Military lawyers will prosecute border cases. They shouldn't.

Last week, spurred by media reporting, the Department of Defense announced it had agreed to provide 21 military attorneys, JAGs, to serve as Special U.S. Attorneys with the Department of Justice. These JAGs will not prosecute military offenses or advise commanders engaging in overseas operations, but will rather assist the Department of Justice in prosecuting violations of 8 U.S.C. Sections 1325 and 1326, which criminalize the unauthorized entry of “aliens” into the U.S.

I spent twelve years as an Air Force JAG, joining in 2005 straight out of law school. I joined with no military background, but I did have a strong opposition to the Iraq war. This could have made serving problematic, but the integrity displayed by the JAG Corps in Iraq made my decision to serve an easy one. When the Bush administration justified the use of torture, the top military lawyers, who led the services’ JAG Corps, spoke out in unison against the use of torture. They submitted written complaints to the Department of Defense and then appeared before Senate hearings to voice their opposition.

Their subordinate JAGs were just as courageous. With their careers on the line, JAGs assigned to prosecute detainees at Guantanamo Bay soon identified serious due process violations. Evidence that could clear detainees was being withheld. Evidence that statements were obtained through torture was disappearing. The prosecutors raised these concerns to their leadership and when the command ignored them, they requested reassignment. The courage and dedication to the rule of law inspired a generation of JAGs to do the same.

My service did not disappoint. I deployed to Afghanistan where I helped ensure detainees were afforded due process rights after their initial capture and every subsequent six months. I spent a substantial amount of time with the Defense Legal Policy Board, investigating how the military addressed instances where American forces in Iraq and Afghanistan killed civilians. The experience was an honest assessment of when we failed (and when we succeeded) to hold service members accountable.

The shared experience reflects that JAGs do not pledge a blind allegiance to their superiors. Instead, their allegiance is to the Constitution and the due process it guarantees, even if it means telling superiors their actions are improper. When due process is being deprived, they should oppose it. When they see threats to the rule of law, they should oppose it, even if the threat comes from their superior.

But, in not opposing the Department of Justice’s request, the top military lawyers failed their subordinate JAGs. They have allowed 21 JAGs to walk into a political firestorm with grave due process concerns – a situation where President Trump tweeted that the defendants should not have any access to the legal system.

They will walk into courtrooms and conduct mass trials with 40 to 70 defendants. These defendants do not speak English. They often share one public defender and may only spend five minutes consulting with that overworked attorney. They have no ability to mount a defense. The detainees in Iraq in 2007, in Afghanistan in 2010, and at Guantanamo Bay now have more due process rights and more access to legal representation.

Allowing JAGs to serve in this capacity politicizes their work and endorses these questionable court proceedings. It shifts the nature of the JAG Corps from an institution dedicated to candid legal advice in the war-fighting context to a political tool used for political objectives whenever the Department of Justice is not adequately funded.

The leadership of the services’ JAG Corps had a choice. They could have opposed the Department of Defense’s willingness to assist the Department of Justice. They could have turned to Congress and expressed their due process concerns. They could have turned to the press. They could have provided an equal number of JAGs to serve as defense counsels for the immigrants. But instead, they have betrayed the legacy of their predecessors and acquiesced to a higher and unlawful power.