After JAG firings, a difficult truth about military legal independence

The Judge Advocate General of the United States Army, Lt. Gen. Stuart W. Risch, visited Puerto Rico on Feb. 8 as part of his ongoing efforts to spread awareness about the Judge Advocate General program. (Photo by Sgt. Marcuss Moyett)

The recent decision by the secretary of defense to fire all three service Judge Advocates General (JAGs) sent shockwaves through the military legal community. Being a military lawyer myself, this decision went beyond a mere headline: It was deeply personal, as one of the JAGs who was dismissed was my boss.

Like many in the JAG Corps, my initial reaction was frustration. The prevailing wisdom holds that JAGs are neutral arbiters of the law, advising commanders without political influence. Their role is ensuring legal soundness of policies, not shaping them based on partisan considerations. The idea that they were removed for being “roadblocks” to policy seemed like an attack on that very principle.

But as I sat with this, I realized that history tells a more complicated story. This event, as shocking as it is, may not be an aberration. Instead, it reveals a truth about military legal advice, a truth I was reluctant to acknowledge but now feel compelled to explore.

A Pattern We’ve Seen Before

For those of us who have spent our careers in the JAG Corps, there is a comforting belief that our role is fundamentally different from that of civilian political appointees. We do not serve at the pleasure of the president like the attorney general, and our function is often described as purely legal, not political.

But if that were entirely true, why has history repeatedly placed military lawyers at the center of political battles?

Take, for example, the John Yoo torture memos from the early 2000s. Yoo, a lawyer in the Department of Justice’s Office of Legal Counsel (OLC), authored memos that provided legal justification for enhanced interrogation techniques, a policy deeply intertwined with the Bush administration’s political objectives.

When Congress sought clarity on these policies, they did not call military commanders to testify. They called upon the expertise of lawyers from both the civilian and military sectors.

Yoo and other administration-aligned lawyers provided testimony to Congress defending the policy decisions as legally justified. JAG officers, including the Judge Advocates General at the time, testified as well, voicing legal concerns about interrogation policies. The military testimony stood in stark contrast to the administration’s position, and it contributed to the eventual rollback of some policies.

This historical example illustrates a difficult reality: Legal advice in government is never purely neutral. It is always part of the policy process.

JAGs, whether we want to admit it or not, play a role in shaping and legitimizing military policies. Our legal opinions do not just exist in a vacuum; they influence what the Department of Defense is able to do, and as a result, they inherently intersect with politics.

Why the JAG Selection Process Invites This Problem

Unlike the attorney general, who is publicly nominated, confirmed by the Senate, and explicitly recognized as a political appointee, the selection of the Judge Advocates General is a closed process that takes place within the JAG Corps itself.

This insularity has long been seen as a safeguard against political pressure, ensuring that military legal advice remains independent. But it also means that when legal interpretations do not align with an administration’s policy goals, there is no mechanism for resolving that conflict — except for the kind of sweeping firings we just witnessed.

The secretary’s decision, whether intentional or not, highlights an uncomfortable pair of questions:

If JAGs function in a manner similar to civilian legal advisors who help implement executive policy, should their selection process be more transparent? And if we acknowledge that military legal advice plays a role in legitimizing or obstructing policy, can we still assume that JAG selection should be insulated from the administration?

None of this is to say that the secretary’s decision was the right approach. Blanket firings based on perceived policy misalignment, rather than demonstrated misconduct or incompetence, create serious risks.

First, such a move weakens confidence in military legal integrity. If JAGs can be dismissed purely because they provide legal interpretations that do not align with policy objectives, future legal advisors may feel pressured to offer guidance that is politically expedient rather than legally sound.

It could also politicize military legal advice even further. If the standard for removal becomes disagreement with an administration’s preferred policy direction, future JAG appointments may shift toward those who are perceived as more politically agreeable rather than legally rigorous.

And finally, it sets a precedent for instability. The role of JAGs should not be about political loyalty. While legal interpretation is an inherently political process, there must be room for good faith legal disagreement without fear of dismissal.

Where Do We Go From Here?

This moment calls for a serious discussion about the role of JAGs in military policy and whether the selection process should be reformed to better balance legal independence with accountability. In summation, the three key questions to consider are:

• Should JAGs be subject to a confirmation process, similar to civilian attorneys in government?
• Should there be clearer protections for legal officers to ensure that they are not dismissed solely for providing inconvenient legal opinions?
• Should we reconsider the way legal advice is integrated into DoD policymaking to reduce the perception that JAGs are policy gatekeepers rather than advisors?

These are not easy questions, and there are no simple answers. But ignoring them will not make the problem go away. The secretary’s decision may have been controversial, but it has forced us to confront a reality we can no longer dismiss: Military legal advice is not separate from politics, and our system does not fully account for that truth.

One potential solution, which would require Congress to get involved, would be to adjust the timeline of the JAG selection process to align with a new presidential administration. A selection process that begins after election confirmation and ends sometime within the first 100 days of the new presidential term would provide two layers of protection: If the process were to remain untouched by political influence, the timing would make it appear it was underwritten by the administration protecting the JAG Corps, and on the other hand, if political influence is inserted into the process there is time to adjust and make it an acceptable selection within the normal administration confirmation time.

As a military lawyer, I want to believe that our role remains one of principled legal guidance, unaffected by political shifts. But history suggests otherwise. If we do not grapple with this challenge now, we risk future administrations making similar moves, potentially with even more direct political motivations.

The JAG Corps must decide whether to engage in this debate proactively or risk being reshaped by it.

MAJ Trent Kubasiak is a judge advocate with Eighth Army in the Republic of Korea. Previously, he was chief of military justice, 10th Mountain Division and Fort Drum. He deployed three times to Afghanistan and once to Kuwait. He has a JD from Marquette University School of Law, Wisconsin; an LLM from the Judge Advocate General’s Legal Center and School, Virginia; and an MBA from Capella University.

The views expressed in this article are his own and do not represent the official position of the Department of Defense