Is independent, nonpartisan legal advice from military lawyers on the chopping block?
Be sure to check the 24 Feb update at the end of this post...
Last night’s announcement that the Administration is “requesting nominations for the Judge Advocates General for the Army, Navy and Air Force” is unprecedented in my memory and is, frankly, very disturbing as it implies the existing senior military lawyers are about to be fired, en masse.
I say “unprecedented” because these are military legal officers who, unlike politically appointed civilian legal officials elsewhere in government, are never expected to be replaced on a change of Administrations. Since military lawyers are nonpartisan, no turnover is–or should be–expected in an organization like the armed forces that aims to be politically neutral.
Indeed, the Supreme Court, as discussed below, says the military should be “insulated from both the reality and the appearance” of partisanship. Mass firings by politicos don’t do that.
To the contrary, stripping the armed forces of its senior uniformed legal advisors tasked by law to provide independent advice sends all wrong messages throughout the military legal community, not to mention to commanders and their troops.
In my opinion, Congress should vigorously demand a full explanation. And, if necessary, it should use its Constitutional powers to do whatever it takes to ensure that America’s defense establishment will have unfettered access to the kind of nonpartisan, independent legal advice from its judge advocates that current law demands and that America’s security needs.
Yes, a new Administration has the right to develop and implement policies it prefers, and to have leaders who will carry them out…so long, of course, as the policies are legal. However, this action indicates a misunderstanding of how the Department of Defense (DoD) legal community operates as it has both nonpartisan military lawyers (Judge Advocate Generals or JAGs), as well as separate civilian staffs headed by a politically appointed general counsels (GCs).
The politically appointed general counsels
Thus, in the legal realm, the partisan policymakers in the DoD are the politically appointed GCs for each service. By law, they “perform such functions” as their politically appointed service secretary “may prescribe.”
The statutory language for the DoD GC is similar in that the law says “He shall perform such functions as the Secretary of Defense may prescribe.” Additionally, the law makes the GC “the chief legal officer of the Department of Defense.”
In short, if the Secretary of Defense or, for that matter, the President, wants legal advice from attorneys imbued with partisan ideology, there are certainly civilian DoD lawyers from whom to get it.
Military judge advocates
The top military attorneys (The Judge Advocate Generals or TJAGs) are, by design, different from their politically appointed civilian counterparts. In the first place, though the President ultimately nominates the TJAGs, he can only do so, the law tells us, if “the officer selected is recommended by a board of officers.” This no doubt is designed to help facilitate the selection of TJAGs “insulated from the reality and the appearance” of being partisan actors.
Military lawyers have a unique responsibility in the armed forces in that they serve as decidedly nonpartisan guardians of the rule of law. Indeed, the law (10 U.S.C. §9037) for the Air Force TJAG (and JAGs general) make this mandate clear:
(f) No officer or employee of the Department of Defense may interfere with-
(1) the ability of the Judge Advocate General to give independent legal advice to the Secretary of the Air Force, the Chief of Staff of the Air Force, or the Chief of Space Operations; or
(2) the ability of officers of the Air Force who are designated as judge advocates who are assigned or attached to, or performing duty with, military units to give independent legal advice to commanders. (Emphasis added)
Similar provisions of law requiring independent legal advice exist for the Army and the Navy.
The statutory architecture makes it rather clear that Congress, exercising its Constitutional authority under Article I, Section 8, Clause 14 to “make rules” for the military, did not want legal advice for the military coming solely from partisan political appointees. Rather, it wisely decided it wants no “officer or employee” of DoD to interfere with the rendering to commanders of independent legal advice by judge advocates who, as uniformed lawyers, are required to be nonpartisan.
The need for nonpartisan, independent, legal advice
And, yes, America’s defense establishment needs nonpartisan, independent, legal advice. Military lawyers have a history of telling leaders what they need to hear versus what they may want to hear.
An example is the controversy over torture of detainees in the years after 9/11. As Charlie Savage memorialized in his book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, then Air Force TJAG Lt Gen Jack Rives was among the first of the uniformed lawyers to oppose torture and other excesses by penning a series of what Savage called “vehemently argued memos.” Believe me, that was an unpopular position in 2003.
In 2007 former Homeland Security Secretary (and previous DoD General Counsel) Jeh Johnson reflected:
I’m here to salute the JAG community…To be blunt, there are civilian political appointees around you who have tried to shape the law to fit the policy and expected you to fall in behind them. Against your most basic military training, you have had to take the extraordinary step of reminding your civilian leadership, and the public at large, of the rule of law. You were right to do so.
Rules of Engagement
Though I don’t know what prompted the decision to seek out replacements for the serving TJAGS, the Secretary’s confirmation hearings may provide some insight. He complained about “restrictive rules of engagement” that he says made it “more difficult to — to defeat our enemies.” The New York Times reports:
One of the stranger moments in a confirmation hearing on Tuesday for Pete Hegseth, President-elect Donald J. Trump’s pick to lead the Pentagon, was when a senator asked the former Fox News host to define the word “jagoff.”
The question from Senator Jack Reed, Democrat of Rhode Island and the ranking member of the Senate Armed Services Committee, was prompted by a comment that Mr. Hegseth made to his military platoon, as he wrote in his 2024 book, “The War on Warriors.” He made the comment during his Iraq deployment in 2005 after hearing a presentation by a JAG officer, or a member of the U.S. Army Judge Advocate General’s Corps, who defend Army soldiers in legal matters.
After he and his team were briefed by the JAG officer on the proper protocols for firing on an enemy with a rocket-propelled grenade, Mr. Hegseth disparaged one of the rules of engagement, saying it was “going to get people killed,” he recalled in his book.
Evidently, there is unfamiliarity as to how rules of engagement (ROE) are developed and who directs them. As the Chairman’s Joint Chiefs of Staff Instruction 3121.01B (in place since 2005) plainly indicates, ROE comes from commanders and civilian leaders, not JAGs:
Additionally, Joint Publication 3-60, Targeting, which was put in place in 2018 during the first Trump administration, shows the role the President, the SecDef, and commanders play in ROE development.
It also makes it obvious that the JAG’s role is to provide advice:
In other words, if ROE is too restrictive it is civilian political authorities – the President and Secretary of Defense – who can make whatever changes they want, so long as they comply with the law.
While all ROE must comply with the law, in virtually every case ROE contains limits not legally required; in fact, policy limitations – not the law – are typically the source of consternation.
The restraints not required by law exist because policymakers and commanders may believe that certain policy restrictions in a given circumstance may better achieve national goals and mission requirements. That said, they can be overly restrictive, but this is why a mechanism exists to adjust or remove entirely those policy restrictions that are proving to be counterproductive.
To be crystal clear, JAGs advise on ROE but it is the product of civilian and military leaders’ decisions. It is the SecDef and ultimately the President who bear the responsibility for ROE.
Lawfare
Why is independent legal advice from nonpartisan military lawyers so important? In the 21st century compliance with the law is not just a legal and moral imperative, it is operationally essential. As I’ve said repeatedly for over two decades, we are living in the age of lawfare. I noted a few years ago:
In my current view, lawfare is the use of the law to accomplish what otherwise might require traditional military means – typically kinetic.
Thus, the law can be employed as something of a weapon – an instrumentalization of the law that purists abhor but which to me reflects reality. Whether such use is for good or for ill depends much upon who is wielding it and why. There are legitimate forms of lawfare that can serve to mitigate the destructiveness of war, but there are also abusive interpretations which seek to turn adherence to the law into a vulnerability to be exploited by malevolent actors.
The problem is that today malevolent actors are, with some real success, exploiting lawfare. There is never a time for politicized judge advocates, but it is especially important in today’s environment that the Nation and, particularly, warfighters in the field get independent legal advice from uniformed lawyers schooled by years of military experience.
I do not know any senior officers who do not count their judge advocate as among their most valued advisors in combat situations They know they will get independent legal advice that will, as noted, tell them what they need to hear versus what they might want to hear.
The indispensability of legal advice in combat operations is not an especially new phenomenon. As JP 1-04 (in effect since 2016) states:
Put another way, preserving access to nonpartisan, independent legal advice in the field from uniformed lawyers is a warfighting matter of the first order.
Concluding thoughts
Candidly, if cooler heads do not prevail, and the TJAGs are actually fired by the Secretary, anyone nominated to replace them will be viewed by many, both inside and outside the ranks, as simply a compliant politico. What is more is that the unexplained removal of the current TJAGs will also likely be considered as a petty act unworthy of the leadership of a great nation. It will make reasonable people wonder why such hasty action is being taken.
Nothing good can come from any of that.
America’s defense should not be a partisan issue, and a politicized military is anathema to a democracy. In fact, the Supreme Court has warned against even the appearance of partisanship.
In Greer v. Spock the Court approved a military directive barring partisan political campaigning on a military base as the policy rightly aimed at keeping the military “insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates.” The Court added:
“Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control. It is a policy that has been reflected in numerous laws and military regulations throughout our history.”
The U.S. has long benefited from the public’s trust in its armed forces. I believe a key reason the military, unlike so many institutions in our society, still retains such a considerable degree of public trust is that it is perceived as altruistic and nonpartisan.
Again, the party in power has the right to implement lawful policies. And they can rightly expect that the TJAGs and the military lawyers who work for them will carry out lawful directives, even if they happen to personally disagree.
The law for military members is rather definitive on this. The Manual for Courts-Martial provides that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” (The Manual, by the way, is an Executive Order prescribed by law).
The point is that America’s military continues to be best served by uniformed lawyers who have come up through the ranks and who give nonpartisan, independent legal advice, as well as those civilian counsels who are selected by the party in power to work in the Department of Defense.
Attempts to politicize the military in any way continue to be ill-suited to the best interests of America’s national security. I believe Congress needs to examine this matter to ensure that what it required in the law – independent legal advice from military lawyers – is not being jeopardized, and that such advice from JAGs is “insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates.”
Is independent, non-partisan legal advice from military lawyers on the chopping block? For the sake of America’s military and the security of our nation, we should hope not.
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Update (24 Feb): The TJAGs have been fired. I invite you to read former Secretary of the Air Force Frank Kendall’s op-ed this morning wherein he explains why of all the firings of top military officers that took place last Friday what “frightens [him] even more is the removal of three judge advocates general, the most senior uniformed legal authorities in the Defense Department.”
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