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In government offices, tension nearly always exists between the ranks of career employees and political appointees. But in the armed services — where the chain of command stifles public dissent — such discord usually plays out behind closed doors. Over the past year, several retired uniformed lawyers have taken the remarkable step of going public with concerns related to the positions taken by Defense Secretary Donald Rumsfeld, particularly those related to the treatment of detainees at Camp X-Ray in Guantanamo Bay. Most notably, in October three retired judge advocates general filed an amicus brief with the Supreme Court arguing that the administration violated international law and military regulations by holding detainees captured in Afghanistan without due process or even formal hearings to determine their status. By adding their credible voices to the chorus of administration critics, the former military officers have shined a light on the rift between military lawyers and politicians inside the Pentagon. Northwestern University law professor Douglass Cassell calls the brief “extraordinary.” He adds: “I’ve never seen a case where former JAGs come forward and publicly file a brief against the United States in a case.” Retired Navy Judge Advocate General John Hutson, dean of Franklin Pierce Law Center in New Hampshire and one of the brief’s three sponsors, says he faults the administration, not military leaders, for pursuing policies he considers harmful. “What policy-makers ought to be thinking about is the reputation of the United States. We have the opportunity to demonstrate to the entire world what it is we stand for and what rule of law means,” Hutson says. “It’s not the rule of law if you apply it when it’s convenient.” Hutson adds, “Our service men and women will surely be taken prisoner in future wars. We want to be able to argue that our prisoners be treated in accordance with Geneva Conventions.” Plans to try suspected terrorists before military commissions evoked similar discomfort among judge advocates when they were announced in November 2001. Although many of the concerns raised by President George W. Bush’s initial military commission order have been allayed, some military lawyers remain skeptical that commissions will offer fair trials. Many JAGs support the concept of military commissions, but object to procedures that diverge from those used in modern courts-martial and resent that planning for the commissions has been tightly controlled by civilian lawyers. “Their attitude is clearly ‘We’re smarter than you,’ ” says one retired high-ranking JAG. “ They don’t want to hear anything contrary to their own thinking.”

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