade and the need of the service to fill billets. When there is a draw down, the FOS (failed of select IIRC) officers or FOS 2(failed of select twice) officers tend to be the first to get the axe.

There are also high year tenure rules for non coms and officers that vary with service. At some point, you have to retire due to age limitations, unless you get a waiver. So, at 30 years you have to retire unless you are, as Colin Powell was, Chairman of the Joint Chiefs or like some others, granted a waiver due to certain specialty or (perhaps) a bit of politics.

DR

Ah I was basing my understanding on this article

The Navy lawyer who successfully challenged the Bush administration's military tribunal system at Guantanamo Bay is retiring. Lt. Cmdr. Charlie Swift is being forced to leave the service after being passed over for a promotion. But Swift insists that he is not the victim of retaliation.

In May of 2003, Swift was assigned to represent Yemeni citizen Salim Hamdan, who had been Osama bin Laden's driver. Swift was told that his task was to plead Hamdan guilty to war-crimes charges. He decided that was unethical, and instead went to court to challenge the system.

...

"In taking the Hamdan case," he said, "I took myself out of the normal progression path."

Experts agree the Navy makes promotions with a bias toward war-fighting skills. In short, the Navy wants generalists, even in its lawyers: People who can serve as legal advisors to battle groups and base commands. Swift is a litigator.

He is not the first highly regarded trial specialist to be forced out. The first prosecutor in the Hamdan case also was denied promotion and forced into retirement, as was another key member of the Guantanamo defense team, a lawyer with 16 years in the service.

 

[Darth Rotor]

Ah I was basing my understanding on this article

Under DOPMA, and subsequent law reforms, you are not statutorily guaranteed the "twenty" as an O-4, though you are as an O-5. (Absent any massive screwing up or obvious criminal negligence, etc.) He appears to consider it a fair cop.

But Swift insists that he is not the victim of retaliation.

Do you see what is wrong with the language in this next passage? Promotion is not an entitlement, it has to be earned by being selectedn against a competitive field. The JAG core necks down rather sharply at the O-4 to O-5 level. So do a lot of the Non Line officer communities. They need a lot of indians (O-3's and O-4's) to work legal issues, not so many chiefs (O-5/O-6)

He is not the first highly regarded trial specialist to be forced out. The first prosecutor in the Hamdan case also was denied promotion and forced into retirement, as was another key member of the Guantanamo defense team, a lawyer with 16 years in the service.

Spin alert. "Denied Promotion." No, failed to promote, just as I failed to promote to Captain. My record didn't stand up well enough versus all the other officers considered.

Eligible for the RIF given his not being promoted to O-5.

Had he a sub specialty, or a strong endorsement to waiver/extension, he might still be in the uniform, but given his FOS, his odds for promotion under anything other than unusual circumstances are remote to nil.

Why he was not promoted is another matter. If he has evidence of collusion, or willful violation Navy Personnel Regs, or an error in his records, or a lot of other stuff, he could file a grievance for a remedy.

These two are not the first O-4's let go before he got to twenty, and a "vested" retirement. Dozens, hell, hundreds were cut from the rolls in that manner in the mid 1990's during the Clinton draw downs.

DR

 

[ponderingturtle]

Under DOPMA, and subsequent law reforms, you are not statutorily guaranteed the "twenty" as an O-4, though you are as an O-5. (Absent any massive screwing up or obvious criminal negligence, etc.) He appears to consider it a fair cop.

Do you see what is wrong with the language in this next passage? Promotion is not an entitlement, it has to be earned by being selectedn against a competitive field. The JAG core necks down rather sharply at the O-4 to O-5 level. So do a lot of the Non Line officer communities. They need a lot of indians (O-3's and O-4's) to work legal issues, not so many chiefs (O-5/O-6)

Spin alert. "Denied Promotion." No, failed to promote, just as I failed to promote to Captain. My record didn't stand up well enough versus all the other officers considered.

Eligible for the RIF given his not being promoted to O-5.

Had he a sub specialty, or a strong endorsement to waiver/extension, he might still be in the uniform, but given his FOS, his odds for promotion under anything other than unusual circumstances are remote to nil.

Why he was not promoted is another matter. If he has evidence of collusion, or willful violation Navy Personnel Regs, or an error in his records, or a lot of other stuff, he could file a grievance for a remedy.

These two are not the first O-4's let go before he got to twenty, and a "vested" retirement. Dozens, hell, hundreds were cut from the rolls in that manner in the mid 1990's during the Clinton draw downs.

DR

I am not making a claim that he was fired for political reasons, I was thinking that vetting people for political reason for promotion would cause them to either be maintained or fired.

So if promotions are based on politics and those not promoted are fired, then it would remove them from the service.

 

[Darth Rotor]

I am not making a claim that he was fired for political reasons, I was thinking that vetting people for political reason for promotion would cause them to either be maintained or fired.

Oh, indeed, it happens to general officers all the time. If your name is not well liked by the people who work in an administration, or by particular members of Congress, you will not get the next star.

That is old news. It is also a risk generals take.

So if promotions are based on politics and those not promoted are fired, then it would remove them from the service.

Your "based on politics" is to vague to be useful for conversation. Are you referring to the internal politics of a given military unit, and the reputation an officer has in his professional community, or are you, and I think you are, referring to non DoD elements of the executive branch interfering with the normal military promotion process? If the latter, I will share any disdain you express in that regard. Keep those f****g suits out of the process.

DR

 

[ponderingturtle]

I had just been thinking about how people talked about the US atournies fireing and such. It made me wonder if people who view the entire executive branch as being there solely to fulfill the presidents ideologies extend that to the military.

 

[Darth Rotor]

I had just been thinking about how people talked about the US atournies fireing and such. It made me wonder if people who view the entire executive branch as being there solely to fulfill the presidents ideologies extend that to the military.

Some do, I suspect. The problem for them is this: the military is not there to serve the person, other than the Camp David guards and others so assigned, but to serve the office, and the function.

That said, "politics" used as "people interacting with other people when jockeying for power and influence" is not confined to the formal side. There is political infighting of many sorts at the military/political interface in Washington.

The above is why many military sorts view a Washington tour with distaste, or loathing.

DR

 

[Garrette]

Some do, I suspect. The problem for them is this: the military is not there to serve the person, other than the Camp David guards and others so assigned, but to serve the office, and the function.

That said, "politics" used as "people interacting with other people when jockeying for power and influence" is not confined to the formal side. There is political infighting of many sorts at the military/political interface in Washington.

The above is why many military sorts view a Washington tour with distaste, or loathing.

DR

Colonel John Boyd reportedly told his staff that they needed to choose between being something and doing something. He warned that those who chose to do something could accomplish much but advance little.


EDIT: As to the OP, I would find it distasteful if any officer within the military itself attempted to gain control over the decisions of the designated promotion boards. Raising the level at which the meddling originates merely raises the level of distaste.

 

[Darth Rotor]

Colonel John Boyd reportedly told his staff that they needed to choose between being something and doing something. He warned that those who chose to do something could accomplish much but advance little.


EDIT: As to the OP, I would find it distasteful if any officer within the military itself attempted to gain control over the decisions of the designated promotion boards. Raising the level at which the meddling originates merely raises the level of distaste.

I think this thread has to do with executive branch officials not in the service, and not within DoD, attempting to influence, and thus partly exercise control of the promotion boards' various decisions, rather than any officer in the military.

As you know, there are senior officers, board presidents, and the bestarred Pers masters they answer to who exercise considerable control over the boards. Mind you, they are supposed to ensure the boards conform with the rules written by Congress . . .

DR