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Inside the Ring

- The Washington Times - Thursday, February 12, 2009

DoD rule of law

The new Pentagon general counsel this week sent letters to all the military lawyers setting the tone for the policies to be followed under the new administration. The main goals for the new top lawyer, Jeh Charles Johnson, are making sure the rule of law is followed and assuring a "collegial and collaborative working relationship" between military and civilian lawyers.

Mr. Johnson, who was sworn in as general counsel Tuesday, stated in introductory remarks to all legal counsels of the military services and judge advocates general that he has two principles "that will guide me in office."

"The first concerns rule of law," wrote Mr. Johnson, a former Air Force general counsel. "Our advice concerning the rule of law must remain consistent throughout changing and challenging times. Adherence to the rule of law permits us to occupy the moral high ground and display the very best of American values."

Mr. Johnson then went on to cite Justice Sandra Day O'Connor, who wrote in the 2004 Supreme Court case of Hamdi v. Rumsfeld that "it is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

Some defense and military officials say the Supreme Court ruling in the case of Louisiana-born Yaser Esam Hamdi, who claimed Saudi citizenship when captured in Afghanistan, undermined Pentagon efforts to hold and interrogate terrorist suspects. The ruling affirmed government power to detain unlawful enemy combatants but also required detainees who are U.S. citizens to be able to challenge their detention before an impartial judge.

The reference to the ruling appears to be part of an effort by Mr. Johnson and others who oppose the Bush administration policy on terrorist detainees to demand that all suspects, regardless of nationality, be granted access to federal courts.

One defense official noted that Mr. Johnson's previous law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP filed a court brief supporting the American Bar Association position that all terrorist suspects should be given access to federal courts.

The defense official said the emphasis by Mr. Johnson on the rule of law suggests that he believes the Pentagon was not following the law during the Bush administration.

President Obama has ordered the closing of the prison at Guantanamo Bay, Cuba, within a year, although the issue of what to do with the 245 detainees held there has not yet been decided. Civilians appointed by Obama administration officials currently are going over all the detainee rules and regulations and making changes, according to defense officials close to the issue.

Mr. Johnson did not return an e-mail request seeking comment.

Pentagon spokesman Geoff Morrell said that, regarding detainee-affairs policy, Mr. Johnson, like Mr. Obama, is "firmly focused on the future."

"And [Mr. Johnson's] memo to his new staff is in no way meant to be a commentary on past practices by this department or any other," Mr. Morrell said.

Mr. Johnson did not participate in the amicus brief filed by his former law firm and was unaware of it, Mr. Morrell added.

Nominee delay

Defense officials say the Obama administration is having a difficult time finding a new undersecretary of defense for acquisition, technology and logistics, the influential weapons-buying post.

The administration's choice for the job is Harvard University professor Ashton B. Carter, a former assistant defense secretary, but his nomination has run into obstacles, the officials said. Financial questions have been raised about Mr. Carter's past activities, including government reimbursement for a taxi cab ride he took from Washington to his residence in Massachusetts, the officials said. Another question has been raised about a contract Mr. Carter let while he was an assistant defense secretary during the Clinton administration. A larger question regards the fact that Mr. Carter's expertise is in policy areas, and he has little experience with the highly technical aspects of weapons procurement. The officials spoke on the condition that they not be named.

Mr. Carter did not respond to an e-mail request for comment.

Chiefs on 'Don't ask, don't tell'

Two senior military officers who were asked recently about the possibility that the Obama administration will change the current policy on allowing homosexuals to serve openly in the military noted that the policy of "Don't ask, don't tell" is the law of the land.

Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, was asked last week about his views on changing the current policy.

"We have not just a policy; we have a law which was passed in about 1993," he said after a speech at Princeton University on Feb. 5. "And I've said many times that should the American people, through their legislators, want to change that law and the law gets changed, as I do with our other laws, I follow those.

"And if that comes up in terms of reviewing, I would review it thoroughly, give my advice to the president, as is my responsibility, and then that decision gets made, and whatever the decision is, again, I march off," he said.

Last month, Army Gen. Peter W. Chiarelli, vice chief of staff of the Army, was asked a similar question during a breakfast with defense writers and gave a similar response.

"I think attitudes over time on anything, quite frankly, evolve," Gen. Chiarelli said. " 'Don't ask, don't tell' is the policy, it's the law, it's what we work under today. That's what we've been doing, as you say, for 16 years. It would be hard for me with any kind of certainty to give you any feel for how attitudes in the military have changed over time. I just can't tell you. But that's currently the policy."

The general declined to give his personal views on the issue other than to repeat that he supports "the law of the land" as it now stands. He said he was unaware if any studies or polling had been done to see what attitudes in the services would be to any policy change.

Defense officials said the Obama administration is seeking to avert a repeat of what happened in the early 1990s when President Clinton set off a political battle that engaged military commanders and politicians early in his presidency. Top military commanders at the time opposed the decision to allow homosexuals to serve openly out of concern that that would undermine good order and discipline.

The Obama White House has said that it plans to change the policy but that it will consult with military officials before acting.

Southern threat

U.S. Joint Forces Command made headlines with a recent report on future threats that broached the possibility of a collapse of the state of Mexico.

However, special correspondent Rowan Scarborough reports that a secret Defense Intelligence Agency report in 2000 made similar predictions.

Said the Joint Forces report, "The growing assault by the drug cartels and thugs on the Mexican government over the past several years reminds one that an unstable Mexico could represent a homeland security problem of immense proportions to the United States. In terms of worst-case scenarios for the joint force and indeed the world, two large and important states bear consideration for rapid and sudden collapse: Pakistan and Mexico. Any descent by Mexico into chaos would demand an American response based on the serious implications for homeland security alone."

Said the secret DIA report in 2000, "Narcotics trafficking and its ability to intimidate and corrupt officials at all levels will pose a formidable challenge to Mexico's government and society in general. Mexican criminal groups will become even more involved in both the movement and distribution of cocaine serving the U.S. market. Mexico also will remain a heroin supplier and the main source for most of the foreign-derived methamphetamine and marijuana in the United States through 2020."

• Bill Gertz covers national security affairs. He can be reached at 202/636-3274, or at insidethering@washingtontimes.com.