Are Military Lawyers Being Sidelined?

On Sept. 2, President Trump announced that the U.S. military had struck a Venezuelan vessel allegedly carrying narcotics, killing 11 people. The strike—justified as “self-defense” as part of the U.S.’s counternarcotics strategy—drew sharp criticism. It has since been followed by two other U.S. strikes on Venezuelan vessels. Most experts agree that Trump’s controversial order violated domestic criminal law and international human rights law and exceeded the president’s Article II foreign relations and commander-in-chief authorities, constituting what Marty Lederman calls an “indefensible breach of the fundamental norm against targeting civilians.” But the attacks also raise serious questions about the availability and effectiveness of government lawyers throughout the chain of command who would have—or should have—raised red flags before this operation commenced.

In an earlier Lawfare article, I wrote:

[N]o military lawyers outside the Pentagon—the judge advocate officers ranging in rank from junior lieutenants to the senior colonels (Army, Air Force, Marines) and captains (Navy, Coast Guard)—assigned to operational units and bases, posts, camps, and stations worldwide, can serve as adequate bulwarks against the rapid erosion of the Defense Department’s commitment to the rule of law.

As a former judge advocate officer, I have grown increasingly concerned in the six months since I wrote it, and especially with this recent action. When those bulwarks are removed or ignored, force is used in criminal ways that delegitimize the armed forces.

The Tren de Aragua boat attack has been framed by the administration as if it is legally equivalent to a strike on a terrorist group in a foreign country during military operations sanctioned by Congress. That framing raises serious questions about the availability and effectiveness of government lawyers throughout the chain of command who would have or should have raised red flags before this operation commenced. Having advised operational headquarters on the law of jus ad bellum and the laws of armed conflict (LOAC, jus in bello), and having taught those subjects, as well as international human rights law, at both West Point and the Army’s The Judge Advocate General’s Legal Center and School, my focus is on a large subset of those lawyers: judge advocates general (JAGs). JAGs are commissioned military officers licensed to practice law and assigned to positions where that knowledge, skill, and expertise is used to counsel commanders and represent the interests of the Department of Defense, ensuring the former comply with applicable laws and regulations when executing missions for the latter.

If these lawyers were kept in the dark during the strike, it would reflect a serious breach of a norm (and established administrative and military doctrinal processes) meant to ensure U.S. military operations are vetted for legality constantly. If they did review the strike and determined it was lawful under domestic and international law, I believe (and a great many others do too) that they were clearly wrong. This leaves open several possibilities: They were not consulted; they were ignored; they succumbed to groupthink despite a duty for independence; or similarly, they were directed to accept a high-level legal conclusion, depriving them of the opportunity to exercise independent legal judgment.

The secretary of defense’s notable contempt for JAGs, his unprecedented relief of the top JAG generals in the Army and Air Force in February, and the current plan to shift 600 JAGs out of their military assignments and into temporary immigration judge robes justifies suspicion that either JAGs in the chain of command were not invited to the planning of this attack or their legal advice—which surely would have pushed back on this plan—was ignored. The worst, but entirely foreseeable, case is that the military would bypass JAGs’ legal advice and follow an unlawful order from the president—hastened by Trump’s executive order declaring his, or the attorney general’s, interpretation of any law is final and dispositive within the executive branch.

As I have written here previously, the sidelining or disregard of military legal advice bodes ill for the perceived and actual legitimacy of U.S. military operations, diminishes trust that the military follows the rule of law over the rule of command, and erodes confidence in the nonpartisanship of the armed forces.

Background

Following the strike, Trump claimed that the ship was a “drug-carrying boat” manned by members of the “narcoterrorist” gang Tren de Aragua (TdA) from Venezuela—a group he designated as a “foreign terrorist organization” earlier this year. It is the same group he has targeted under an aggressive Immigration and Nationality Act campaign using, in one court’s words, a “wartime law,” the Alien Enemies Act. On Sept. 4, Trump notified Congress—consistent with the War Powers Resolution—of his introduction of the armed forces “into hostilities.”

In making the legal case for the strike, Trump claimed that TdA’s “illicit drug trafficking activities” pose a “significant threat to United States persons and interests” and accused other nations in the region of being unable or unwilling to prevent this threat to the United States. In so doing, Trump seemed to be relying on a jus ad bellum self-defense legal argument: Upon suffering an armed attack or a threatened imminent armed attack, the victim nation may resort to force in response and anticipation, provided it is proportional and necessary under the circumstances. 

In this way, the Trump administration has functionally declared war on a transnational criminal organization, and dedicated military resources to combat it, on grounds of self-defense. While this is the same logic the United States employed when it went to war against global terrorist networks and nations involved in the Sept. 11 terrorist attacks, it falls short on several grounds. First, this time there is no domestic authorization for the use of military force (AUMF) or “declaration of war” from Congress—yet. Second, as explained by Michael Schmitt, international law does not recognize illegal drug trafficking as the use of force or armed attack that would permit a nation to resort to military measures in self-defense.

Trump’s letter suggested that additional strikes as part of a larger military campaign were forthcoming—a promise that has since been kept with two additional strikes on Venezuelan vessels. The “nature, scope, and duration” of this campaign are going to be salient factors in determining whether the administration can continue such strikes without Congress’s affirmative say so. This is the standard that determines the point at which military action rises to the level of “war in the constitutional sense,” at least according to the OLC opinion that analyzes the legality of the 2018 air strikes on Syria during Trump’s first term. And the longer Congress stays silent, the stronger Trump’s argument that Congress has tacitly approved of this and future strikes.

The boat strike has left many former JAGs, including me, unnerved and deeply concerned. The domestic and international illegality of the lethal attack has been well documented and analyzed by Mark Nevitt, Scott Anderson, Brian Finucane, and Michael Schmitt, among others. Rather than rehash their arguments, I will focus on the process and players that seem to have been negligently or recklessly cast aside by the administration in favor of, as Secretary of State Marco Rubio put it, sending a message to the nation’s enemies. Geoffrey Corn, another former JAG and current professor, recently expressed similar concerns: “What happened to what is supposed to be ‘principled counsel’ (a term coined by the former Army Judge Advocate General to define the essential function of the military lawyer) at every level of command?”

Process and Players

Under normal conditions—even for a high-profile strike approved personally by the president—there would have been some sort of formal or informal legal review, as described by Todd Huntley (a veteran legal adviser to special operations). If the U.S. is already engaged in an armed conflict, and the proposed target is a member of a declared hostile force like a member of a non-state armed group, the legal analysis is pretty much limited to LOAC: Will the strike comply with the cardinal principles of necessity, proportionality, unnecessary suffering, and distinction and the associated specific articles of the Geneva Conventions, and does it comply with existing rules of engagement in that theater? 

The administration’s initial public response to legal objections was to assert that the attack complied with these laws of war. But by making that argument, the administration revealed the inadequacy of its legal analysis—or lack thereof. Long before evaluating compliance with LOAC, the threshold question is whether LOAC even applies. According to experts, LOAC was not triggered—because we are not in an armed conflict with Tren de Aragua as a non-state armed group, nor with any nation that supports it. And if the U.S. is not already in a declared armed conflict with either another nation or a non-state armed group, and the attack is the beginning of a campaign based on a legal theory of self-defense (as Trump has indicated), the matter gets decidedly more complicated—as evidenced by the number of OLC opinions analyzing the legal issues of independent presidential use of armed force. Merely complying with LOAC in the actual mechanics of the strike is not enough.

The first Trump administration also engaged in a controversial use of force: the strike on Iranian Quds Force commander Gen. Qassem Solemani. There, Trump ordered the killing of a senior military official of Iran, located in Iraq, because he was plotting “imminent and sinister attacks on American diplomats and American personnel, but we caught him in the act and terminated him.” That too was politically and legally controversial, but its legal problems were far more debatable than the clear-cut case of the TdA boat. The strike off the coast of Venezuela was fundamentally different. It occurred in international waters, not the territory of a nation the U.S. had been legally authorized to use military force inside previously; it struck civilian criminals, not senior-ranking members of another nation’s military; and it was premised on stopping the attenuated risk of drug use to the U.S. population, not an imminent armed attack on U.S. diplomatic and military personnel in a combat theater.

Here, the target (presumably the crew, the drugs, and the boat were all considered targetable) was not so much high profile as it was high visibility.  Consider the facts: low-level drug runners (not yet confirmed) in a non-state armed group (itself a dubious characterization); on a single vessel; in international waters; without a congressional declaration of war or AUMF; a strong desire to make a statement; and a target of opportunity crossing the Caribbean. Under such conditions, then, it is reasonable to assume the plan would have been reviewed by lawyers on the National Security Council staff, in the Department of State, and in the Defense Department’s Office of General Counsel at the very least.  Presumably the order went through the secretary of defense to the U.S. Southern Command (SOUTHCOM) commander, so the chairman of the Joint Chief’s legal counsel should have seen it, as well as the staff judge advocate (the senior legal adviser, in charge of all other lawyers in the command) for the SOUTHCOM. 

Civilian and uniformed attorneys—with the relevant experience, skill, and knowledge in both the domestic use of police power and international laws regulating warfare—reside in droves in the National Security Council, the State Department, and of course within the Defense Department. The Office of General Counsel, the office of the chairman of the Joint Chiefs of Staff, and the staffs of each of the service chiefs of staff (led by their respective TJAGs) all have—at least historically—teams of lawyers whose sole focus are these bodies of law and who have a professional responsibility to get the law right, notwithstanding the powerful reach of political influence or preferences coming from elected or appointed officials. This essential role was played so well by lawyers in the Defense Department that the TJAGs and other senior civilian Defense Department lawyers credibly, persuasively, and publicly rejected the Bush administration’s “enhanced interrogation techniques”— torture—in 2006, changing both policy and law.

But lawyers also reside even further down the chain of command. The major operational headquarters—from the joint combatant commands like SOUTHCOM and U.S. Special Operations Command (SOCOM), down to tactical units like Army brigades, Marine expeditionary units, and Navy aircraft carriers—are all staffed by teams of JAGs and civilian attorneys with deep expertise in what the services call “operational law.”

Consider the Army’s doctrine on legal support to operations. It describes the critical role that JAGs play in developing options that meet a commander’s mission intent within the necessary constraints of domestic and international laws. 

Operational law ... includes an understanding of the domestic and international legal basis for operations, the authorities available to each level of command, any weapons or force restrictions, application and interpreting of the standing [rules of engagement] and mission-specific ROE, interoperability with allied forces, information operations, the application of fiscal law to military operations, and the application of various [Department of Defense] or other executive branch policies to military operations. Judge advocates provide operational law support in all military operations. The national security law judge advocate supports the [military decision-making process] by preparing legal estimates, designing the operational legal support architecture, writing legal annexes [to operations orders], assisting in developing and training of ROE, and reviewing plans and orders. The operational law judge advocate supports the conduct of operations by maintaining situational awareness and advising and assisting with lethal and nonlethal targeting, with particular emphasis on [lw of armed conflict] compliance, ROE implementation, and detainee operations. ... To perform these functions, the legal advisor must have a dedicated seat in the operations center.

The Navy, conducting traditional sea combat, “freedom of navigation” missions, or even counter-drug smuggling operations with the Coast Guard, is similarly trained to abide by the laws of war and the international maritime law; Navy and Coast Guard JAGs specializing in operational law not only are the expert advisers to the fleet but also ensure the entire decision-making process, from conception to planning to execution, complies with those laws.

Assigning lawyers to these key positions may sound like “best practice,” and it is. But it is also required by international law: “Each State must make legal advisers available, when necessary, to advise military commanders at the appropriate level on the application of international humanitarian law.” While this rule comes from the First Additional Protocol to the Geneva Conventions, which the U.S. did not ratify, the U.S. military has long adopted this as state practice. 

Federal law prohibits anyone in the Defense Department—from the secretary down to a brigade’s sergeant major—from interfering with a JAG’s provision of independent legal counsel to the chain of command (there is a distinct protective statute for each of the services’ JAGs). Defense Department regulations provide that “qualified legal advisers” will be present to ensure compliance with the law of war, but even more generally those same regulations state emphatically that:

In all other military operations [other than war], members of the [Defense Department] Components will continue to act consistent with the law of war’s fundamental principles and rules, which include those in Common Article 3 of the 1949 Geneva Conventions and the principles of military necessity, humanity, distinction, proportionality, and honor.

There is no doubt that military lawyers—who regularly advise commanders and planners on when military force may be employed and under what constraints—should have been involved in the planning and execution of this particular mission. From the White House to the secretary of defense to the relevant combatant command headquarters, and down to the tactical headquarters directly responsible for this strike, lawyers were not only available to consult; they had an affirmative authority and a professional obligation to provide that counsel even if not asked for it—and even if it pushed back on the “client’s” preferences, when the client proposed a “course of action that [was] likely to result in substantial adverse legal consequences.”

Reasons to Doubt 

A host of questions about the conduct of this attack on the TdA boat remain unanswered. What deliberative process was used? Who participated? What political or legal concerns were raised and debated? Were there objections or dissents noted? When the order was drafted, did it receive a legal review by qualified attorneys? When the order was transmitted down through the operational chain of command, and adapted by each level’s planners and commanders, were their JAGs informed of the relevant facts? Were they even informed of the operation? If they were informed of the operation and the facts, did they have a reasonable opportunity to do their own legal review and offer any concerns or objections to their commanders or back up the chain?

I would prefer to assume that the answer to each of these matters is consistent with federal law, military doctrine, and historical precedent. But when the secretary of defense has publicly denigrated the role and work of JAGs, TJAGs are relieved and forced to retire because they might be “roadblocks” to the administration’s policy agenda, hundreds of JAGs are reassigned to serve as temporary immigration judges and federal prosecutors in D.C., and the president eschews established decision-making protocols, that assumption may not be reasonable. When those TJAGs were relieved in February, Sen. Jack Reed (D-R.I.), the ranking member on the Senate Armed Services Committee, remarked, “If you’re going to break the law, the first thing you do is you get rid of the lawyers.” Mark Nevitt, another retired JAG officer and current law professor, explaining the legal authority underpinning these firings, emphasized how unusual they are and the risk that these TJAGs will be replaced by senior military lawyers who “will be more pliant and less likely to push back against unlawful orders.” 

But even if all the remaining JAGs—from the TJAG down to the newest lieutenants—are highly professional and competent, dedicated to a good-faith and honest performance of their official duties, and temperamentally inclined to push back on unlawful orders, there is still reason for serious concern. In his Feb. 18 executive order, “Ensuring Accountability for All Agencies,” Trump declared that he or the attorney general had the final word on legal interpretation of any law by offices and officers within the executive branch. 

The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.  The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties.  No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General. 

This theory should be universally condemned as a blatant embrace of autocracy and dismissal of the rule of law. If true, there is no legal basis to prevent Trump from ordering, for example, that SEAL Team 6 abduct the teenage daughter of a Mexican drug kingpin in a ploy to force his surrender and extradition to American law enforcement; nor could the senior JAG, advising the Joint Special Operations Commander, counsel disobedience to that order on grounds that it is “unlawful.” All Trump, or Attorney General Pam Bondi, would have to do is say: “This is lawful.”

The executive order’s “rules of conduct guiding federal employees’ interpretation of the law” cannot be reconciled with any lawyer’s higher duty to the Constitution and their codes of professional responsibility as officers of the legal system, the military officer’s oath of office, or the JAG’s herculean combination of both. 

Under normal conditions, it would be fair to presume that both the president and the attorney general will provide authoritative interpretations of the law that are—in fact—within the acceptable professional bounds of interpretation. After all, the president swore an oath to “preserve, protect, and defend the Constitution,” and that includes his Article II duty to “take care that the laws be faithfully executed.” But as courts have held in the context of the Posse Comitatus Act and the Alien Enemies Act, the Trump administration’s legal interpretations of its own executive power in the use of force have been strained, flawed, factually unsupportable, or flatly wrong. The Sept. 2 attack on the TdA boat suffers from the same pathologies. 

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Geoffrey Corn wrote: “If ‘principled counsel’ is steamrolled in this new Department of War, what will constrain the future abuse of military power?” That this attack occurred at all, under the conditions Trump himself admits, should give all Americans reason to be skeptical that the life-and-death decisions and actions taken by the U.S. military will continue to have the basic protections of thorough, unbiased legal analysis by the very officers that commanders have long trusted for that counsel.