| Whether lawful or not, as discussed in our prior post, the use of military lawyers as prosecutors in federal courts and judges in immigration cases is alarming. We highlight several areas of concern below. In noting the serious concerns, we do so cognizant of the wider context, with cities such as Chicago, Baltimore, and Memphis preparing for uninvited military deployments, with communities fearing masked ICE agents invading their homes, schools, and jobs, the use of lethal military force against alleged international criminals absent any clear or articulated legalauthority. Given these events, the use of military attorneys to backfill civilian lawyers may not seem particularly significant. But we believe it part of a larger erosion and decay of other legal and civil-military norms and standards that raise the real specter of an American citizen appearing before a military judge, prosecuted by a military attorney. This possibility should alarm us all. | | A. The Threatened Principle of Military Subordination to Civil Authority | | One defining feature of democracies is civilian control of the military. While the military retains significant discretion in how to achieve operational objectives, the civilian authority determines when and how to deploy the military. If the United States were to regularly try civilians in military courts with military attorneys, military judges, and military law, such action would turn the subordinate role of the military to civilian authority on its head even if a duly elected President or Congress made this decision. We, of course, acknowledge the use of civilian Department of Defense attorneys or even JAGs in federal courts as prosecutors and military judges in immigration court is not the same as prosecuting civilians in military courts a la Ex parte Milligan. But we believe this move notably and dangerously helps acculturate the public to the military’s inclusion in civilian justice. Neither wartime nor other pressing exigencies, as per Duncan v. Kahanamoku, justify this move. And even were we to agree with the Trump administration’s prioritization of quickly resolving immigration matters, we find it deeply disturbing that the Trump administration is itself partially responsible for the shortage of available civilian judges in the immigration system and then using that shortage to justify a military backfill. | | Moreover, injecting the military into immigration proceedings at a time when the current Administration seems much more interested in removal and punishment rather than rights protection and deliberate decision-making is particularly fraught. This move might be reasonably viewed as an effort to turn immigration courts into mere immigration enforcement agents, rather than independent neutral decisionmakers. It is true that immigration courts, like military courts, do not formally belong to the judiciary branch under Article III of the Constitution, but nonetheless, they retain great power over civilians and must both remain and appear to remain neutral as they adjudicate whether an individual may remain here freely, be detained, or be deported. | | We also worry that while this current move regarding immigration judges might be limited to alleged non-citizens in immigration courts, this Administration might be testing the waters to eventually get citizens in military courts. One ought not to be histrionic about possible slippery slopes, but even if one does not care about the military acting to restrict the liberty and civil rights of immigrants (which, to be clear, we think you ought to), military acts to restrict the liberty and civil rights of civilians more generally are even more concerning. This current move has to us the same flavor, even though this current instantiation is obviously both much narrower in scope and meaningfully legally different in terms of the use of military versus civilian courts and military versus civilian law. | | B. Legitimacy | | Conversely and yet still simultaneously, as some become willingly acculturated to the use of the military in civilian justice, those who do not may find the rulings and actions of these judges and attorneys deeply illegitimate. The perception that military judges will be issuing decisions as part of the military, or to perhaps appease their military leadership or the Executive branch, rather than as part of domestic civilian rule, even though that is not formally the case, may decrease the legitimacy of such immigration decisions and of trust in the U.S. legal system overall. The logic behind this intuition bears a resemblance to the Unlawful Command Influence doctrine in military justice, which emphasizes the vital importance of judicial legitimacy. In Bergdahl, the Court of Appeals for the Armed Forces affirmed that it is not just actual unlawful command influence that raises a potential error in UCMJ cases, but also perceived unlawful command influence. The concern that a reasonable person might believe a commander influenced a case even when she did not in fact do so is so dangerous to the institution that the mere perception can provide sufficient reason for a remedy. While Congress eliminated the perception of unlawful command influence as part of the overhaul of the military justice system in the 2022 NDAA, we share Rachel VanLandingham’s intuition that this doctrine is rooted in the Fifth Amendment protections to a fair trial and remains even if Article 37 changed. Here too, the reasonable belief that servicemembers are prosecuting and adjudicating civilian cases in their military capacity, even if they are not in fact doing so, can vitally erode the legitimacy of civilian justice. | | C. Under Command Influence | | Now, of course, the use of military prosecutors in federal courts and military judges in immigration court maintains many dimensions of civilian hierarchy over the military. So, for instance, the decisions run through civilian courts with the normal civilian appellate process for immigration cases, and the chain of command authority does not apply to military judges or military attorneys in their capacity as actors within these civilian courts. But one might still worry that even with that regular civilian control, that military chain-of-command influence could still impact these actors’ decision-making and render them partial, rather than impartial. For instance, if the commander of such attorneys, including but not limited to the commander-in-chief, indicates his preference for a high removal rate, might that subtly influence military judges hoping for promotions? So even though undue command influence would not be available as a doctrine for defendants in federal civilian courts or immigrants in immigration court, the same concerns that undergird its existence apply here as well with none of the remedies. | | D. Military Readiness | | Independent of the legal concerns about how this activity implicates the civilian legal system, we also lament the potential effect on the military system as a whole. Moving over 600 military attorneys to civilian tasks might negatively implicate military readiness in a variety of ways. Of course, given the military’s core mission, we are deeply concerned that sufficient military attorneys are available to provide legal guidance during armed conflict. At the current moment, the U.S. does not have a large deployment like the ones in Afghanistan or Iraq where military attorneys needed to ensure Geneva Convention and other legal compliance and rules of operation regarding targeting and detainee treatment to say nothing of other rules of engagement. Even so, military attorneys should still play a significant role in operations like the recent strikes on cartels and on the earlier strikes on the Houthis in Yemen. At the current level of military attorney staffing, we would be surprised if these 600 tasked attorneys implicated the military’s ability to accomplish those war related tasks with sufficient legal advice (or that staffing is the essential issue as the Administration might still choose to lock them out of those rooms or have found other ways to degrade advice giving in such situations), but what if the administration also delegates additional military attorneys do the same (or something similar) activities in cities like Los Angeles, Baltimore, Chicago etc. | | A perhaps more immediate concern is that such domestic civilian efforts will take JAGs from existing positions in military discipline. For instance, the Special Trial Counsel system, mandated under the NDAA ’22, provides for a much greater role of military attorneys in referring charges of certain offenses for court martial and then their prosecution. Should attorneys be taken from there or from the more commander-centric part of military criminal justice, such decreases could delay courts-martial and other disciplinary actions. As was repeatedly mentioned during the congressional debate on the NDAA ’22 reform, military discipline is essential to unit cohesion and morale, which is in turn essential to military readiness. | | Of course, attorneys might be taken from other areas instead, such as those involved in contracting or in providing non-criminal legal assistance to service members. But those too can affect mission readiness in a variety of ways. Any reduction in staffing can have untold ripple effects. And notably, most skills garnered as federal prosecutors of low-level offenses and immigration judges might not always easily transfer back to specifically usable military expertise. Of course, any legal practice might provide some value to attorneys such as practicing legal analysis, reading case law, asking questions of witnesses and the like, but burnishing their knowledge of immigration law, for example, does not seem to be the best way to develop their skills or use their time as relates for future military needs, even if it we conceded the value of their time for achieving non-military reasons. | | E. The Failure to Protect and Respond to the Military Lawyer’s Professional Responsibilities | | Professor Saira Mohamed has written extensively and importantly about the duties the U.S. government owes to its military members. These duties include the proper training of service members before they are deployed to a particular mission. Such a duty is especially relevant and important when it comes to military attorneys. Military attorneys remain bound to their professional rules of professional conduct. They also have additional rules of ethics and professional conduct established by their military departments. The ABA Model Rules of Professional Conduct require that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” | | While military practice, especially for those judge advocates who specialize in military justice, may translate into the necessary competence to serve as special U.S. attorneys, we have significant concerns as to whether these 600 military attorneys are sufficiently prepared, trained, and experienced to competently serve as immigration judges. Immigration law is not a core competency of military legal practice. It also appears the military departments are not that concerned about experience levels. In its request for volunteers to serve as immigration judges, the Air Force said immigration experience was desirable, but not required. The Air Force also promised that there would be some training provided, but also didn’t say when, where, or what this training would look like. | | By participating in this program, the military departments are failing in their duties to their judge advocates. They are availing their judge advocates to a mission that most are not competent to perform. They are doing so without even knowing what training the judge advocates will receive. And as such, they are placing their judge advocates in a position where they may commit legal malpractice and placing their bar license in danger. | | Even more problematic, individual military lawyers may not have a choice in the matter. At this point, both the Army and the Air Force are attempting to fill the tasking with volunteers. Both departments, though, allude to the possibility of involuntary tasking. For a military attorney who believes she lacks the competence to serve as an immigration judge, but is ordered to do so anyway, she becomes stuck in the lawful order quagmire. Because, as we explained in Part I, such orders are either lawful or at least not manifestly unlawful, service members may find themselves compelled to accept the orders and potentially risk their bar licenses, or in the alternative, refuse the order and face a potential court-martial. Either way, the government fails in its duties to its military members. | | Conclusion | | Given our beliefs explained in Part I that such practices are likely lawful, no meaningful role for judicial rejection exists. While the judiciary might be able to step in and slow or prevent some of the slippery slope options we outlined in our prior post, we cannot rely on courts to enforce civil-military norms that are just that, norms, rather than constitutionally mandated divisions. Nor do we expect Congress to step in by altering the Posse Comitatus Act or by modifying the statutory exceptions that allow for JAGs to serve as special U.S. attorneys, as they have shown no appetite to push back on domestic troop deployments either. Which leaves us where many of this Administration’s (and to be fair, many other administrations’) lawful, but awful policies leave us, which is hoping for effective political pushback from the public. This could be a registering of dissent through popular protest or turnout at the ballot box. Given the wave of activity from this Administration, we do not believe this issue alone will capture the public’s attention, but by shining a light on it and the fundamental problems it raises, we believe it ought to roll into and magnify the more general concerns of recent and looming domestic troop deployments. |
| 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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