Hornets’ Nest: Hegseth Fires the JAGs

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Image: Pete Hegseth.  Credit: Gage Skidmore via Flickr, CC BY-SA 2.0.

Gage Skidmore

An attorney must have the confidence and trust of the client. The military attorneys who got the boot had lost both.

In February, SecDef Hegseth fired the Army’s and Air Force’s top uniformed lawyers (the judge advocates general, or “JAGs” for short).  Two retired Air Force JAG major generals, Charles J. Dunlap and Steven J. Lepper, responded with online outrage.  Both former JAG generals essentially claimed that SecDef Hegseth had overstepped his legal and moral authority and imperiled the nation, the military, and the rule of law.  Their well timed writings stoked the political left’s furor occasioned by President Trump’s firing of Joint Chiefs Chairman Brown and CNO Franchetti. 

Both retired generals’ comments should be rejected because they ignore the most basic qualification for being an attorney, military or otherwise: an attorney must have the confidence and trust of the client.  This qualification applies doubly to senior military officers.

It is clear that the dismissed JAGs did not enjoy the confidence of their new clients and for good reasons.  Their embrace of pernicious, anti-merit DIE initiatives, which violate U.S. law and are inimical to good order, morale, and discipline, marked them as unreliable counselors in the minds of their new clients. 

In the Feb. 22 edition of Lawfire, retired USAF deputy JAG, now Duke law professor Dunlap complained that “military legal officers … are never expected to be replaced on a change of Administration” and that “stripping the armed forces of its senior uniformed legal advisors tasked by [10 U.S.C. §9037] to provide independent advice sends all wrong messages throughout the military legal community, not to mention to commanders.”

On Feb. 23, retired major general Lepper upped the ante, claiming that the firings were driven by “reckless motives that should scare every American” and said POTUS and the SecDef had “remove[d] the only remaining guardrails preventing military personnel from following unlawful orders.”  His observations seemed astonishingly tone-deaf when he wrote, “What no one seems to realize is that [General Brown’s and others’] successors, whoever they may be, will still have to embrace, respect, and encourage diversity or else the military will truly fall apart.” 

The military will fall apart if it doesn’t embrace diversity?

Independent guardians of the law?  Guardrails?

Codswallop.

Recent history suggests that many JAG leaders have been anything but apolitical, independent servants of the law.  Indeed, the objective record demonstrates that the various judges advocate often supported illegal political whim instead of the rule of law.

General officers serve at the pleasure of the commander-in-chief, and there was nothing novel or improper about the president’s or SecDef’s decisions.  Article II, Section 2 of the Constitution grants the president the title of commander-in-chief of the armed services, and thus the inherent authority to command the military and to appoint or remove general officers.

The National Security Act of 1947 empowers the president to appoint the chairman of the Joint Chiefs.  Although the act does not directly address the firing of the chair, it is read to imply the president’s broad authority over the chair and the Joint Chiefs.

Likewise, Title 10 of the U.S. Code outlines the president’s capacity to appoint and remove general officers.

Taken together, the Constitution, the National Security Act of 1947, and Title 10 grant the president the power to fire generals, if deemed necessary for national security, policy reasons, or other grounds.  Five presidents, starting with Lincoln, exercised the same prerogative and publicly fired general officers

Regarding the desired “independence” and “guardrail” JAG integrity, one need only look at major recent missteps by the services JAGs.

In 1999, President Clinton signed Executive Order 13139, which mandated that “Investigational New Drugs” (IND) could not be given to military members without their “informed consent.”  That didn’t stop the DoD from ruining the health and the careers of hundreds, perhaps thousands of military members who either took illegally mandatory anthrax shots and got sick or who didn’t give their “informed consent” and faced prosecution or administrative discharge.

It took a team of pro bono civilian attorneys to stop the madness.  In Doe v. Rumsfeld, 297 F.Supp.2d 119 (DDC 2003), the U.S. District Court for the District of Columbia, citing E.O. 13139, stopped the administration of the IND anthrax vaccine to military personnel.  That injunction remained in place until the FDA administratively ruled that the anthrax vaccine was no longer an IND drug.  But before that, any order forcing a military member to take the shots was an illegal one.

Guardrail judges advocate who prevented illegal orders?

In 2022, the service judges advocate stood silent as then–Air Force chief of staff General Brown published his infamous Directive entitled “Officer Source of Commission Applicant Pool Goals.”  There, General Brown directed the Air Force to “develop a diversity and inclusion” outreach plan to ensure illegal racially defined quotas were enforced, toward the questionable goal of “leveraging … diversity to enhance the Air and Space Force’s ability to deter, and, if necessary, deny our Nation’s competitors.”  (Our “competitors”?)

In addition to its word salad folly, the document violated every precept of the Civil Rights Act of 1964, several DoD directives, and more federal court cases than can be counted.

The imagined guardrails were, in fact, a badly designed off-ramp into the legal abyss.

Ÿ Where were the independent JAGs when, in 2021, then-general Mark Milley reportedly spoke to a Chinese military official behind President Trump’s back and promised our  Chinese “competitor” that he would provide advance warning in the event of a U.S. attack?

ŸWhere were the guardrails when, during the Biden administration, the Navy advocated professional readings that openly promoted Marxist doctrine?  Included on the list: How to Be Antiracist, by prominent leftist scholar Ibram X. Kendi, explicitly argues that “the only remedy to past discrimination is present discrimination” and “capitalism is essentially racist.”

ŸWhere were the independent lawyers when, in June 2022, the Navy forced new recruits to watch training videos on “proper pronoun usage,” which declared, “Using someone’s pronouns is a simple way to affirm someone’s identity”?

ŸSame question when national security spokesman John Kirby declared that abortion is a “sacred obligation” of the U.S. military, implying that abortion access is vital to military readiness.  Did a JAG attempt to intervene when Mr. Kirby pronounced that “diversity, inclusion, and equity … is a foundational sacred obligation of military leaders?”

ŸDid any Air Force judge advocate raise an eyebrow when, in 2022, the Air Force Academy encouraged cadets to stop calling their parents “Mom” and “Dad” in the interest of inclusivity?  Or when, in 2023, when the Air Force permitted Air and Space Force commanders to use unit funds to plan and conduct or pay for members to travel to and participate in “pride” events?

Regardless of one’s personal feeling about LGBT issues, paying for service members to attend pride parades is inherently political, perhaps violative of the Hatch Act, and in no way contributory to military readiness.  Did even one JAG even think about that?

I endorse General Dunlap’s insistence that Congress vigorously demand a full explanation and use its constitutional authority ”to do whatever it takes to ensure that America’s defense establishment will have unfettered access to independent legal judgment.”  But I caution the general to be careful about what he asks for, because we all might be forced to confront or explain what is uncovered.

Bruce Tucker Smith is a retired Air Force judge advocate with 21 years’ active duty, Air Guard, and Reserve service.  He also served for 11 years as an administrative law judge with the Department of Homeland Security.  He is a graduate of the USAF Air War College and was awarded an LL.M. in International Operational Law from The Judge Advocate General School — Army, Charlottesville, Va.

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Image: Pete Hegseth.  Credit: Gage Skidmore via Flickr, CC BY-SA 2.0.