| Last week, Judge Charles Breyer of the U.S. District Court, Northern District of California, found that President Donald Trump’s use of the California National Guard in Los Angeles violated the Posse Comitatus Act. Judge Breyer enjoined the Trump administration from any further deployment or use of the California National Guard in ways that would similarly violate the Posse Comitatus Act. Specifically, he enjoined Guard members from “engaging in arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, or acting as informants….” Ultimately, Judge Breyer’s decision halts the California National Guard, while in federal service, from enforcing civil law. | | While Judge Breyer’s decision only applies to the Northern District of California, in theory, this decision ought to chill the Trump administration’s continued use and flirtation with using military forces to enforce civilian law. This Administration, however, appears undeterred. Only hours after Judge Breyer’s decision, President Trump expressed continued plans to deploy military forces to Chicago and to Baltimore. He indicated that “We’re going in,” but that he didn’t “say when.” To justify the military intervention into these cities, Trump pointed to his use of national guard forces in Washington, D.C. In announcing that more than 1,650 people have been arrested in Washington, D.C., since the mobilization of guard forces, Trump asserted, “This was a beautiful thing that happened in Washington because we show that it could be done.” | | As opposed to a roadblock, Judge Breyer’s decision appears to provide a new roadmap for the Trump administration. Rather than federalizing the Illinois or Maryland National Guards to engage in law enforcement activities, President Trump has indicated that he would request the National Guard of another state, such as Texas, to deploy to Chicago or Baltimore to perform the mission in Title 32 status. By remaining in Title 32 status, the National Guard would remain under the command of the state governor and, more importantly, would not be subject to the Posse Comitatus Act and its restrictions on engaging in civilian law enforcement. This deployment of the National Guard domestically to serve a civilian law enforcement function is in addition to the rapid deployment of ICE agents to enforce the Administration’s immigration crackdown. | | We express concern about the continued use of the military to enforce civilian law, whether military forces used are federal military forces or national guard units operating in Title 32 status. Several scholars and commentators havesuperblyaddressed the legal and societalconcerns of using the military in this manner. In this post, we add to the conversation by focusing on a lesser-discussed collateral consequence of the increasing use of the military domestically to enforce civilian law: the use of military attorneys (“JAGs”) to prosecute and adjudicate cases involving civilians in civilian courts and administrative hearings. | | The use of JAGs in this manner is already underway. The Department of Defense deployed twenty active-duty military attorneys to serve as Special U.S. Attorneys in Washington, D.C., where they are already prosecuting civilian criminal offenses in federal court. On the same day Judge Breyer found the Trump administration violated the Posse Comitatus Act, Secretary of Defense Pete Hegseth announced that approximately 600 military attorneys would serve as immigration law judges in administrative hearings. As this Administration continues to utilize the military domestically to enforce civilian law or at the very least, to assist those enforcing civilian law and ICE agents to aggressively detain alleged immigrants, it is only logical (while assuming a commitment to due process…) that as more arrests and detainments are made, more lawyers would be needed to both prosecute the defendants and to serve as judges in immigration hearings. Moreover, the Trump administration has repeatedly emphasized the need to clear the admittedly extensive and preexisting backlog in immigration proceedings. Consequently, JAGs provide another opportunity for the Trump administration to use military resources domestically. | | We begin in Part I by addressing the lawfulness of the use of JAGs in prosecuting and adjudicating civilian cases in civilian proceedings. In our forthcoming Part II, we will address, the potential “awfulness” of these practices, even if such uses are in fact lawful. | | Part I. The Lawfulness of Utilizing Military Attorneys in Civilian Proceedings | | The twenty active-duty JAGs appointed as Special U.S. Attorneys are prosecuting civilians for civilian offenses in civilian courts. As of now, they are doing so in Washington, D.C. Such appointments respond both to the increase in arrests since the deployment of the D.C. National Guard in a law enforcement capacity, where the units have the authority to temporarily detain individuals, and because of a mass exodus of assistant U.S. attorneys following President Trump’s inauguration. | | The Posse Comitatus Act poses the primary legal challenge to JAGs serving in this capacity. Under 18 U.S. Code § 1385, unless authorized by Congress or the Constitution, no individual may willfully use “any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force,” to execute civilian law. The case law defining what actually constitutes a violation of the Posse Comitatus Act is murky at best. Three tests have emerged. | | First, some courts consider whether the use of any part of the federal military pervades the activities of civilian law enforcement. For example, a military member assisting civilian law enforcement by advising on logistical support available from the Department of Defense, suggesting rules of engagement, recommending negotiations, and placing limitations on approved requests for military support would likely be found to pervade civilian law enforcement, while a mere provision of supplies or equipment to the civilian authorities would likely not. | | Second, other courts draw a distinction between active versus passive participation on the part of the federal military. Under this approach, passive participation is allowed, while active military involvement in direct law enforcement efforts would constitute a Posse Comitatus Act violation. Judicially recognized examples of active involvement include “arrest; seizure of evidence; search of a person; search of a building; investigation of a crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities.” Examples of passive involvement include preparation of contingency plans, advice or recommendations to civilian law enforcement on tactics or logistics; military delivery of military material, equipment or supplies; training local law enforcement on how to use or care for military equipment; and aerial photographic reconnaissance flights. | | Third, some courts ask whether the military personnel “subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature.” Judge Breyer utilized this test in finding the California National Guard violated the Posse Comitatus Act. In doing so, Judge Breyer focused on the military units setting up traffic blockades, using riot shields and military vehicles to establish a perimeter, and engaging in crowd control to establish that the California National Guard subjected civilians to regulatory, proscriptive, and compulsory military power. As a comparison, even if a military member is working with civilian law enforcement, there will be no Posse Comitatus Act violation if the comingled conduct targets a military member. | | Under any of these three tests, the use of JAGs to prosecute citizens in civilian court appears to violate the Posse Comitatus Act. Decades ago, Congress and the Executive Branch seemed to agree. In the early 1980s, U.S. Attorney’s offices increasingly used active-duty JAGs to serve as Special U.S. Attorneys in cases related to military installations and other military matters. In these cases, when military installations were under the exclusive jurisdiction of the federal government, military attorneys were able to handle minor criminal matters, such as a military dependent caught shoplifting on a military installation, in federal court, which allowed the full-time U.S. attorneys to focus on more substantial cases. For example, in 1982 alone, military attorneys acting as special assistant U.S. attorneys prosecuted over 70,000 misdemeanor offenses in federal court. | | The Office of Legal Counsel for President Ronald Reagan expressed concern about the lawfulness of the use of JAGs in this capacity, drawing upon the Posse Comitatus Act, the prohibition of military officers holding a civil office, and the tradition and history of the military remaining subordinate to civil authority, as opposed to the civil being subordinate to military authority. In response to the Reagan administration’s concerns, Congress passed an exception to both the Posse Comitatus Act and the ban on military officers holding a civil office that authorized the appointment and use of military attorneys as special U.S. attorneys “when the public interest so requires.” | | Consequently, JAGs serving as special U.S. attorneys became somewhat standard practice amongst subsequent administrations. They were limited, though, to prosecuting non-military members with some military affiliation for minor civilian criminal offenses that occurred on military installations. There is some indication that the seriousness of the offenses may have at times exceeded minor criminal matters, including the prosecution of a civilian for a murder that occurred on a military installation, but there remained some military nexus. Not until the first Trump Administration, when President Trump used JAGs to prosecute immigration violations at the border, does it appear that JAGs were used as special U.S. attorneys in federal court with no clear military nexus. | | While we believe the Trump administration’s use of JAGs violates the spirit and intent of the exception as the current prosecutions are not limited to military adjacent defendants acting unlawfully on military property, the legislation serves as a congressionally created exception to the Posse Comitatus Act. Thus, absent some other legal objection of which we are unaware, the use of military attorneys in this capacity appears to be lawful. | - Military Attorneys Serving as Immigration Court Judges
| | The lawfulness of military attorneys serving as immigration court judges is much less clear. As noted by several former JAGs who are now law professors, such a use of military lawyers is unprecedented and no clear legal template has been articulated to determine whether judge advocates serving as immigration law judges violates the Posse Comitatus Act or any other legal prohibition. To date, the Trump administration has not provided any legal justification or defense for the use of JAGs in this manner. That said, if using a JAG to serve as a federal prosecutor requires a congressional exception to the Posse Comitatus Act, it seems reasonable that a JAG serving as a judge in any non-military related civilian hearing, whether that be a federal criminal case or a federal immigration proceeding, would as well. | | Consider the duties of an immigration judge. They preside over hearings. They make factual and legal findings and issue orders on whether a noncitizen can remain in the U.S. or must be removed. They decide on potential relief and benefits, such as asylum or waivers. We believe such activities would constitute a Posse Comitatus Act violation under any of the three tests. Military attorneys’ role as adjudicators will be active and direct as they will be the finder of fact and the finder of law, comparable to a military police officer finding there is sufficient probable cause to arrest a civilian for a civilian offense They will subject civilians to compulsory action by issuing binding orders to civilians, much like military units establishing traffic checkpoints and stopping civilians. They will pervade the immigration hearings by nature of their role as the judge, much like a military commander who sets and determines the rules for civilians, as well as deciding what resources they receive and how they use them. Thus, at first look, we worry the Administration will violate the Posse Comitatus Act by using military lawyers in this capacity. | | However, the Administration appears to be aware of this risk and is tailoring its behavior accordingly. In directing the use of 600 military attorneys to serve immigration judges, Secretary Hegseth acknowledged that some of these attorneys may be civilian attorneys employed by the military departments. As the Posse Comitatus Act only restricts the conduct of the uniformed federal military, these civilian attorneys are not bound by its prohibitions. In addition, Secretary Hegseth also directed that these military attorneys would be instructed to not violate the Posse Comitatus Act when they serve as immigration judges. Such direction seems impossible. But what that direction does is perhaps inoculate these military attorneys and the Administration from a finding that they violated the Posse Comitatus Act. The statute dictates that no one may willfully use the federal military to enforce civil law. Perhaps by directing these military attorneys to not violate the Posse Comitatus Act, the Administration is prepared to argue that when the judges inevitably do violate it, they did not do so willfully. | | While we are uneasy about the legality of service member attorneys serving as immigration judges, please stay tuned for Part II, where we will address our profound concerns with the consequences of using military lawyers in the civilian system even if such practice is lawful. |
| The views expressed in this post are those of the authors and not of the Department of Defense or any military department. |
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