Back in the 1990s, Donald Bellisario, a TV producer, was looking for his next great idea. After what I presume was an incredibly boring night of whatever old people did in the early 1990s, he came up with the idea of a show about military lawyers. Paramount bought it, ran it for ten seasons, and it actually wasn’t terrible. Terminally corny, and a lot ridiculous, but not terrible. Better than reality TV, anyways. Truth, justice, ejections from jet fighters, gunfights, and turn-of-the-century Catherine Bell in uniforms. Boomer AF, but not terrible. So why am I bringing this up in a political blog?
Given that most Americans aren’t familiar with the more arcane institutions of our military, I think referencing J.A.G. is probably the easiest way to explain what they do. In the show, in between fighting off airline hijackers and romancing blondes and solving murder plots, Harman Raab Jr. occasionally finds himself giving legal advice regarding the Laws of War, policy, rules of engagement and the Uniform Code of Military Justice to field officers so that they can do their jobs effectively. Contrary to popular belief, not all orders are legal orders, nor can every order be followed. It’s in the oath every service member swears- to follow lawful orders. The onus is on every level of the chain of command to ensure that those orders are legal, from the officers in command of the theatre to the field-grade officers to the individual unit leaders, noncommissioned officers and soldiers themselves. What’s more, those orders need to be conducted in accordance with the laws (of war and the UCMJ), the rules of engagement (as relevant to the situation) and within the ethical constraints of the situation. Bitter experience has shown us what can happen if the perspective of the law is not integral to the generation and execution of military operations, in peace and war. Massacres, killings of civilians, rape and torture and abuse, and ultimately terrible decisions that ruin entire war efforts are the result.
Let’s take a trip back in time to 1890. Hundreds of people, members of the Lakota tribe, were returning to a reservation (where treatment was objectively poor, with hunger, humiliation, cultural destruction and deplorable living conditions the standard) on the threat of further military action against them. They were captured, detained and a search for “prohibited” weapons was initiated by a cavalry unit of the United States Army. Tragically, the situation was mismanaged, and American soldiers killed approximately 250 Native Americans, who had surrendered peacefully to the government. Key aspects of the encounter were more than just a few shots exchanged- they consisted of crew-served weapons firing into tipis full of women and children, cavalrymen running down panicked Lakota trying to escape the massacre by fleeing into the wilderness, and soldiers executing wounded noncombatants. It was reported that officers had “lost control of their men” and justified with claims that the cavalry was threatened with extinction by the sheer number of Native Americans/ It was largely explained as an expected result of a toxic stew of undertrained soldiers, racism, fears of Native American zealotry and poor communications. Even by the standards of the time, Wounded Knee was controversial, but it was rapidly forgotten and the world mostly moved on. Had there been any sort of legal awareness of the situation, it is entirely possible that the massacre would not have occurred, as even by the standards of the time, the Wounded Knee detention was poorly conducted. Still, at the time, the concept of a judge advocate was primarily associated with trials for misconduct. Wounded Knee, and incidents like it, would help steer the military into assigning lawyers to field commands for operational advice a half-century later.
March 16, 1968, My Lai, Republic of South Vietnam: C Co 1/20 IN and B Co 4/3 IN of the Americal Division (Task Force Barker, operationally led descended on the interconnected hamlets of Xom Lang, erroneously marked on American maps as My Lai. Over the course of the day, these American active-duty soldiers would murder at least 347 South Vietnamese civilians, with a reported Vietnamese total of 504 people, on the pretense of a “loss of control and command authority”, fears of ambush, and poor target identification. There were also rapes. The entire incident was a blatant war crime, no different than those conducted by the Japanese or the Nazis in their rampages. The massacre was then covered up, until it splashed into public consciousness in November 1969. The Army and the Nixon administration, now in full damage-control mode, would eventually court-martial 26 officers, with one conviction (William Calley), who was quietly pardoned after a token period of house arrest. This was definitely not the only massacre of the war; and one could argue that the entire American war effort in South Vietnam and Cambodia was largely unfettered throughout most of the war by minor concerns like “laws” and “rules” in that the functional American answer was to destroy the country in order to save it. My Lai, however, was the titular event that defined the American soldier to the Vietnamese and American population as a war criminal. Victory in Vietnam required trust and faith in Americans from the Vietnamese population; Americans who were actively slaughtering Vietnamese civilians, destroying villages and eradicating the Vietnamese way of life were hard to trust. Had there been a JAG officer involved in the Task Force Barker planning cell, perhaps crisis could have been averted.
That is the historical context we need to consider when we think about why military legal representation and consultation is vital. Even in non-combat situations, such as the detention of suspected insurgents, the oversight of military law is vital. The Abu Ghraib scandal helped to supercharge the Iraqi insurgency, and it was directly enabled by a unit that lacked professional standards, was of poor discipline and did not have adequate internal controls over the performance and conduct of its members. Far from being hindered by military law, one could argue that a greater awareness of military law and stricter oversight of legal and operational aspects (particularly in a sensitive mission like detention of suspected insurgents) would have made this catastrophe significantly less likely to occur.
This did more to undermine our Iraq occupation effort than the invasion did.
So, let’s bring it to 2025. The Senate-confirmed Secretary of Defense, Pete Hegseth, relieved the JAGs of the Army, Air Force and Navy. The Navy’s JAG was already in the process of retirement and replacement; the Army and Air Force JAGs were fired. Per Hegseth, the incumbent JAGs (known as TJAGs for reasons unknown to me) were not up to the tasks expected. Now, as the appointed civilian leader of the Department of Defense, Hegseth is legally allowed to make these decisions. They stem from the power of the President as the Commander-in-Chief to manage the personnel assignments of the Armed Forces. However, these officers were not fired for cause. They were fired because of a vague assertion that they were “ill-suited” to provide advice. Don’t take my word for it, watch this Fox News interview with Secretary Hegseth himself. Listen carefully to the words he is saying. Pete Hegseth is looking for lawyers who will “offer sound Constitutional advice” and “they don’t exist to be roadblocks to anything that happens.” This is not the role of a JAG. There is nothing in the Constitution about prohibiting a noncommissioned officer from having a sexual relationship with a subordinate soldier (Abu Ghraib), nor is there anything in the Constitution about when and when not to shoot children (My Lai, Wounded Knee). In fact, the role of a JAG, particularly a senior JAG, especially the chief judge advocate general of a branch of the Armed Forces, is LITERALLY to be a roadblock to “anything that happens”. Their role would not be to defend someone at court martial, to provide advice in planning an operation or even to investigate or prosecute a crime directly. Their primary mission is to lead their department and to provide an overriding interpretation of a controversial order that was referred to them. Given their organization, those orders would be coming from the top down and would likely involve some extremely problematic situations. I repeat, their mission is to function as a road block for illegal orders. Even more chilling, we don’t know if there will be any floor to these reliefs, nor do we know the criteria for what a “capable” JAG is. When officers are being fired for the perceptions of the appointed civilian leadership, there is a massive problem.
If, hypothetically, an American field officer was ordered to open fire on demonstrators protesting the President, it would be the responsibility of the JAG officer (along with everyone else hearing that order) to refuse it. The JAG officer would be obligated to provide sound legal counsel to that notional officer, regardless of partisan preferences or career consequences. They are literally circuit breakers for illegal orders. But in this Hegseth world ?
Would Harm be imprisoned for refusing to shoot down an airliner carrying a Democratic politician? Would Major McKenzie face homelessness if she refused to green-light sniping a troublesome judge? Do Bud and Harriett lose their house if they refuse to green-light using the military to beat protesters?
Pete Hegseth goes on to claim that his changes are being made in service to the promotion of a “warrior ethos” that he feels is absent from the force. I can’t claim that he is wrong; the Biden-era wokeness and atrophy of the military has been profoundly problematic from the perspective of warfighting and changes are absolutely necessary if the force is to be successful in combat in the future. Perhaps relieving these officers is a necessary prerequisite for those changes. However, given the context these changes are happening in, the administration is burning credibility it doesn’t have, and the consequences could be dire. To quote Reddit
“How do I keep faith in the service when it’s obvious if I disagree with the presidential administration I am unwelcome or considered expendable or otherwise replaceable?
Are our oaths to the constitution moot compared to loyalty to the president?”
This is just one response, from one service member, but it cuts to the core of the problem. Regardless of rank or role or identity, if the rule of law cannot be trusted over a politician’s whims, how can one be expected to serve by society? The United States Military has always been a non-partisan force subject to civilian control. If partisanship becomes a prerequisite for service, this can no longer hold true, and the military becomes a political instrument, one where the population is dependent on the individual whims and desires of the people who are “serving” to guarantee their behavior, not any command or force of law or professional ethics. This is what separates professional militaries from armed juntas. It is absolutely not what we want to see here.
But 2025 is young. We shall see.
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