Graham focuses on glimmer of TJAGs’ 3rd star

Sen. Lindsey Graham (R-S.C.) worked with the Bush administration to find a compromise on how to try military detainees, but he still finds himself at odds with the White House over an issue he’s been pressing for three years.

Graham, chairman of the Senate Armed Services Personnel subcommittee and a reserve Air Force lawyer, this year resumed his push to allow the judge advocates general (TJAGs) in each branch of the military to earn a third star.

The TJAGs lead each service’s judge advocate general, or more commonly known as the JAG corps. TJAGs are two-star generals. 

The Senate overwhelmingly passed Graham’s provision in the past two years as part of the annual defense reauthorization bill, but faced strong opposition from the White House and an uphill battle with House Armed Services Committee Chairman Rep. Duncan Hunter (R-Calif.)and some House conferees.

And this year was no different. 

The debate over the promotion of the TJAGs came at the same time as Graham, with Sens. John Warner (R-Va.) and John McCain (R-Ariz.), the chairman and vice chairman of the Armed Services panel respectively, were battling with the administration over military tribunals and detainee treatment. 

Retired TJAGs and other supporters of Graham’s measure argued that increasing the rank of those officers could have prevented political legal advisers from leading commanders astray on the controversial issue of detainee justice and treatment.

“The military legal community has taken some strong, appropriate stands to keep the country on track when it comes to fighting the war on terror,” Graham said in an interview.  And as Congress battled with the administration over how to write legislation to authorize military tribunals, military lawyers “provided strong legal advice,” Graham added.

But defense authorization conferees caved into the administration’s pressure once again.

“I am very disappointed,” Graham said. But he vowed to bring the issue up again as part of the 2008 defense authorization bill and “as long as I am here,” he added.

Graham believes that adding a third star to the TJAGs epaulettes is a long overdue reform.

“I hope that the administration and the House will be more understanding next year,” he said.

“The JAGS have been very strong and courageous in talking about problem areas” in the legal infrastructure of the war on terrorism.

Each branch’s TJAG testified that the administration should have incorporated the rules of military justice when it created the commissions, which were later rendered unconstitutional by the Supreme Court. Also, some of the Pentagon’s senior lawyers voiced concern about the fairness of preventing a defendant from hearing and confronting evidence against him or her  — a crucial point in the debate over how military tribunals should handle the detainees. 

Supporters of the change in rank argue that boosting the status of the TJAGs, the military’s most senior legal advisers, would give them more influence in Pentagon deliberations.

An extra star means the legal officers would be allowed in high-level Pentagon meetings now closed to two-star generals. Supporters say that staff at the Pentagon often set up meetings where only personnel at the three-star level and above are invited. The TJAGs are automatically left out.

“In reality the top military lawyer ought to be present at every high-level meeting because there are many times where it is important for an attorney to spot issues and render advice in a timely manner and on the spot as opposed to later when things have gone array,” said a former military lawyer and a supporter of Graham’s legislation.

“It is supposed to be an effort to raise the prestige of the TJAGS and give them more access at the table,” said retired Admiral Don Guter, the Navy’s top JAG from 2000 to 2002 and now the Dean of the Duquesne Law School in Pittsburgh, Pa.

Critics of the proposal in Congress say TJAGs’ voices were and are being heard. “They have extraordinary latitude in statute to provide their opinions,” said a House GOP aide. The House does not oppose having three-star TJAGs, but it is up to the service chiefs to promote them, said another House source. The source added that over the past couple of years Congress took several measures to empower the TJAGs.

Guter added that after the attacks of Sept. 11, 2001, and during the run up to the wars in Afghanistan and Iraq, JAGs felt “marginalized.”

A promotion “will make it more possible for us to have access and emphasize the independence that the JAGs could have … giving independent advice free from the taint of politics,” Guter said.

At issue is a jurisdictional controversy that has been brewing for years within the Pentagon. A number of retired TJAGs wrote to Hunter, Warner and high-ranking military officials this year, arguing that the TJAGs’ position has been undermined by an administration directive granting more power to the general counsel of each branch.

Each branch of the military has a general counsel appointed by the administration who answers to the general counsel for the entire Department of Defense, who, in turn, answers to the Secretary of Defense. The retired TJAGs involved in this effort have argued that the structure threatens the independence and undermines the influence of their successors.

A third star would bring the TJAG positions into greater parity with the general counsel positions, they say.

Many equivalent professional groups, such as the chief of engineers and the head of the medical corps, have three stars, Graham said.

Last year’s House bill allowed the secretary of each military service to give TJAGs a third star provided their promotion did not breach the overall cap. But that would mean the secretaries would have to take a star from another officer in their branch, something ranking generals are unlikely to do during a war.