RESTRAINT THROUGH PROFESSIONAL ETHICS

The chief influence of American military lawyers on the 2006 Military Commissions Act was to ensure that commission proceedings could not rely on evidence kept secret from defense counsel. The JAGs also persuaded Secretary of Defense Donald Rumsfeld to withdraw approval for certain interrogation techniques. In other respects, their views were largely rejected, though they continued to resist the system of military commissions established by the Bush administration with congressional approval. In particular, they had sought to show how the Geneva Conventions require Al Qaeda members to be prosecuted in the equivalent of regular courts-martial, rather than in a venue affording defendants weaker procedural protections. The JAGs are empowered by statute to administer the country's courts-martial.

The controversy between the military lawyers and the White House had a longer history than reflected in the 2006 legislative debate. It began in the early 1990s when Dick Cheney, then secretary of defense in the Bush-Quayle administration, sought to curtail the JAGs' independence by subordinating the top military lawyer in each branch to a “general counsel,” a civilian political appointee. When Congress rejected Cheney's proposal, he sought to implement it by way of administrative orders, but met with resistance. As vice president, Cheney renewed his efforts. At that point, retired JAGs asked the Senate Armed Services Committee to intercede.