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Defense Secretary Donald Rumsfeld’s sweeping initiative to cut the Defense Department bureaucracy has hit the Pentagon’s legal suites. A May 15 Air Force order has sparked controversy by requiring the Air Force’s top military lawyer — a two-star general — to report to the Air Force general counsel, a political appointee. Meanwhile, a senior official reviewing the Army’s legal services recently said that the Army is considering cutting the active duty Army Judge Advocate General Corps from 1,500 to 500 lawyers. With pressure on military departments to improve efficiency and eliminate overlapping functions, tension is mounting between the Pentagon’s civilian lawyers and the fiercely independent JAGs. In a June 4 letter to the Senate Armed Services Committee, three retired judge advocates general from the Air Force, Army, and Navy call the Air Force order “troubling” and say it will undermine the ability of military leaders to receive independent advice. “This is extremely dangerous,” says retired Air Force Judge Advocate General Nolan Sklute, who is not one of the three signatories to the letter. “By making the judge advocate general subservient to the general counsel, it effectively destroys the independence of that office.” Outside the Air Force, uniformed military lawyers are fearful of similar reforms that may marginalize the role of judge advocates in the name of efficiency. For instance, Army General Counsel Steven Morello stirred concern last month when, during a speech in Florida, he announced plans to cut 1,000 active duty judge advocates and hire civilian lawyers for their jobs. According to The Washington Times, the Army proposal is part of an effort to increase the ratio of war fighters to support staff. Though the total number of attorneys would remain the same, the so-called tooth-to-tail ratio would look better on paper. The Army would not provide a copy of the speech, but an e-mail response from the Army public affairs office stated, “The General Counsel, The Judge Advocate General, and other senior Army lawyers are in continuing discussions about how best to satisfy requirements for legal services. It would be premature to speculate about the outcome of those discussions or any potential review that might result from them.” One Pentagon observer called the proposal “nonsensical,” adding, “They’re not actually changing the tail. They’re just cutting it off and putting another one on.” Former military lawyers say the current disputes are part of an ongoing turf battle between the general counsel for the armed services and judge advocates general. “This is plainly an attempt by the civilian political appointees to grab power,” says retired Army Judge Advocate General John Fugh, one of the authors of the letter to the Armed Services Committee. Fugh adds, “We believe in civilian control of the military. At the same time, civilian people are political appointees, and there is a need to have an independent military perspective. You can’t simply merge the two.” WHO’S IN CHARGE? Officially, a civilian general counsel appointed by the president serves as chief legal adviser to the secretary of each military department and is the department’s final legal authority. The judge advocates general serve as the chief legal advisers to the armed service chiefs and consider their function separate from, but not subordinate to, the general counsel. Traditionally, judge advocates general have had ultimate responsibility within their service for oversight of courts-martial and military justice. Under the new Air Force order, the judge advocate general’s authority for military justice seems to be eroded. The general counsel is deemed “solely responsible within the Department of the Air Force for legal aspects of major matters arising in or involving the Department of the Air Force” and given legal authority to “become involved in, examine, or review any particular case or matter within the Department.” Critics say the order violates the Uniform Code of Military Justice by exposing the military justice system to political manipulation. Military law expert Eugene Fidell, a partner at D.C.’s Feldesman Tucker Leifer Fidell, calls such concerns “overblown.” “What we’re really talking about is civilian oversight,” Fidell says. “Not to say the judge advocate general shouldn’t be a substantial bulwark in the system, but the linchpin of our concept of the relationship between military and civilian political leadership is that the former is subordinate to the latter.” Calls to Air Force General Counsel Mary Walker, Air Force Judge Advocate General Thomas Fiscus, Army General Counsel Morello, and Army Judge Advocate General Thomas Romig were not returned. The Air Force order also establishes a “dotted-line reporting relationship” from the judge advocate general to the general counsel and instructs the judge advocate general to serve as “principal military advisor” to the general counsel. “By establishing these clear lines of responsibility, authority, and communication, Secretary [James] Roche has taken important first steps in transforming the delivery of legal services to the Air Force,” Air Force General Counsel Walker wrote in a June 6 newsletter to all Air Force lawyers. Some military law experts say that the order does little to clarify the roles of the civilian and uniformed lawyers. “I do not know what a ‘dotted-line’ relationship is. Does this mean she can tell the JAG what to do?” asks retired Air Force Col. Scott Silliman, executive director of Duke Law School’s Center on Law, Ethics, and National Security. “If what the secretary is trying to do is solve the issue, I think the order simply creates more confusion.” SLIMMING DOWN Compared with roughly 4,000 armed service JAGs, the Pentagon’s general counsel offices are tiny. The Air Force Judge Advocate General Department has approximately 1,400 military lawyers and 350 civilian lawyers. The Air Force general counsel’s office has only 65 attorneys. By virtue of their size, the various JAG Corps handle matters far removed from military justice, including environmental, employment, and government contracting issues. In both the Army and the Air Force, JAGs handle nearly all civil litigation, and uniformed lawyers often work with Justice Department attorneys on procurement fraud cases. Transforming the U.S. military into a leaner and more efficient force has been a major initiative of the administration of President George W. Bush, but efforts to change the delivery of legal advice have met heavy resistance. In August 2001, Gen. Henry Shelton, then-chairman of the Joint Chiefs of Staff, advised Rumsfeld against merging the legal counsel functions of their two offices. “While you and I will usually agree on issues, there are times when my military advice, and that of the Joint Chiefs of Staff, may differ from your position . . . ,” Shelton wrote in a memo obtained by Legal Times. “The potential conflicts of interests would neither be right for our national security organizational structure nor fair to the individuals involved in providing advice.” Fidell says he supports efforts to review the structure of the Pentagon’s legal organizations. “I don’t think you need a uniformed lawyer to do labor law, environmental law, or civil litigation,” Fidell says. Political jockeying between the Pentagon’s general counsel and the judge advocates general is nothing new. In their letter to the Armed Services Committee, retired Judge Advocates General Army Maj. Gen. Fugh, Navy Rear Adm. John Gordon, and Air Force Maj. Gen. David Morehouse point out that the Air Force order “bears striking similarities” to a March 1992 memorandum during the first Bush administration that tried to centralize legal services under the Defense Department general counsel. Large portions of the 1992 memo were rescinded after the Senate committee threatened to hold up the confirmation of Defense General Counsel David Addington. Addington currently serves as counsel to Vice President Dick Cheney. Fugh, who was then Army judge advocate general, notes that current Defense Department General Counsel William Haynes II was general counsel of the Army at the time of the 1992 memo. “We had some real strong disagreements about this issue,” Fugh says. “I think [Haynes] had this reading of the law that ‘I’m supreme, so somehow you’re subservient to me.’ “ Haynes did not return calls seeking comment. If the new proposals to centralize legal support functions under the general counsel are successful, retired judge advocates fear it will harm recruiting efforts. There are also practical considerations. Asks one retired judge advocate: “Do service GCs really want to be worrying about procuring paper clips and toilet paper for installations?” Covington & Burling of counsel Togo West Jr. — who has served as Navy general counsel, Defense Department general counsel, and Army secretary — says that, in his experience, proposals to strip judge advocates of nonmilitary legal duties don’t get too far. “It’s been thought about and debated before, and what you find is that it could end up being a big money-waster,” West says. “You would need to put together and run a large organization of lawyers. Since you already have a large organization of lawyers working under judge advocate general, it doesn’t make sense.”

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