JAGs Alone Can’t Defend Rule of Law

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 Friday Night Blitz 

As mentioned previously, on Feb. 21—in what may someday be called the “Friday Night Blitz” in Defense Department lore—Defense Secretary Hegseth relieved six senior military officers of their leadership roles in the Pentagon. Most notably (but not necessarily surprisingly), Hegseth fired Air Force Gen. C.Q. Brown from his position as the nation’s senior ranking officer and principal military adviser to the president, secretary, and National Security Council. He also fired Adm. Lisa Franchetti, the first woman to serve as the Navy’s senior officer—chief of naval operations—and the Air Force’s vice chief of staff, Gen. James Slife. Retired Rear Adm. Mark Montgomery characterized firing these “proven war-fighter[s]” as a “loss to the military.” 

But equally worrisome—especially for those concerned about the new secretary’s public disdain for legal constraints on warfighters—was Hegseth’s stunning decision to fire the senior uniformed lawyers, TJAGs, of the Army, Navy, and Air Force simultaneously: Army Lt. Gen. Joseph Berger had been the Army’s TJAG since last summer; Air Force Lt. Gen. Charles Plummer had been the Air Force’s senior uniformed attorney since 2022; and Rear Adm. Lia Reynolds had been serving as the Navy’s acting TJAG since only Jan. 1 of this year.

There is no historical precedent for relieving the services’ three senior uniformed lawyers at once. With little justification offered, experts and the public are left to speculate that the dismissals had nothing to do with the JAGs’ legal acumen or leadership. Rather, they were likely related to the JAGs’ actual or presumed disapproval of Trump’s and Hegseth’s agenda to use military force at the southern border and the administration’s campaign to return the Defense Department to its supposed glory days of management by “strong, normal men”—or white, male, heterosexual “warriors.”

In Trump’s understanding of civil-military relations (and, by extension, Hegseth’s management principles), it is well documented that any sign of disloyalty to him is interpreted as a devastating weakness of character and martial incompetence. Trump once opined that he wished “his” generals were more like those that displayed loyalty to Hitler. Hegseth’s subsequent defense of the firings has all but confirmed this approach. A day after the dismissals, Hegseth was interviewed by Fox News and responded directly to the criticism of the dismissal of the TJAGs, saying, “We want lawyers who give sound constitutional advice and don’t exist to attempt to be roadblocks to anything.”

It is doubtful that these esteemed officers—each of whom had been vetted by their services, had served with distinction in and out of combat for decades, had been bound by codes of professional responsibility as lawyers, and had been nominated by a president and confirmed by the Senate—suddenly began misinterpreting the Constitution. It is far more likely that the administration viewed that very experience and knowledge as the material from which undesirable legal roadblocks would be erected.

The immediate danger created by such a shortsighted personnel decision should be understood in the context of the president’s military ambitions, which can be found in his Inauguration Day executive orders declaring a national emergency at the southern border, directing the secretaries of defense and homeland security to report on whether conditions warrant invoking the Insurrection Act for the first time since 1992, and directing a combatant command to begin planning for the potential use of the military beyond law enforcement support against the “invasion” of illegal immigrants and transnational drug cartels originating in Mexico.

President Trump is well known for his loose understanding of legal constraints on the use of armed force against civilians protesting in American cities and against undocumented immigrants crossing the border, and Hegseth has publicly disparaged military lawyers and questioned the relevance of modern law of war restraints. In reading the writing on the wall even before the election, some concerned observers predicted that the judge advocates would have prophylactic value in arresting the worst impulses and potentially legally questionable directives coming down the chain of command. As M.L. Cavanaugh wrote in December, “Our generals and JAGs ... must lead the institution through the ethical minefields ahead.” That hope, while salutary, is misplaced for reasons I explain below.

Much has been said already about the Friday Night Blitz. Sen. Jack Reed, 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.” A former deputy judge advocate general of the Air Force, Maj. Gen. (retired) Charlie Dunlap, described the chilling effect that these dismissals may have on the provision of apolitical, nonpartisan legal advice to the senior levels of Pentagon decision-makers. Mark Nevitt, another retired JAG officer and current law professor, explained the legal authority underpinning these firings, highlighted how unusual they are, and underscored 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.” Georgetown Law professor Rosa Brooks, commenting on X, wrote, “It’s what you do when you’re planning to break the law: you get rid of any lawyers who might try to slow you down.” 

As a recently retired judge advocate lieutenant colonel, I concur unreservedly that relieving the TJAGs for their presumed failure to toe the administration’s line will have a chilling effect. But this chill is not confined to top leadership; it can spread to the thousands of junior judge advocate officers advising at tactical levels of command at installations and units around the world, already wary that their legal counsel may be viewed as impediments to swift and efficient mission accomplishment, even under the best of circumstances. It may be very difficult for judge advocates—especially the junior officers relatively new to military service—to square the naked partisanship now implicitly expected by their senior professional mentors with the required ethical commitment to be “an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”

If the organizational culture shifts—at downtrace units and organizations outside the Beltway—to one that rewards unquestioned compliance with policy, and punishes the potential for independent criticism, even the routine identification of legal risks during operational planning (the “issue spotting” that so many young JAGs are trained to do for their commanders) may be frozen out. This bodes poorly for the units that may find themselves deployed to the streets of middle America, engaged in missions for which they are traditionally ill suited and ill equipped, like enforcing immigration law, as Elizabth Goitein of the Brennan Center for Justice has noted. 

I also concur that the firings reflect a pathology in the civil-military relationship at the top of the Pentagon, and between the Pentagon and the White House. This unhealthy dynamic will pose significant risks for how the military as an institution will react to, or enact, orders whose legality may be questionable. It dramatically undermines the expectation of a politically neutral, nonpartisan, military—an ethic the Department of Defense has long enforced. 

But I offer another reason to be concerned: that no 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. Of the concerns raised by the secretary’s actions, the least well appreciated by the public is that there are structural obstacles—occupational duty “roadblocks” if you will—that bar most military lawyers from counseling most service members and commanders who believe they have received unlawful orders. Like the other concerns triggered by relieving the TJAGs, these tactical-level duty, position-based obstacles could work to the advantage of the administration looking to advance an aggressive interpretation of legal authority for the use of armed force in the U.S. or abroad.

JAGs Are Not Bulwarks

The concern I raise has less to do with Hegseth’s firing of TJAGs, his personal distrust of uniformed lawyers, or his dislike for restrictive rules of engagement and more to do with the structural way in which legal service is provided to commanders and to individual service members. It is imperative to understand that the administrative architecture of JAG legal support makes it exceedingly difficult to counsel a commander or service member who believes he or she has received an unlawful order. Consider the following two scenarios:

(1) The two-star division commander of the 82nd Airborne Division is contemplating a plan proposed by her staff that involves ordering her subordinate units to engage in activity other than the routine missions for which they are equipped and trained, outside Fort Bragg in the city of Fayetteville, North Carolina; for example, assisting with the construction of a public park using appropriated funds, at the request of the city’s mayor. This concept is not based on an order from her commander, the commanding general of XVIII Airborne Corps and Fort Bragg. The 82nd Airborne Division commander will turn to her staff judge advocate (SJA), a colonel, for an opinion (formal or informal) about the legality of such an action. The SJA will turn to the junior JAGs he supervises, those whose portfolio includes “operational law” (a bit of a catch-all category but one that definitely excludes criminal law, contract law, administrative law, and family law). Those JAGs will execute a legal review of every order before it is published and disseminated, ensuring that it complies with federal fiscal law constraints and Defense Department regulations governing the use of military resources in civilian communities. The review shouldn’t take long, as those same JAGs are fully integrated into the commander’s staff, who developed the order in the first place. But this routine is categorically different from the next scenario.

(2) The 82nd Airborne Division commander has received an order to conduct armed “joint policing patrols with local law enforcement agencies” from her higher headquarters, the XVIII Airborne Corps, which received an order from its higher headquarters, U.S. Forces Command, which received an order from the Joint Staff and secretary of defense.  Even though military law clearly establishes that orders are to be “presumed lawful” by the recipient (and a person has an affirmative defense to disobeying orders only when they are “patently unlawful”), the division commander is at least initially concerned about its legality and wants to either push back or—if necessary—disobey the order if she concludes it’s illegal. Under this circumstance, she will turn to her SJA to determine if there are legal issues with the order (for example, under the Posse Comitatus Act) and ask the SJA to consult their superior.

The latter request will result in her SJA contacting the SJA assigned to the corps headquarters staff (advising the three-star corps commanding general), who then may go up to the SJA for the four-star Army Forces Command, who may go up to the legal counsel to the chairman of the Joint Chiefs of Staff or the Defense Department’s Office of General Counsel. That conversation sequence—outside the chain of command—will be aimed at trying to resolve any ambiguities in the order that might raise legal questions and/or ultimately asking the legal adviser to the principal decision-maker (the originator of the order) whether he or she reviewed the order. If the answer is yes, and there is a general consensus among SJAs about the order’s lawfulness (regardless of whether it is a “good” idea), the SJA at the 82nd Airborne Division will then attempt to resolve any lingering concerns that the division commander has about it, allaying fears that it is an unlawful order.  However, if the legal counsel to the order-giver did not review it before it was transmitted down the chain and/or is convinced by fellow JAGs that it is problematic, then that legal adviser will counsel the order-giver accordingly to rescind or modify it. 

The key difference between these two scenarios is the orders’ origination. In the first scenario, a senior operational commander is thinking about issuing an order (under normal, non extremis conditions) that she is not certain is lawful. In the second scenario, by contrast, a senior operational commander questions the legality of an order received under extremis conditions that she is not certain is lawful and might—if pressed—disobey if she determines it is. In scenario one, the immediately supporting SJA is certainly involved.  In scenario two, the SJA should not be involved in the same way because it implies advising the commander during her consideration about whether to break the law—that is, not to follow the order, exposing the commander to criminal charges under the Uniform Code of Military Justice (UCMJ). 

For two reasons, the latter is deeply problematic. First, under those conditions, that conversation is tantamount to an attorney-client relationship, which is a relationship that does not exist between any SJA and the commander. This lack of attorney-client relationship is clearly conveyed in military regulations governing the ethical duties of military lawyers; the SJA—as for all of his subordinate attorneys—owes professional duties of loyalty, candor, competence, and confidentiality to the Department of Defense, not to an individual commander.

Second, even if that conversation isn’t tantamount to a confidential conversation with a client, it raises the prospect that the SJA might be aiding and abetting the violation of an order, a crime under Article 77 of the UCMJ. Regardless of whether, in a real-world scenario, the SJA would ignore these risks and likely still counsel that commander, professional ethics and regulatory demands prevent the SJA from giving advice directly to that commander post-order receipt under these abnormal conditions. The conversation chain between the lawyers up through the echelons is the sole method by which the order’s questionable legality is discussed and, if necessary, amended before being republished. 

The takeaway: The essential—if not only—point in space and time when a senior JAG leader (the SJA; possibly the service TJAG) can permissibly counsel against an unlawful or unconstitutional order is with the originator of the order itself—the issuer—not with the downstream recipients of the order (in this case, the commander). 

But disobeying an order is a criminal offense, so one might believe that the commander can and should consult a uniformed defense counsel and that this intervention could be a sufficient check. That option is also foreclosed. “Trial defense counsel” (the only military lawyers authorized by regulation and statute to provide privileged criminal defense representation for the violation of purely military crimes like disobeying an order) cannot be consulted by that senior commander. The JAGs doing criminal defense work—in any of the services—are specifically assigned to those roles by the JAG Corps’ leadership for specified periods (in the Army, usually two to three years), and fall under separate siloed organizations beyond the authority of the SJA and the unit chain-of-command, a relationship designed to ensure independence and zealous advocacy. By regulation, they are not permitted to provide counsel (and thereby start an attorney-client relationship) to any service member until some adverse action has been formally and officially initiated against the service member, commander or not.  This would include the nonjudicial punishment process under Article 15 of the UCMJ initiated against the commander, detainment by military law enforcement, being charged under the UCMJ, or notification that an official administrative investigation has been launched against her. Until a commanding officer does something that the higher headquarters deems problematic or unlawful, those commanders have no way to access uniformed criminal defense attorneys. 

Moreover, nearly every military installation has, within its Office of the Staff Judge Advocate, a team of “legal assistance” or “client service”-focused JAGs. But those JAGs cannot provide counsel to the commander under the problematic scenario two either because, despite forming confidential attorney-client relationships with service members or their family members, the legal matters those JAGs are permitted to handle are, by regulation, limited to family law, estate planning, administrative personnel matters, some tort claims, and minor commercial disputes and are almost universally staffed by junior JAG officers still learning to be effective military lawyers. They have neither the experience in military justice (or operational law) nor the professional authority to even engage in consultations implicating a commander’s prospective disobedience of an order.

But what about the hundreds of more junior JAG officers directly assigned to tactical headquarters engaged with the other staff primaries (e.g., logistics, intelligence, communications, operations, personnel, budget) in developing options for commanders, reviewing the legality of orders, and training units on lawful use of force? Not only are they like the SJAs—not positioned to provide advice about whether a received order should be disobeyed—but Hegseth’s mendacity and misunderstanding of uniformed legal advisers throughout the chain of command poses a considerable risk that these officers will be categorically silenced, regardless of whether the commanders benefiting from that legal advice advocate for them. 

The Secretary’s Animus Toward “Jagoffs” Doesn’t Bode Well

Hegseth’s condescendingly obscene remark about military lawyers during his confirmation hearing is already infamous and deserves little retort. But his lack of mature appreciation for the role of judge advocates is likely due to his dearth of experience actually relying on their advice in combat or even observing the vital role that these lawyers play during the operational planning process at headquarters—well above the platoon and company levels with which he is most familiar. JAGs not only help draft the rules of engagement (part of an order ultimately approved by the commander to ensure that these tactical constraints remain compliant with the law of armed conflict), but these officers are the staff’s in-house experts on fiscal law, administrative law, constitutional rights, good order and discipline (including but not limited to the use of the court-martial process), and international law such as treaties and bilateral executive agreements. By the Defense Department’s own doctrine—for “targeting” operations, for compliance with the laws of war, and multidisciplinary expertise and duties on staff—military lawyers have been, and remain, critical force multipliers and staff experts. Joint Special Operations Command (JSOC) relied on such expert legal advice from the JAG assigned to that headquarters in overseeing Operation Neptune Spear, the operation that found and killed Osama bin Laden. In fact, that officer was then-Lt. Col. Joseph Berger—who, until Feb. 21, was the Army’s TJAG.

But therein lies a problem: Current law does not mandate the presence of these lawyers at tactical and operational headquarters. In fact, JAGs’ work at the tactical level in combat is a relatively modern innovation, growing out of investigations into the root causes of the 1968 My Lai war crimes and later organizational reforms in the 1980s. Whether Congress could even legislate a requirement that JAG officers be attached to these units without raising a separation of powers problem is a question that would need a law review article to explore, but suffice it to say here that a determined defense secretary could—by a simple administrative directive— remove judge advocates from billets at operational headquarters and thereby remove what he perceives to be a chief obstacle to commanders being, as Greg Jaffe reported, “more aggressive on the battlefield and potentially less hindered by the laws of armed conflict.”

In a nightmare scenario, Army units could be deployed to the southern border to combat an “invasion,” blending immigration law enforcement among American residential communities and counterterrorist operations against narcotics cartels operating from inside Mexico—without JAGs to advise commanders. Those commanders, who are often entrusted with significant discretion and freedom from the Pentagon, will have to plan and conduct operations that implicate the nuances of international law and the complex interplay between national security authorities (over the use of force, intelligence and surveillance, interrogation, and detention), while considering the constitutional rights of those inside American territory. 

What Can be Done? 

My emphasis on realism should not be confused with fatalism, or in any way be considered a criticism of the legal ability, good faith, and officer professionalism of my former JAG colleagues. Nor should this commentary be construed as speaking on their behalf because, under the UCMJ, their freedom to publicly criticize controversial actions by political officials is most certainly restrained (see the Army Public Affairs Program; UCMJ Articles 88, 133, and 134; and this seminal 1974 Supreme Court opinion). It is too soon to tell whether the “fresh blood” that Hegseth wants at the top of the service JAG Corps will continue to provide the thoughtful, independent counsel that their professional ethics and the law (see, for example, 10 U.S.C. § 7037(e)(1)) requires if and when the administration attempts a legally questionable use of the military here or abroad. But JAGs much further down the chain of command outside the Pentagon, faced with the potential marginalization or erasure of their expertise, can and should conscientiously and professionally resist that push. They have several grounds on which to stand firm:

• 10 U.S.C. § 7037(e)(2) is Congress’s assertion that judge advocate officers’ independence, expertise, judgment, and advice matter to the effective execution of all lawful military operations (each service has an identical statutory protection).
• The Department of Defense has not rescinded the Law of War Manual, or canceled the Law of War Program, both of which clearly highlight that military operations must always be in accordance with the rule of law—both domestic and international.
• Nor has the department removed JAGs from joint doctrine manuals that emphasize the critical support role they play in planning operations, advising on strikes, representing service members’ interests, litigating in court, interpreting statutory and constitutional requirements, and providing ethics advice to leaders.
• As commissioned officers, JAGs take an oath to support and defend the Constitution, but they also swear an oath when they become licensed attorneys in their states and are obliged to serve according to their bar’s rules of professional conduct and their service’s rules of professional conduct for lawyers.
• As commissioned officers with inherent authority, and as advisers to commanders, JAGs are bound to embody (and help commanders embody) this statutory “Requirement for Exemplary Conduct,” Congress’s expectation and reminder about their moral compass.
• Speaking of compasses—a previous Army TJAG repeatedly urged those lawyers under his charge to remember four cardinal “constants” in their practice, unique to their professional roles above simply being commissioned officers: principled counsel, mastery of the law, servant leadership, and stewardship of the profession. “Principled counsel” includes expectations that “appropriate candor and moral courage” can and will influence decisions (it has since been removed inexplicably from the Army JAG Corps’ public website but is still found in the Army doctrine on legal operations).

What can Congress do? Besides diligently performing its oversight functions and generally being more discerning before confirming an underqualified nominee to the Department of Defense, Congress can use its “make rules” power under Article I, Section 8, Clause 14 of the Constitution to amend the UCMJ. Specifically, because the code retains jurisdiction over conduct that might violate the laws of war (see UCMJ Article 18), Congress can legislatively incorporate the Defense Department’s Law of War Manual by reference as binding interpretation of the international law of war within the department (just as Congress did in 2016, limiting U.S. government interrogation methods to those in the Army field manual on interrogations) and require that tactical units in the Armed Forces always have the service of attached JAGs able to render independent advice and assist in planning operations. This is no different from the statutory requirement that courts-martial prosecutions are litigated and presided over by qualified judge advocates.

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To be sure, nothing can undo the damage of summarily relieving the three TJAGs left on the Department of Defense and the service JAG Corps. Like earlier leadership “massacres” (Thursday or Saturday), this too will be fodder for public debate and academic study, and will have negative downstream effects for those remaining—who are still expected to uphold the principles of the “dual profession” of arms and law. To the extent that Hegseth’s relief of the TJAGs makes that harder, and existing occupational duties limit the provision of key advice to commanders unnerved by legally questionable orders, there is cause for alarm.