Understanding the Role of Military Lawyers in the War on Terror: A Response to the Perceived Crisis in Civil-Military Relations

Abstract:     
This article is a response to an article published in the UCLA Law Review by John Yoo and Glen Sulmasy which argued that the military lawyers violated the principle of civilian control of the military when they disagreed with some of the Bush administration's policies in fighting the War on Terror. In this article, I will first show how Sulmasy and Yoo's view of civilian control of the military is a narrow, inaccurate reflection of the principle. I suggest that when Sulmasy and Yoo refer to civilian control of the military, what they are really arguing for is politicization of the military by one branch of government. Such a narrow view of civilian control of the military is without historical precedent and is, in fact, antithetical to our constitutional structure. In suggesting a more limited role for uniformed lawyers, Sulmasy and Yoo contend that the Global War on Terror is so different from wars of the past that many of the traditional legal norms do not apply. The refrain, 'the events of September 11th changed everything,' has been a constant theme by Bush administration officials to justify any number of actions. While this refrain has been constant, I suggest that both the applicability of the laws of war and the role for military lawyers - with unique expertise in the development and implementation of these laws - are still critical aspects of the War on Terror. This article suggests a more accurate explanation for why military lawyers were opposed to many of the Bush administration's proposals related to the treatment of detainees. Finally, this article will discuss the ethical obligations of military and other government lawyers, a matter not discussed by Sulmasy and Yoo.

Keywords: national security, separation of powers, war on terror, detainee treatment, military lawyers

JEL Classifications: K33, K, K19

Accepted Paper Series