Military Justice

First Thing We Do ....

By Paul Rosenzweig
Monday, December 5, 2016, 9:52 AM

"The first thing we do, let's kill all the lawyers." —Dick the Butcher, Henry IV, Part 2.

This famous line from Shakespeare is often thrown at practicing attorneys as a mark of disdain. Of course, as most lawyers know, Dick (and his confederate Jack Cade) were rebels and the idea of killing lawyers was their way of destroying law and order. Thus, properly interpreted, Shakespeare was speaking well of lawyers and of their role in maintaining the rule of law.

With that perspective, recent actions in the National Defense Authorization Act of 2017 (as reported by the Conference Committee) are troubling. Section 502 of the bill repeals certain statutory requirements regarding general flag officers in the military. Buried deep in the section is a provision that eliminates the requirement that the Judge Advocate General be a lieutenant general. Another eliminates the current statutory requriement that the Army JAG corp have three brigadier general billets. Other provisions make similar statutory modifications in the Navy, Air Force, and Marine Corps. The bottom line result is a) the JAG for each service may now, at the discretion of the service, be filled either by a three-star or a two-star officer; and b) there are fewer one-star JAG positions available through which officers may advance their carreers. The nominal ground for this change is part of a larger reduction in the overall number of flag officers in the military (provisions for which can be found in Section 501 of the bill).

I understand completely that, as the military down-sizes, the officer corps must down-size as well. And no part of any service should be immune from reductions. But in a heirarchical organization like the military, the systematic reduction in rank of the lawyers will have the (possibly unintended) effect of reducing their influence on military operations. And this comes precisely at a time when military legal matters are getting more complex, not less, and when there are some reasons to be concerned about the military's possible enlistment in potentially problematic activities by the national command authority. For now, one can only hope that the services exercise their discretionary authority to maintain the role of the JAG Corps in operational affairs, lest Dick the Butcher's prophecy become reality.

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