2007National Reporting

Military lawyers see limits on trial input

Military lawyers see limits on trial input
Charlie Savage
August 27, 2006

previous | index | next

WASHINGTON -- Despite assuring Congress that career military lawyers are helping design new trials for accused terrorists, the Bush administration has limited their input on their key request, that any tribunals must give detainees the right to see the evidence against them, officials said.

After the Supreme Court struck down the White House's military tribunals system in June, government lawyers began drafting legislation that would set new rules for trials of terrorist suspects. A central issue is whether prosecutors will be allowed to introduce secret evidence, which detainees would not be able to defend against.

Most military lawyers strongly oppose allowing secret evidence, arguing that such a plan would probably violate the Geneva Conventions and create a precedent for enemies of the United States to use show-trials for captured Americans. But administration lawyers maintain that classified evidence may be crucial to a case, and revealing it would compromise national security.

Members of Congress have pressured the White House to listen to the military lawyers as it drafts the legislation, and on Aug. 2, Attorney General Alberto Gonzales told lawmakers that "our deliberations have included detailed discussion" with military attorneys whose "multiple rounds of comments . . . will be reflected in the legislative package."

But the issue of secret evidence, officials said, has been off the table for all of those discussions with the exception of one meeting between Gonzales and the top military lawyers in late July. The session ended in an impasse, and the issue has not been raised again, they said.

Instead, new guidelines are being drafted by Bush-appointed attorneys in the Justice Department's Office of Legal Counsel. They met just once with a working group of military lawyers on July 28, following up with e-mail exchanges that stopped after the first week of August, according to officials.

At the start of the July 28 meeting, the officials said, the administration's lawyers announced that there was no point in debating the secret evidence issue at their level, so all their subsequent discussions were limited to more minor concerns -- mostly wording changes and procedural matters.

The limits placed on the discussion with the military lawyers, called the Judge Advocate General corps, have angered a group of retired military attorneys. They believe that the administration's dismissal of JAGs' views has been a prime factor in such setbacks as the Abu Ghraib torture scandal.

"The [Justice Department] should have learned that a failure to involve the JAG community can lead to problems," said retired Major General Nolan Sklute , who retired as the Air Force's top lawyer in 1996. "If they are talking to the JAGs only about superficial matters . . . that indicates that this is about form instead of substance, and nobody has learned any lessons out of this."

The Justice Department press office did not respond to calls requesting comment.

The tension surrounding the plans for new terrorist trials is the latest chapter in a long effort by White House political appointees to exert greater control over career military lawyers.

In November 2001, when White House lawyers drew up a presidential order authorizing an initial round of trials for accused terrorists, they allowed the JAGs to send one representative to look at the draft and then refused to let him take notes. The final order included none of the suggestions offered by the uniformed lawyers.

And in early 2003, when a Pentagon working group came up with a report on detainee interrogations that said certain harsh interrogation techniques were legal, top JAGs insisted that such a stance would undermine the Geneva Conventions and put interrogators at risk of prosecution for assault. The civilians ignored their views.

Many former JAGs trace the current disputes back to Vice President Dick Cheney's efforts to rein in the JAG corps in the first Bush administration.

In 1991, when he was secretary of defense, Cheney asked Congress to pass a law to put politically appointed attorneys -- including the Army's general counsel, William Haynes II , who is now the Pentagon general counsel -- in charge of the JAGs. But Congress refused.

The following year, Cheney's legal team tried again to take over the JAG corps, this time using an internal Pentagon order. But they rescinded the plan after Congress made it an issue during the nomination of David Addington -- Cheney's longtime legal adviser and now his chief-of-staff -- to be the Pentagon general counsel.

The issue of the military lawyers' independence resurfaced after the current administration took office.

In May 2003, the administration issued an order giving the Air Force general counsel supervisory authority over Air Force JAGs, essentially a resurrection of the plan Congress had rejected in 1992. And in February 2005, Haynes proposed letting political appointees select who would be the top military lawyers for each service.

Neither plan succeeded. Congress forced the Air Force to rescind its order, and Haynes' s proposal to change the way the top military lawyers are selected withered after generating an unenthusiastic response from service secretaries.

Through spokespeople, Cheney, Addington, and Haynes all declined to be interviewed. But administration defenders contend that it is more efficient for military leaders to have one legal counsel rather than rival and competing sources of advice. And they say, as a matter of principle, all military officials should be subject to control by politically accountable civilians.

"I do not happen to believe that because you put a uniform on, you have more integrity than a civilian person put there by the president," said Steven Morello , who was Army general counsel from 2001 to 2004.

But retired military lawyers insist that their independence is an important check-and-balance for what the military can be ordered to do. And legal scholars link Cheney's efforts to limit the influence of the JAGs to the administration's other efforts to expand executive power.

"This didn't start with the torture fight," said Martin Lederman , a Georgetown law professor who worked in the Justice Department from 1994 to 2002. "They've believed in this [eliminating JAG independence] as a matter of religious faith for a long time. They knew it was going to matter, even though they didn't yet know what it was going to matter for."

Responding to the administration's attempts to marginalize the JAGs, Congress has tried to strengthen their authority in recent years, only to meet with opposition from the White House.

In October 2004, Congress -- led by Senator Lindsey Graham, a South Carolina Republican and a reservist military lawyer -- passed a law prohibiting Pentagon officials from interfering with the JAGs' ability to "give independent legal advice." But when Bush signed the law, he issued a signing-statement saying that the legal opinions reached by his political appointees would still "bind all . . . military attorneys."

And a House-Senate conference committee is now considering legislation to elevate the top lawyers in each service from two-star generals to three-star generals in order to increase their clout. But the administration has urged Congress to reject the proposal, saying in a policy statement that it would "undermine the president's flexibility" and "add unnecessary and rank-heavy bureaucracy."

But backers of the proposal, including Ed Rodriguez , president-elect of the Judge Advocates Association, said giving the top JAGs a third star would make it harder to discount the military attorneys' views on such crucial matters as whether secret evidence should be admissible in a trial. If the JAGs' advice had been taken in the first place, he said, the Supreme Court might not have struck down the tribunals in this year's case of Hamdan v. Rumsfeld.

"A third star will have a huge impact if it comes to pass," said Rodriguez. "This is a battle that is being fought under the surface, but we're trying to prevent the next Abu Ghraib and Hamdan from happening."