With regards to Rosa Brooks and Steve Gey, Shakespeare’s warning about the essential role lawyers play in thwarting lawless rulers seems particularly apt these days. In late February, somewhat unsurprisingly, Secretary of Defense Pete Hegseth announced that President Donald Trump removed General Charles Q. Brown as the Chairman of the Joint Chiefs of Staff and intended to replace him with Lieutenant General Dan Caine, a retired Air National Guard member. Perhaps more surprisingly—at least in terms of timing—Secretary Hegseth also announced that he was seeking nominations for the Judge Advocates General of the Army, Navy, and Air Force. By seeking nominations for these positions, Secretary Hegseth basically fired the current Judge Advocates General—Army Lieutenant General Joseph Berger and Air Force Lieutenant General Charles Plummer—and made clear that the current acting Navy Judge Advocate General, Navy Rear Admiral Lia Reynolds, would soon be replaced.
Secretary Hegseth’s decision to fire the Judge Advocates General (commonly referred to as “TJAGs”) has been met with much controversy. The Biden administration’s Secretary of the Air Force, Frank Kendall, opined that “[w]e have an administration that is waging a war against the rule of law…. The replacement of the military JAG leadership is one skirmish in that war, but it’s time for the American people, across the political spectrum to recognize what is happening. America has a rogue president and a rogue administration.” Major General (retired) Charles Dunlap, now a professor at Duke Law School and the former Air Force Deputy Judge Advocate described the firings as “unprecedented” and noted that “stripping the armed forces of its senior uniformed legal advisors tasked by law to provide independent legal advice sends all wrong messages through the military legal community, not to mention to commanders and their troops.” Professor Mark Nevitt, a former Navy JAG, echoed these concerns, highlighting that “these firings are extraordinary and destabilize a longstanding norm of separating uniformed military members from politics. It is not an overstatement to characterize these firings as unprecedented and dangerous.”
The Trump administration has been largely quiet in response to these criticisms. Secretary Hegseth offered the administration’s primary public response in an interview with Fox News. In this interview, Secretary Hegseth provided three justifications for these firings: 1) the President has the right to pick his national security and military advisory team; 2) the administration wants lawyers “who give sound constitutional advice and don’t exist to be roadblocks to anything; and 3) a belief that the TJAGs represent a group of insulated officers—chosen by each other—that merely serves to protect a status quo that has not been effective. In many ways, Secretary Hegseth’s actions reflect his commitment to reestablishing what he believes to be a “warrior ethos,” where the law and military lawyers merely stand in opposition.
This post explores the significance of Secretary Hegseth’s firing of the TJAGs. Were these firings truly unprecedented? What consequences may arise from these firings, whether within military legal practice or how the military fights wars and complies with international law? Do they contribute to an ongoing existential threat to democracy and defense? To answer these questions, we begin by first shining a light on the roles and responsibilities of the TJAGs as military lawyers, recognizing that much of their service tends to operate outside of traditional legal and public view.
I. Who and What Is TJAG?
The Departments of the Air Force, Army, and Navy all have their own independent Judge Advocate General Corps (“JAG Corps”). The Marine Corps also has its own JAG Corps, but it remains under the supervision and leadership of the Department of the Navy. The Space Force does not have its own JAG Corps and instead relies upon the Air Force JAG Corps for the provision of legal services.
At the head of each department JAG Corps rests that department’s TJAG. TJAG’s roles and responsibilities are statutory in nature. (10 U.S.C. § 9037 is provided as an example. The Army and Navy have similar provisions that mirror the language regarding the Air Force.) For each department, TJAG: 1) is the uniformed legal advisor for the department’s Secretary and all officers within the department; 2) directs and oversees all members of the department’s JAG Corps; and 3) administers the department’s military justice system. Beyond its statutory responsibilities, TJAG is often perceived “as a conscience of the military and a moral guide as to what’s right and wrong.” Congress affords TJAG—and all judge advocates—the power and protection to be that conscience, explicitly prohibiting any officer or employee of the Department of Defense from interfering with TJAG’s ability to give independent legal advice to the department Secretary or Chief of Staff and from interfering with any judge advocate’s ability to give independent legal advice to commanders.
In turn, Congress fails to provide much guidance on how a TJAG is selected or how a TJAG is removed. To select a TJAG, Congress provides that, subject to Department of Defense regulations, a board of officers selects a judge advocate to recommend to the President. The nominee must meet the limited statutory requirements to serve as TJAG: she must be a licensed attorney in good standing, must be an officer within that department, and must have at least eight years of experience in legal duties as an experienced officer. The President may then forward that nominee to the Senate for approval, or may appoint a different officer for Senate approval, so long as that appointee meets the statutory requirements. As for removal, the only statutory guidance appears to be that TJAG is limited to a four-year term.
TJAG’s statutory role and responsibilities as to rank is surprisingly silent. Rank plays a vital role in military service; with higher rank comes more responsibility, more authority, more access to power, and more independence. Beginning in 2008, via a National Defense Authorization Act, TJAGs across the departments were provided a “third star,” making them either lieutenant generals or vice admirals. However, the 2017 National Defense Authorization Act quietly removed the requirement that TJAG serves as a three-star, allowing the possibility of a TJAG serving in a lower rank.
II. Was the Friday Night Removal of the TJAGs Unprecedented?
Does our review of the statutory roles and responsibilities of the department TJAGs answer the question of whether Secretary Hegseth’s actions were unprecedented? In a way, yes, although not entirely. It is clear from these provisions that the Department of Defense is not supposed to meddle with the rights and responsibilities of the TJAGs to provide independent legal advice. Secretary Hegseth did just that when he removed them under the pretense of the President being able to choose his own military advisors and as an effort to make sure that military lawyers did not pose any “roadblocks” to whatever President Trump has in store. Through these justifications, Secretary Hegseth shifted the role of the TJAGs from that of an independent non-partisan legal voice to that of a member of the President’s national security team, focused on securing the President’s agenda. Although contrary to the statutory authority, is such a reimagining—and its effectuation through the mass firings—unprecedented?
A quick review of recent history confirms these actions are indeed unprecedented. TJAGs have run afoul of presidential administrations in the past. Somewhat recently, the Army and Air Force TJAGs voiced opposition to President George W. Bush’s use of torture at Guantanamo Bay. These TJAGs voiced dissent to Congress, actively disagreed with the Office of Legal Counsel’s legal review justifying the use of torture and voiced legal concerns and oppositions through several memos. Other lower-ranking judge advocates also expressed concerns about the lack of due process in military commissions. The Bush administration did not heed the advice of these judge advocates and instead openly disparaged military attorneys. Nonetheless, the Bush administration did not fire any TJAGs, or any of the JAGs involved, and the military departments were able to secure three stars for all their TJAGs in the years to follow.
Further, no other president has removed TJAGs upon entering office. Generally, TJAGs serve their four-year term and then retire. The only TJAGs who left office before their four-year commitment expired did so when under suspicion for misconduct unrelated to disobeying presidential directives or policies.
III. The Consequences of these Unprecedented Firings
We next turn our attention to what are the consequences of these unprecedented firings. While TJAGs and judge advocates in general have not always succeeded in their role as the “conscience of the military,” Secretary Hegseth’s firing of these TJAGs is likely to have significant consequences in how judge advocates execute their mission within their departments and how we fight future wars.
A. Consequences of Judge Advocates Executing Their Mission
TJAGs and all judge advocates continue to have the statutory responsibility to provide commanders with independent legal advice. Inherent in giving independent legal advice is the responsibility to advise commanders of the potential legal consequences of their actions. At the TJAG level, TJAG may be reluctant to advise a department secretary or department Chief of Staff of the potential unlawfulness of their actions if such advice may result in their removal. For example, suppose the President orders the Army to seize an American territory and declare martial law. TJAG has the statutory responsibility to advise Army commanders that such action is unlawful and that the commander has a legal duty to disobey the unlawful order. But if she does so, she is almost certain to be fired.
This potential chilling effect is likely to extend well below the TJAG level. Judge advocates advise at all levels of command. And TJAGs exercise statutory control and responsibility over all judge advocates within their departments. Such responsibility includes the authority to deploy and reassign subordinate judge advocates. Suppose one of the new TJAGs is a Trump administration loyalist who refuses to establish any roadblocks to the administration’s use of the military. A junior judge advocate may identify a potentially unlawful order that flows down to a junior commander. The junior judge advocate may be up for promotion, may not be eligible for retirement, may be assigned to a location where their spouse may be able to work or where her child may be able to receive special services. This junior judge advocate may fear that if she gives independent legal advice that runs afoul of their TJAG, she could be punished with a new assignment, a deployment, or other adverse career consequences. Of course, the fear of retaliation will not deter all junior judge advocates. Think of Lieutenant Alaric Piette, a Navy JAG Corps defense attorney, who repeatedly objected to irregular military commission proceedings on behalf of his death penalty eligible client. Piette knew such actions were deeply unpopular not only with the presiding Judge Vance Spaeth, but with many in the military as well. Many suspect his superiors failed to promote him as a result—a stiff penalty in an up or out system. Such courage should not be taken as inevitable, particularly in a setting likely to be much more punitive than even the one Piette faced.
These firings may also have a significant impact on how the TJAGs administer their department’s military justice system under the Uniform Code of Military Justice (“UCMJ”). The military justice system serves as the principal tool for commanders to effectuate good order and discipline. Despite recent reforms to the military justice system that remove certain offenses from military commanders and place them outside the judge advocate chain-of-command, the department TJAGs retain the statutory authority to administer their military justice programs.
At the same time, the Court of Appeals for the Armed Forces has found that judge advocates may engage in unlawful command influence. Unlawful command influence is unique to the military justice system and establishes that that no military member may “attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal.” In cases where a military judge finds there to be unlawful command influence, the remedy may be as significant as a dismissal of all charges with prejudice.
The President or the Secretary of Defense exerting such control over the TJAGs lends itself to military defense counsels alleging unlawful command influence against judge advocates at all levels. For instance, President Trump has issued an executive order prohibiting diversity, equity, and inclusion practices across the federal government. Suppose a military member has an LBGTQIA flag on his desk. His commander could potentially order the military member to remove the flag. But what if the commander’s judge advocate advises that such conduct is worthy of a court-martial? Should the military commander follow that legal advice and charge the military member with disobeying President Trump’s order, the military member’s defense attorney can allege that the judge advocate – by nature of TJAG being bound to the executive branch – asserted undue pressure upon the commander to initial court-martial proceedings. By raising this defense in any case where a judge advocate advises the commander, which will likely be all cases, military defense counsels may grind the military justice system to a complete stop.
(For what it is worth, it is not only the Secretary of Defense who might exert such control over TJAGs. For instance, a Navy judge found President Obama’s comments that those convicted of sexual assault should be fired and dishonorably discharged to constitute Unlawful Command Influence. The Court of Appeals for the Armed Forces affirmed the President’s capacity to commit Unlawful Command Influence in U.S. v. Bergdahl, though it did not conclude such Unlawful Command Influence existed in that case.)
B. Consequences on Military Use of Force and International Law Compliance
While neither President Trump nor Secretary of Defense Hegseth provided much detail as to the reasons for the individual TJAG firings, it is at least plausible and probably likely that the administration wants to weaken the military’s commitment to advising on and enforcing rules of engagement. They may want to go further and weaken the commitment to the Geneva Conventions as well. As mentioned above, Hegseth has discussed the TJAG firings as relating to “roadblocks to orders that are given by a commander in chief . . . and we didn’t think those particular positions were well suited, and so we’re looking for the best.” He further disparaged how TJAGs are traditionally chosen as “elected by each other, or chosen by each other . . . small group of insulated officers who perpetuate the status quo.” But what exactly is so problematic about the status quo?
Hegseth has extensively written and testified about his concern with “overly restrictive rules of engagement intended to prevent U.S. troops from killing civilians.” By way of background, rules of engagement are binding directives that articulate when use of armed force is permissible given domestic law, international law like the Geneva Conventions, and relevant political and military policy. Lawful Rules of Engagements (ROEs) may go beyond what domestic and international law require in order to satisfy articulated policy goals such as limiting civilian casualties in order to maintain good relations with the local civilian population or to enhance interoperability or positive perception with its allies. The President can always issue Presidential Policy Guidance that change the baselines for targeting as President Trump did following the Obama administration and as President Biden did following the first Trump administration. Any such guidance, however, must be consistent with domestic and international law in order to be lawful. In other words, different administrations may have different political and military policies so long as those policies do not go below standards set by both domestic and international law.
What are some examples of the kinds of Rules of Engagement to which Hegseth might object? These might include ROEs that set limits on airstrikes in populated areas like those in Afghanistan and required definitive identifications of high-level threats before launching drone strikes outside of active combat zones in places like Pakistan and Yemen. But, of course, as Charlie Dunlap has well explained in more detail elsewhere, rules of engagement are developed by “commanders and civilian leaders, not JAGs.” TJAGs don’t craft rules of engagement, but they do provide advice to commanders on how to apply the ROEs in particular situations. So, for instance, when ROEs in Iraq limited use of force to immediate threats, commanders might have consulted JAGs to determine whether individuals carrying weapons constituted an immediate threat or whether additional factors needed to present. So when Hegseth complains about roadblocks, if one wants to be very generous, you might construe him as wanting JAGs who do not default to the most restrictive interpretation of an ROE and instead allow still reasonable but less restrictive interpretations. One of us has written extensively about the value of enhanced civilian protections for not just civilians themselves, but also for mission accomplishment and avoiding moral injury to troops. We both view loosening ROEs as to allow for more anticipated civilian casualties and creating an atmosphere where JAGs are uncomfortable giving independent legal advice on those ROEs as profoundly unwise, but we acknowledge declining to go beyond what domestic and international law require is fairly within the law.
That said, if one is inclined to be less generous, one might view the combination of changing TJAG and other military leadership as a way to encourage legally questionable guidance that lets commanders be less protective of civilians than is required by ROEs that are themselves likely to be less protective in this administration. Hegseth has recently complained that military lawyers’ legal restrictions put “his or her own priorities in front of the war fighters, their promotions, their medals, in front of having the backs of those making the tough calls on the front lines.” We worry that he is seeking replacements that will be more likely to defer to the wants of those on the front lines rather than the best interpretation of the ROEs. Similarly, we worry that JAGs might be less likely to address violations through vigorous enforcement of the UCMJ. While we may be of different minds as to how well the military criminal justice system addressed laws of war violations in the war on terror up to now, clear and compelling evidence of some desire and willingness to prosecute exists. Whether it was at the optimal level or below, the TJAG firings create an environment where the old status quo level enthusiasm for UCMJ enforcement of Laws of War violations will likely drop precipitously.
If one wants to be even less generous, one might view the shakeup as part of a larger plan to encourage JAGs to sign-off on unlawful orders that violate domestic law and/or the Geneva Conventions and other treaty law such as the Torture Convention. After all, both Trump and Hegseth have suggested we would be better off ignoring the international rules if the other side is not compliant. Prior to assuming his current position, Hegseth had written “What do you do if your enemy does not honor the Geneva Conventions? We never got an answer, Only more war. More casualties, And no victory. If our warriors are forced to follow rules arbitrarily and asked to sacrifice more lives so that international tribunals feel better about themselves, aren’t we just better off winning our wars according to our own rules?! … Who cares what other countries think?” While it is too early to conclude definitively that such a future is inevitable, it provides pause and reason to carefully watch the TJAG replacements and the advice of JAGs more generally.
IV. Do These Firings Contribute to an Existential Risk to Democracy and Defense?
Perhaps. As Professor Rosa Brooks noted, firing lawyers is “what you do when you’re planning to break the law: You get rid of any lawyers who might try to slow you down.” Many have speculated what the plan may be: Imposition of martial law? Using the military to remain in office? Shooting protestors? Fighting wars without legal concerns? Forcing compliance from blue state governors? If the TJAGs acquiesce to these hypothetical plans, then yes, this unprecedented action on the part of Secretary Hegseth contributes to an existential threat.
Short of an existential threat, these firings may instead trigger a still very concerning self-reinforcing morale problem that also presents a real risk to defense and democracy. Along with the removal of top generals and potential massive cuts and layoffs, these firings communicate that a lifetime of honorable service is not valued. Terminating people without significant cause, even if one is legally able to do so, is demoralizing to those forced out, to those who relied on their advice and counsel, and to those who worry they will be next. Anecdotal evidence coming from colleagues inside the service confirms as much. Relatedly, if the TJAG replacements come from those significantly down the ladder, these actions may hit particularly hard. The military is an institution that prioritizes a strong tradition of hierarchy-based promotion norms.
While the importance of morale is difficult to qualify, many in the military, as well as scholars, believe that high morale is a significant contributing factor to battlefield victories and mission accomplishment. This is particularly true in international operations. As General George C. Marshall exhorted during World War II: “It is not enough to fight. It is the spirit that we bring to the fight that decides the issue. It is morale that wins the victory.” General Marshall may have been talking specifically about those on the battlefield, but lawyers play a mission-critical role in combat as well. And declining morale may lead to a serious brain drain. JAGs, especially the most talented ones, may depart for more lucrative and better conditions in private practice. Such departures then further depress morale and, worst case, leave the worst of the worst leading and providing legal services.
But we do not yet know if these worst-case scenarios will be realized. The next step is to pay attention to how the next TJAGs are picked and who they are. Will President Trump convene a group of military officers to provide a recommendation? Or will he consider nominations from anyone and everyone, as promised by Secretary Hegseth? Will the nominee have above and beyond the minimal statutory requirements of eight years of service, continuing the standard practice of the nominee being a general officer? Or will President Trump nominate someone who lacks significant experience and perhaps barely meets the statutory requirements? Will President Trump nominate them as a three-star general officer, or will he lower their rank to reflect their diminished role? Once we have these answers, we will know better the potential dangers ahead.
