Wednesday, October 29, 2014

Do Judge Advocates General have incompatible roles?

Maj Gen (res)
Avichai Mendelblit
Haaretz, the Israeli newspaper, has this interesting op-ed by Bar-Ilan University professor Yedidya Stern concerning a current controversy over whether a former Military Advocate General should be indicted. The author suggests that the Attorney General is required to perform two inconsistent roles -- advisor and prosecutor -- and that these should be separated:
A fascinating example of the confusion between the two arose in the case of the current cabinet secretary and former military advocate general, Avichai Mendelblit.
When Mendelblit was military advocate general, then-Chief of Staff Gabi Ashkenazi told him he had a copy of what has since been dubbed the “Harpaz document” and asked what he ought to do about it. The following day Mendelblit advised the chief of staff to inform the attorney general, which Ashkenazi did.
During the day in between, Mendelblit spoke with one of the attorney general’s aides but did not tell him what he had heard from Ashkenazi. Because of this delay, police have recommended indicting him for obstructing an investigation and breach of trust.
In this case, the grotesque and the tragic meet: An outstanding public servant, a major-general in the reserves, has been tarred for something that doesn’t reach the level of even a trifling offense. One must hope the attorney general will quickly decide to reject this bizarre recommendation.
Nevertheless, this story raises an issue of principle: Should the military advocate general act as the chief of staff’s legal adviser (as stipulated by the Military Justice Law), or as “the person in charge of imposing law within the army” (as stipulated by that very same law)? If he is the chief of staff’s attorney, the information he received from Ashkenazi was covered by attorney-client privilege and he was obligated to keep it confidential. And if so, what was his crime?
That’s why the dual identity of the legal adviser (whether the government’s or the army’s) constitutes a trap. If he acts on behalf of his client, he’ll be accused of undermining the public interest. If he acts on behalf of the public interest, his client – the chief of staff or minister – will be deprived of independent legal advice.
Even though splitting the job is necessary, many oppose the idea out of fear of undermining the rule of law. What I’m suggesting is the exact opposite: The role must be split in a way that will bolster both offices’ ability to do their jobs. We need fresh thinking, which must then be translated into law, to ensure that both legal counsel and the rule of law are strengthened while criminal prosecution is bolstered.
What this suggests is that countries should not only have Directors of Military Prosecutions who are independent of the chain of command, but that they should also be independent of the Judge Advocate General if the JAG's functions include advising the service chief or subordinate commanders. Query: doesn't it also mean that the U.S. Attorney General could either supervise federal criminal prosecutors or advise the President and cabinet departments -- but not both?

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