Pentagon Studies Raising Military Lawyers' Rank

By Josh White Washington Post Staff Writer
Wednesday, December 21, 2005; Page A29

The Defense Department will evaluate whether it should raise the rank of the armed services' judge advocate generals (JAGS) to three-star positions after an independent panel of experts recommended giving the top military lawyers more power and authority within the Pentagon.

In a memo distributed Monday, Gordon R. England, acting deputy defense secretary, asked top officials to review the issue in the wake of a long-simmering controversy between the military lawyers and the Pentagon's civilian lawyers about legal issues in the government's anti-terrorism efforts. The Pentagon's general counsels, who are political appointees, in some cases have disregarded the military lawyers' concerns about tactics used.

England wrote in his memo that "legal issues have become an increasingly important factor in military operations" and praised judge advocates as "indispensable to commanders on today's battlefields." In a supplemental document, David S.C. Chu, undersecretary of defense for personnel and readiness, was tasked with reviewing the JAG rank issue. England also forwarded the panel's report, which was mandated by Congress last year.

Defense Secretary Donald H. Rumsfeld and other top Pentagon officials have opposed increasing the JAG positions to three stars. A Pentagon spokeswoman said yesterday that it was too early to comment on the review.

The military's struggle with detainee abuses highlighted the clash between the JAGs and the civilian lawyers over the past two years; the military lawyers had strongly cautioned that approving extreme interrogation tactics could cause confusion in the field and could lead to abuses and public relations problems. Their concerns were shelved by civilian lawyers, who advocated the Bush administration's position that interrogators should have more flexibility in questioning suspected terrorists.

Memos the JAGs wrote explaining their concerns became public after prison abuses were reported last year, and Senate Armed Services Committee members expressed frustration that the military lawyers -- who accurately predicted the problems that would arise -- had been largely shoved aside.

The Pentagon review comes three months after an independent review panel recommended elevating the JAG ranks so as to increase their ability to influence senior decision makers at the Pentagon and to get them "a seat at the table" during deliberations on critical issues.

The Senate, led by Sen. Lindsey O. Graham (R-S.C.), who is a reservist judge on the Air Force Court of Appeals, has been trying to pass legislation that would mandate JAG positions be at the three-star level, but the language has not been included in the Defense Authorization Act two years in a row.

While senators this year approved the move, House-Senate conferees two weeks ago changed the bill's language to make the JAGs at minimum a two-star position, leaving open the opportunity for the services to put three-star generals in the slots.

"The bottom line is the independence of the offices of the judge advocate generals for each of the services," said retired Maj. Gen. Nolan Sklute, who was the Air Force's top military lawyer from 1993 to 1996. "With three stars, they would have a place at the table. Their voice should be heard and their independence should not be tainted in any way, shape or form. They need to give their unvarnished, apolitical, straightforward advice, without any pressures being placed on them from any source."

David Sheldon, a military lawyer in Washington, said he believes the debate is an extension of the power struggle between Congress and the White House over the executive branch's authority to prosecute the war. "On the service side, there are serious concerns about the position the administration has been taking," Sheldon said.