Concerns Over Legal Guidance in Military Deployments

Legal Opinions Overlooked

Expert analysis in national security law raises alarms regarding the potential disregard for counsel from top military legal authorities by the current administration. Specifically, the Trump administration’s deployment of troops to domestic cities and its military operations against alleged drug traffickers have prompted significant unease about the legal implications of these actions.

James Baker, a law professor at Syracuse University and former chief judge of the U.S. Court of Appeals for the Armed Forces, voiced concerns during a recent discussion at the Center for a New American Security. He suggested that while military legal practitioners may be offering sound legal advice, there is an underlying suspicion that the administration may be circumventing such counsel by seeking alternate legal justification from the Department of Justice’s Office of Legal Counsel.

Historical Role of Military Legal Counsel

Baker, along with James McPherson, a retired rear admiral and former Army undersecretary, emphasized the critical role played by military lawyers in shaping sound operational decisions. The recent dismissal of the top judge advocates general from the Army, Navy, and Air Force by Defense Secretary Pete Hegseth has led to heightened speculation. Hegseth defended these dismissals as necessary to eliminate purported “roadblocks” to the orders of the commander-in-chief.

These developments coincide with a report revealing that a classified legal opinion from the Department of Justice has authorized continued military strikes on suspected cartel members. McPherson articulated the ethical and legal dilemmas faced by judge advocates during such operations, asserting that if he were in a similar position, he would meticulously document all advice and provide commanders with pathways to ensure their legal protection.

Questioning the Legal Foundations of Military Actions

In a notable executive order early in his second term, President Trump designated specific cartels as terrorist organizations, subsequently asserting that the U.S. is now engaged in an “armed conflict” against these entities. However, Baker critiqued this rationale, suggesting that the mere labeling of organizations does not suffice for justifying militarized interventions.

The absence of significant, ongoing violent hostilities among these groups leads to skepticism regarding the legality of the military’s expanded role. “The issue appears to be reverse engineering,” Baker remarked. “There is no evidence of an armed group engaged in consistent violence.”

Domestic Deployments and Legal Challenges

In addition to international operations against cartels, the Trump administration’s deployment of National Guard personnel to cities such as Chicago, Portland, and Memphis has been met with a slew of legal challenges. Earlier deployments to Los Angeles and Washington, D.C., have similarly prompted lawsuits, raising further questions about the legal justifications employed by the administration.

McPherson highlighted discrepancies in the administration’s rationale for the Los Angeles deployment, asserting that the claims made lacked empirical support and were divorced from actual ground conditions. “The facts articulated by the administration were not aligned with the evidence,” he stated.

Ethical Obligations of Military Counsel

Judge advocates general play a pivotal role in steering military operations within the legal framework. An August survey conducted by the University of Massachusetts Amherst revealed that four out of five service members understand their obligation to disobey unlawful orders. Baker urged commanders to be forthright in the face of illegal directives, emphasizing, “If the judge advocate indicates a course of action is unlawful, the commander must acknowledge the implications.”

By reinforcing the fundamental obligation to adhere to legal advice, the military can maintain integrity in its operations and uphold the rule of law even amid politically charged directives. Commanders bear the responsibility of making principled decisions that align with both their ethical obligations and the law, thereby safeguarding not just their personnel but the broader integrity of military engagement.