After JAG firings, a difficult truth about military legal independence – Breaking Defense

The
recent
decision
by
the
secretary
of
defense
to

fire
all
three
service
Judge
Advocates
General
(JAGs)
sent
shockwaves
through
the
military
legal
community.
Being
a
military
lawyer
myself,
this
decision
went
beyond
a
mere
headline:
It
was
deeply
personal,
as
one
of
the
JAGs
who
was
dismissed
was
my
boss.

Like
many
in
the
JAG
Corps,
my
initial
reaction
was
frustration.
The
prevailing
wisdom
holds
that
JAGs
are
neutral
arbiters
of
the
law,
advising
commanders
without
political
influence.
Their
role
is
ensuring
legal
soundness
of
policies,
not
shaping
them
based
on
partisan
considerations.
The
idea
that
they
were
removed
for
being
“roadblocks”
to
policy
seemed
like
an
attack
on
that
very
principle.

But
as
I
sat
with
this,
I
realized
that
history
tells
a
more
complicated
story.
This
event,
as
shocking
as
it
is,
may
not
be
an
aberration.
Instead,
it
reveals
a
truth
about
military
legal
advice,
a
truth
I
was
reluctant
to
acknowledge
but
now
feel
compelled
to
explore.

A
Pattern
We’ve
Seen
Before

For
those
of
us
who
have
spent
our
careers
in
the

JAG
Corps,
there
is
a
comforting
belief
that
our
role
is
fundamentally
different
from
that
of
civilian
political
appointees.
We
do
not
serve
at
the
pleasure
of
the
president
like
the
attorney
general,
and
our
function
is
often
described
as
purely
legal,
not
political.

But
if
that
were
entirely
true,
why
has
history
repeatedly
placed
military
lawyers
at
the
center
of
political
battles?

Take,
for
example,
the
John
Yoo
torture
memos
from
the
early
2000s.
Yoo,
a
lawyer
in
the

Department
of
Justice’s
Office
of
Legal
Counsel
(OLC),
authored
memos
that
provided
legal
justification
for
enhanced
interrogation
techniques,
a
policy
deeply
intertwined
with
the
Bush
administration’s
political
objectives.

When
Congress
sought
clarity
on
these
policies,
they
did
not
call
military
commanders
to
testify.
They
called
upon
the
expertise
of
lawyers
from
both
the
civilian
and
military
sectors.

Yoo
and
other
administration-aligned
lawyers
provided
testimony
to
Congress
defending
the
policy
decisions
as
legally
justified.
JAG
officers,
including
the
Judge
Advocates
General
at
the
time,
testified
as
well,
voicing
legal
concerns
about
interrogation
policies.
The
military
testimony
stood
in
stark
contrast
to
the
administration’s
position,
and
it
contributed
to
the
eventual
rollback
of
some
policies.

This
historical
example
illustrates
a
difficult
reality:
Legal
advice
in
government
is
never
purely
neutral.
It
is
always
part
of
the
policy
process.

JAGs,
whether
we
want
to
admit
it
or
not,
play
a
role
in
shaping
and
legitimizing
military
policies.
Our
legal
opinions
do
not
just
exist
in
a
vacuum;
they
influence
what
the
Department
of
Defense
is
able
to
do,
and
as
a
result,
they
inherently
intersect
with
politics.

Why
the
JAG
Selection
Process
Invites
This
Problem

Unlike
the
attorney
general,
who
is
publicly
nominated,
confirmed
by
the
Senate,
and
explicitly
recognized
as
a
political
appointee,
the
selection
of
the
Judge
Advocates
General
is
a
closed
process
that
takes
place
within
the
JAG
Corps
itself.

This
insularity
has
long
been
seen
as
a
safeguard
against
political
pressure,
ensuring
that
military
legal
advice
remains
independent.
But
it
also
means
that
when
legal
interpretations
do
not
align
with
an
administration’s
policy
goals,
there
is
no
mechanism
for
resolving
that
conflict
—
except
for
the
kind
of
sweeping
firings
we
just
witnessed.

The
secretary’s
decision,
whether
intentional
or
not,
highlights
an
uncomfortable
pair
of
questions:

If
JAGs
function
in
a
manner
similar
to
civilian
legal
advisors
who
help
implement
executive
policy,
should
their
selection
process
be
more
transparent?
And
if
we
acknowledge
that
military
legal
advice
plays
a
role
in
legitimizing
or
obstructing
policy,
can
we
still
assume
that
JAG
selection
should
be
insulated
from
the
administration?

None
of
this
is
to
say
that
the
secretary’s
decision
was
the
right
approach.
Blanket
firings
based
on
perceived
policy
misalignment,
rather
than
demonstrated
misconduct
or
incompetence,
create
serious
risks.

First,
such
a
move
weakens
confidence
in
military
legal
integrity.
If
JAGs
can
be
dismissed
purely
because
they
provide
legal
interpretations
that
do
not
align
with
policy
objectives,
future
legal
advisors
may
feel
pressured
to
offer
guidance
that
is
politically
expedient
rather
than
legally
sound.

It
could
also
politicize
military
legal
advice
even
further.
If
the
standard
for
removal
becomes
disagreement
with
an
administration’s
preferred
policy
direction,
future
JAG
appointments
may
shift
toward
those
who
are
perceived
as
more
politically
agreeable
rather
than
legally
rigorous.

And
finally,
it
sets
a
precedent
for
instability.
The
role
of
JAGs
should
not
be
about
political
loyalty.
While
legal
interpretation
is
an
inherently
political
process,
there
must
be
room
for
good
faith
legal
disagreement
without
fear
of
dismissal.

Where
Do
We
Go
From
Here?

This
moment
calls
for
a
serious
discussion
about
the
role
of
JAGs
in
military
policy
and
whether
the
selection
process
should
be
reformed
to
better
balance
legal
independence
with
accountability.
In
summation,
the
three
key
questions
to
consider
are:

• Should
  JAGs
  be
  subject
  to
  a
  confirmation
  process,
  similar
  to
  civilian
  attorneys
  in
  government?
• Should
  there
  be
  clearer
  protections
  for
  legal
  officers
  to
  ensure
  that
  they
  are
  not
  dismissed
  solely
  for
  providing
  inconvenient
  legal
  opinions?
• Should
  we
  reconsider
  the
  way
  legal
  advice
  is
  integrated
  into
  DoD
  policymaking
  to
  reduce
  the
  perception
  that
  JAGs
  are
  policy
  gatekeepers
  rather
  than
  advisors?

These
are
not
easy
questions,
and
there
are
no
simple
answers.
But
ignoring
them
will
not
make
the
problem
go
away.
The
secretary’s
decision
may
have
been
controversial,
but
it
has
forced
us
to
confront
a
reality
we
can
no
longer
dismiss:
Military
legal
advice
is
not
separate
from
politics,
and
our
system
does
not
fully
account
for
that
truth.

One
potential
solution,
which
would
require
Congress
to
get
involved,
would
be
to
adjust
the
timeline
of
the
JAG
selection
process
to
align
with
a
new
presidential
administration.
A
selection
process
that
begins
after
election
confirmation
and
ends
sometime
within
the
first
100
days
of
the
new
presidential
term
would
provide
two
layers
of
protection:
If
the
process
were
to
remain
untouched
by
political
influence,
the
timing
would
make
it
appear
it
was
underwritten
by
the
administration
protecting
the
JAG
Corps,
and
on
the
other
hand,
if
political
influence
is
inserted
into
the
process
there
is
time
to
adjust
and
make
it
an
acceptable
selection
within
the
normal
administration
confirmation
time.

As
a
military
lawyer,
I
want
to
believe
that
our
role
remains
one
of
principled
legal
guidance,
unaffected
by
political
shifts.
But
history
suggests
otherwise.
If
we
do
not
grapple
with
this
challenge
now,
we
risk
future
administrations
making
similar
moves,
potentially
with
even
more
direct
political
motivations.

The
JAG
Corps
must
decide
whether
to
engage
in
this
debate
proactively
or
risk
being
reshaped
by
it.

MAJ
Trent
Kubasiak is
a
judge
advocate
with
Eighth
Army
in
the
Republic
of
Korea.
Previously,
he
was
chief
of
military
justice,
10th
Mountain
Division
and
Fort
Drum.
He
deployed
three
times
to
Afghanistan
and
once
to
Kuwait.
He
has
a
JD
from
Marquette
University
School
of
Law,
Wisconsin;
an
LLM
from
the
Judge
Advocate
General’s
Legal
Center
and
School,
Virginia;
and
an
MBA
from
Capella
University.

The
views
expressed
in
this
article
are
his
own
and
do
not
represent
the
official
position
of
the
Department
of
Defense