JAGs Alone Can’t Defend Rule of Law
JAGs Alone Can’t Defend Rule of Law by Dan Maurer is published by Lawfare.
Here’s how LTC Dan Maurer starts off his piece:
“In February, Secretary of Defense Pete Hegseth fired the chairman of the Joint Chiefs of Staff, the chief of naval operations, the vice chief of staff of the Air Force, and the three service judge advocates general (TJAGs). Most criticism of this unprecedented purge has focused on what it signals for the leadership of the military and the routine provision of legal advice to the senior civilian appointees within the Pentagon. Civil-military relations scholar and author Eliot Cohen, for example, wrote that the “[T]JAGs embody the deep respect that the United States military has had for the rule of law. Although they merely advise and do not command, their role is a crucial one.”
However, as Steve Vladeck hinted, the loss of the TJAGs portends a crisis much further down the chain of command. TJAGs do not provide the only line of defense against unwitting or deliberate illegality within the Department of Defense. That defense should also come from the thousands of lower-ranking judge advocate officers (JAGs) who TJAGs lead, serving in the Army, Navy, Marines, Air Force, Space Force, and Coast Guard—both active and reserve components. Many of those officers are responsible for advising commanders on a range of issues, including fiscal and personnel law, military justice, environmental litigation, international law, and rules of engagement.
Some observers have suggested (going back to the first Trump administration) that these lawyers will act as a necessary dam in the face of patently unlawful orders or slow an aggressive and possibly illegal use of armed force against novel threats, like transnational narcotics cartels allegedly supporting illegal immigration. This is overly optimistic. Most orders are not so clearly unlawful or unconstitutional, and military law requires that orders, including those of questionable legitimacy, are “presumed lawful.” As a recently retired JAG officer, I argue that there are institutional impediments to JAGs serving as diligent checks on legally questionable orders or policies to the same degree that civilian lawyers usually do, across other executive branch departments, and in orthodox presidential administrations.”
The piece is laid out as follows:
- The Friday Night Blitz
- JAGs Are Not Bulwarks
- The Secretary’s Animus Toward “Jagoffs” Doesn’t Bode Well
- What Can be Done?
