This rationale fails on every level. Drug interdiction has been a law enforcement mission since the Reagan administration, not warfare—despite this administration’s attempt to relabel criminal organizations as military enemies. Leading legal experts, including Mike Schmitt, Geoff Corn, Ryan Goodman, and Tess Bridgman, have forcefully argued that we are not in armed conflict with drug traffickers, and the threat they pose must lawfully be addressed through law enforcement, not lethal military operations.

I agree. But even if we accepted the administration’s deeply flawed premise that we are at war, the second strike—targeting defenseless survivors floating in the water—violated fundamental laws of war. These survivors were shipwrecked persons, hors de combat, entitled to protection and rescue, not attack.

Whatever may have been the legal advice in the moment of the strike, it should be clear to those doing any after-action analysis that it was clearly illegal and not close to what Secretary of Defense Pete Hegseth has repeatedly called the “correct decision.”

Why This is Peacetime Law Enforcement, Not War

Simply put, despite labeling these groups “narco-terrorists,” maritime drug interdiction remains a peacetime law enforcement mission, squarely within the longstanding responsibilities of the U.S. Coast Guard. International law, including the law of the sea and international human rights law, govern these operations, not the law of armed conflict, which might allow for lethal operations.  

As a policy matter, there is good reason the use of non-lethal force works well in this context: even the U.S. military, which possesses the best intelligence capabilities in the world, can make mistakes and target the wrong people. The U.S. Coast Guard’s own statistics on its boarding operations support the need to take a more measured, law enforcement approach—21% of all vessels stopped by the Coast Guard off the coast of Venezuela between Sept. 1, 2024 and Oct. 7, 2025 possessed no drugs. Sometimes these vessels are piloted by drug traffickers, and sometimes they are just fishermen. We never know until the vessels are boarded and searched. When we strike first and ask questions later, the evidence and actionable intelligence that we could learn are lost forever.

The Duty to Rescue Under Peacetime Law

Customary international law has long recognized the affirmative obligation to render assistance to persons in distress at sea. This obligation is so powerful and so fundamental to the law of the sea that the right to render assistance allows a foreign vessel to enter another nation’s territorial sea to render emergency assistance to those in danger or distress. In fact, the rescuing vessel does not even need the express permission of the coastal state if it is rendering assistance to a vessel in distress. 

This duty to render assistance is further memorialized in the 1958 Geneva Convention on the High Seas, the 1974 International Convention for the Safety of Life at Sea, and Article 98 of the 1982 UN Convention on the Law of the Sea. U.S. Navy Regulations, Coast Guard Regulations, and the U.S. Navy Commander’s Handbook on the Law of Naval Operations reinforce this duty to render assistance, requiring commanding officers to proceed with all possible speed to render assistance to any person found at sea in danger of being lost. 

What if a commanding officer fails to comply with Navy or Coast Guard Regulations? Both are lawful general orders under Article 92 of the Uniform Code of Military Justice, and failure to comply and render aid opens the door to potential prosecution at court-martial. There is precedent for holding commanding officers accountable for failure to render assistance. In 1988, the commanding officer of the USS Dubuque was court-martialed for failing to give adequate assistance to 80 Vietnamese refugees adrift in a dilapidated junk in the South China Sea.

Even Under the Laws of War, This Strike Was Unlawful

But the administration is putting forth a different rationale, invoking a separate legal paradigm—the law of armed conflict (LOAC). Even under this (deeply mistaken) invocation of LOAC, the justification to strike the shipwrecked survivors fails. As my colleague Geoff Corn has noted, this is an attempt to push a square legal peg into an operational and factual round hole.

For the sake of argument, let’s assume—purely hypothetically and against all evidence and legal justification—that the United States is in a non-international armed conflict with so-called “narco terrorist” groups. If true, the LOAC would apply. Applying LOAC to the facts in the Caribbean is inherently strained. Nothing about this situation resembles the circumstances LOAC was designed to govern. The law of naval warfare contemplates engagements between warships in armed conflict—not missile strikes against small civilian drug vessels operated by traffickers. Nevertheless, I will proceed with a LOAC analysis of the situation below, beginning with the meaning of “shipwrecked” under that body of law (which, again, clearly does not apply despite the administration’s claims to the contrary).

The Sept. 2 Strike Survivors Were “Shipwrecked” Under International Law 

“Shipwrecked” is quite a broad term under both international law and U.S. military doctrine. It encompasses both civilian and military personnel who are in peril and clearly applies to the two survivors of the Sept. 2 strike. 

The 1949 Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces applies in armed conflict. The United States is a party, and Article 12 of the Convention defines “shipwrecked” to encompass those imperiled by shipwrecks “from any cause,” including forced aircraft landings at sea. The 1977 Additional Protocol I to the Geneva Convention expands the definition of those who are “shipwrecked” to encompass “persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune.” 

The U.S. Navy’s Commander’s Handbook on the Law of Naval Operations reinforces this broad definition of shipwrecked persons, to include “those in peril at sea or in other waters as a result of the sinking, grounding, or other damage to a vessel in which they are embarked.” 

Bottom line and as a baseline of applying the law to the facts: the two survivors of the first boat strike on Sept. 2 meet the definition of “shipwrecked” personnel under the laws of war.

Shipwrecked Persons Are Protected as Hors de Combat

Shipwrecked persons are generally considered hors de combat (French for “out of combat”) and protected from attack. The obligation to protect shipwrecked persons out of combat is included in Common Article 3 of the Geneva Conventions, fundamental rules that apply in non-international armed conflicts (NIACs), which the administration claims the United States is presently engaged in. The U.S. Supreme Court has already opined that Common Article 3 protections broadly apply to U.S. military operations that qualify as such.

Furthermore, the Geneva Conventions, Additional Protocol I, and the DoD Law of War Manual all state that people incapacitated by wounds, sickness, or shipwreck have protected status. The Manual explains: “Persons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack.” Shipwrecked personnel may be detained, but they may not be intentionally attacked.  

Indeed, reports indicate the survivors had no weapons or communication devices at the time of the second strike, were clinging to debris, and were in danger of drowning—classic indicators of hors de combat status. And the principle of humanity—central to the law of armed conflict and reinforced in the DoD Law of War Manual—requires protecting enemy wounded, sick, and shipwrecked personnel. Indeed, it is the very origin story of the modern laws of war and the International Committee of the Red Cross starting from the battle of Solferino in 1859.

The Military Had a Duty to Render Assistance

The U.S. Navy/Marines/Coast Guard Commander’s Handbook on the Law of Naval Operations requires forces to take all possible measures, consistent with their own security, to search for and rescue shipwrecked personnel. It states: “following each naval engagement at sea, the belligerents are obligated to take all possible measures, consistent with the security of their forces, to search for and rescue the shipwrecked.” The DoD Law of War Manual reaffirms that in all circumstances, the wounded, sick, and shipwrecked shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.

Nothing currently indicates that rescuing these two individuals posed any concrete risk to U.S. forces, which are heavily deployed across the region. 

Does the customary and treaty-based duty to render assistance in UNCLOS, SOLAS, and customary international law evaporate? Not necessarily. The outbreak of hostilities does not necessarily suspend UNCLOS and other established protections. Article 17 of Additional Protocol I to the Geneva Conventions specifically authorizes the “civilian population and aid societies” to collect and care for shipwrecked personnel, suggesting that the duty to render assistance is not automatically suspended in wartime. The United States takes the position that treaties like the Geneva Conventions are “lex specialis in relation to treaties providing peacetime norms concerning the same subjects.” However, that is usually on a rule-by-rule basis, and the lex specialis (or more specific rule) displaces the more general but still applicable law only where the two conflict. Here again, the relationship between the drug traffickers and the United States is not a traditional armed conflict between two belligerent powers that would obviate preexisting legal requirements, including applicable U.S. treaty obligations. 

Alongside the duty to rescue, the DoD Law of War Manual recognizes “feasible precautions must be taken to reduce the risk of harm to military personnel and objects that are protected from being made the object of attack, such as military personnel placed hors de combat.” Feasible precautions, another obligation of LOAC, could take many forms in this context. It might include Coast Guard or Navy personnel employing non-lethal options to sink the vessel, destroy the drugs without killing the survivors or, simply put, trying to rescue the survivors. 

When Shipwrecked Survivors Lose Protected Status

The law of armed conflict for naval warfare is largely focused on two belligerent states using warships to engage in combat, not one military force targeting a civilian drug vessel piloted by drug traffickers. Nevertheless, here are the clear legal standards to help guide the analysis.  

Additional Protocol I

First, Article 41 of Additional Protocol I states that a shipwrecked person shall not be made the object of attack “provided that … he abstains from any hostile act and does not attempt to escape.” Merely possessing a weapon or a communication device does not automatically transform a shipwreck member’s status (all pilots, for example, fly with both during combat operations). 

Members of Congress who viewed the video of the second strike on Sept. 2 indicate that they saw two shirtless, unarmed survivors without means of communication waving their arms before they were killed, assessments that were reportedly supported by Admiral Frank Bradley and Joint Chiefs Chairman General Dan Caine. These facts do not rise to the level of a hostile act, nor is there evidence that the survivors had any means to escape. The vessel lacked “any means of locomotion,” and there is no evidence that the survivors could communicate, making exigent escape practically impossible. (As noted above, it’s important to reiterate here that the men were not fighters in the first instance, and had no means of fighting to begin with, but this section is assuming for the sake of analysis that LOAC applied and that the men could have been considered hostile at the outset – which is factually unsupported.) 

The Geneva Convention Commentary on Small Vessel Operations

The commentary to the Second Geneva Convention is especially stringent for small-vessel naval operations, placing even higher protections for patrol craft and other small craft. The commentary stresses that attackers must be alert to the moment when a small vessel ceases all hostile acts. At that point, all attacks must stop. It states, in full:  

In the case of naval operations involving small vessels and few people, attacking forces are able – and are therefore obliged – to be attentive to the moment when a wounded, sick, or shipwrecked person ceases all acts of hostility. In the midst of hostilities, a combatant’s status may change within seconds from being a lawful target to being a protected person by reason of wounds or distress at sea. Therefore, the attacking force must be alert to the possibility that an injured or shipwrecked combatant will cease hostile acts and, accordingly, suspend or cease an attack at any moment. The visible abandonment of all hostile acts by a wounded or shipwrecked combatant must put an end to all hostile acts against that person.

So the commentary places a duty on the “attacking force” to immediately stop attacking shipwrecked or wounded people if there is visible abandonment of all hostile acts. 

This is yet another reason why the American public needs to see the second video—we have 41 minutes of video evidence (the time between the first and second strike). Two lawmakers stated that the survivors waved to a U.S. aircraft in an apparent plea for help—a visible abandonment of all hostile acts (recall, on the actual facts and law underlying this strike, the men were engaged in no hostile acts to begin with). You do not need to be a lawyer to conclude that waving or attempting to right-size a destroyed boat without propulsion does not constitute a “hostile act” against the United States within any sense of the words. 

The U.S. Navy Handbook on the Law of Naval Operations

Second, the U.S. Navy Handbook on the Law of Naval Operations reiterates the AP I guidance and goes further:

Shipwrecked persons do not include combatant personnel engaged in seaborne attacks who are proceeding ashore, unless they are clearly in distress and require assistance. They qualify as shipwrecked persons only if they have ceased all active combat activity. 

Again, we run into applying a legal square peg into an operational round hole. It is unclear how, exactly, a drug trafficker can engage in a combat activity, and in turn, provide evidence of cessation of that activity. Even in the imaginary world in which this was an armed conflict and taking drugs to market in Europe or Africa were war-sustaining operations, even getting back on a fully operational drug boat would not be combat activity, and the people transporting the drugs would qualify as civilians who were not taking part in hostilities.

The DoD Law of War Manual

Third, the DoD Law of War Manual sets forth a slightly different test to explain when shipwrecked personnel lose their protected status and may be lawfully targeted. It states that “shipwrecked persons must need assistance and care, and they must refrain from any hostile act.” “Hostile act” is not clearly defined in the Geneva Conventions. Yoram Dinstein, a widely respected international scholar, notes that persons hors de combat commit a hostile act when they are “still participating in the battle action.” But drug traffickers do not engage in battle, and the analysis above applies.

Historical precedent is also unfavorable to the administration. The WWII Peleus case flatly rejected a German U-Boat commander’s claim that shipwrecked survivors could be targeted due to possible signaling capability.

The San Remo Manual

The influential San Remo Manual on International Law Applicable to Armed Conflicts at Sea discusses shipwrecked persons in life rafts and lifeboats. While there is no evidence that the small drug vessel had any life raft, the commentary helps provide context to shipwrecked survivors. It states:

It is irrelevant that the persons concerned may be fit and therefore possibly in a position to participate in hostilities again, for attacking them would be a war crime. On the other hand, this protection ceases if they actually start committing hostile acts again.  

The Administration’s Arguments Fall Short

The Department of Defense seems to be making four arguments justifying the second strike. Each falls short. 

Argument One: The Drug Boats Are Lawful Military Objectives

First, the Department appears to be arguing that the drug boats are lawful military objectives. But the DoD Law of War Manual states that military objectives “include any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture, or neutralization … offers a definite military advantage.” The United States gains no articulable military advantage from targeting these drug boats that are led by gangs or cartels and that are not involved in military action against the United States. (See Schmitt, Bridgeman, and Goodman for further analysis.) 

Argument Two: The Strike Targeted the Drugs, Not the Survivors

Second, the military is arguing that the second strike was not an attack on the survivors per se, but an attack on the drugs themselves. Admiral Bradley reportedly explained that he ordered the second strike “to destroy the remains of the vessel … on the grounds that it remained afloat and still held cocaine.” The survivors were collateral damage, the reasoning goes, to the otherwise lawful attack on the drugs. But to qualify as a lawful target, the drugs must be a “war-sustaining object” and “support and sustain the belligerents’ warfighting capability.” This tenuous argument appears to be based on the still-unreleased OLC opinion justifying the action.  

But as Mike Schmitt, Tess Bridgeman, and Ryan Goodman astutely noted earlier this week, the boats and drugs are not war-sustaining objects because there is no war to sustain. Drug sales flow back to enrich criminal enterprises, not fund arms to be used against U.S. military forces in the region or to conduct military hostilities in or against the United States.

Argument Three: The Administration was Unable to Take Feasible Precautions to Reduce the Risk of the Attack on the Shipwrecked Survivors

Alongside the duty to rescue, the DoD Law of War Manual recognizes “feasible precautions must be taken to reduce the risk of harm to military personnel and objects that are protected from being made the object of attack, such as military personnel placed hors de combat.” Feasible precautions, another obligation of LOAC, could take many forms in this context. It might include Coast Guard or Navy personnel employing non-lethal options to sink the vessel, destroy the drugs without killing the survivors, or, simply put, trying to rescue the survivors by dropping a raft in the water to let those men get away before the second strike. None of these measures would have compromised the underlying military advantage. And all seem feasible based upon what we know.  But even if there were such an incremental military advantage in destroying possibly remaining cocaine bound for Europe and sinking the already inoperable vessel, it surely would have been outweighed by the deaths of two shipwrecked survivors.

Argument Four: The Survivors Could Have “Returned to the Fight”

Fourth, Admiral Bradley noted that the “survivors could hypothetically have floated to safety, been rescued, and carried on with trafficking the drugs.” But this justification to attack the shipwrecked survivors could be used against any shipwrecked survivors (to include American servicemembers) now and in the future to eviscerate hors de combat protections. 

Hypothetically, the ocean currents could float any shipwrecked survivor back to safety, where they could hypothetically take up arms again sometime in the future. This is a textbook example of reverse engineering the legal justification in such a manner that expands the exception beyond all recognition, swallowing the stated rule. The fact that the admiral would state such a justification is a worrisome sign of how weak the legal reasoning has been.

The Context Matters

Finally, the Sept. 2 strike was the first kinetic strike against drug traffickers in the Caribbean. This strike marked a significant departure from over 40 years of maritime law enforcement operations against drug traffickers. We don’t know if the shipwrecked survivors even saw the missiles before they impacted the boat and killed the other alleged traffickers. They might have thought they had a catastrophic engine failure or accidentally hit a floating munition.

The two survivors were likely in a state of extreme shock and were likely suffering from injuries after their boat was blown apart in international waters (including from the soundwave blast). What were they thinking following the strike? We will never know for sure. It has been reported that the survivors were waving, in a possible sign of seeking help. There is no reason to believe that the two remaining survivors were even aware that they were struck by a military drone—why would they believe that a U.S. military force would preemptively attack them? How would they even know that trying to rightsize the remaining wreckage to survive might mark them as a target?  

Conclusion 

The Sept. 2 strike against shipwrecked survivors marks a dangerous departure from established international law and decades of U.S. maritime practice. The legality of this action does not actually depend on the administration’s claim that the United States is in armed conflict with drug traffickers—a position that finds no support in international law, state practice, or the factual circumstances in the Caribbean. It would be clearly illegal either way. Yet here we are. As my colleague Geoff Corn noted, “The real problem here is the dubious and legally overbroad assertion that the United States is justified in using wartime authority against a criminal problem.”

Even accepting this flawed premise for the sake of argument, the strike fails under the laws of armed conflict. The two survivors were shipwrecked persons, hors de combat, clinging to debris without weapons or means of escape. They were entitled to protection and rescue, not attack. The administration’s arguments require stacking legally unsupported inferences—that transporting drugs constitutes armed conflict, that traffickers are combatants, that helpless and unarmed survivors posed an imminent threat—to justify an action that would have been unthinkable under four decades of Coast Guard operations.

The broader implications are deeply troubling. If the administration’s legal theory prevails, it transforms routine law enforcement operations into armed conflict, strips away protections for vulnerable persons at sea, and abandons the duty to rescue that has anchored maritime law for centuries. It also endangers U.S. servicemembers and mariners who rely upon these legal protections. This precedent, if left unchallenged, threatens to erode fundamental humanitarian protections in contexts far beyond drug interdiction.

Yet, the Secretary of Defense has said in retrospect the strike was the “correct decision,” and that the military made no changes to its procedures or protocols since.

The American people and their representatives in Congress deserve answers. The administration must release the full Office of Legal Counsel opinion(s) underlying Operation Southern Spear, the intelligence underlying the strike, the Strike Bridge message communications and chat, all relevant videos, and initiate a bipartisan, congressional investigation. Until then, this action stands as what it appears to be: a manifestly unlawful attack on defenseless persons that violates both the letter and spirit of the laws of war and the laws of peacetime law enforcement.

The post The Law on Targeting Shipwrecked Drug Traffickers: Expert Backgrounder appeared first on Just Security.

I agree with Professor Jack Goldsmith that if the media reporting is accurate, this military operation is a “dishonorable strike” that is illegal under international law and the laws of war.  This sentiment and logic was echoed by former U.S. military lawyers. The illegal order also runs contrary to longstanding U.S. military doctrine and U.S. Navy Regulations governing the treatment of survivors at sea. (See, also, this analysis by Michael Schmitt, Ryan Goodman and Tess Bridgeman.)

But beyond the troubling legal issues associated with the strike, killing unarmed and vulnerable survivors is stunningly shortsighted. Killing survivors of a military strike is not just patently illegal and morally reprehensible; it is strategically reckless.

The United States, which has military forces deployed around the globe, cannot build a safer world for its own servicemembers by discarding basic laws of war. History shows that when America blatantly abandons humane norms and the law of war, it ultimately endangers its own people.

Compliance with international law—including the laws of war—is built, in many respects, on reciprocity. If the United States abandons these rules, it cannot expect its adversaries to follow them when Americans are the ones captured, isolated, shipwrecked, or shot down. And it’s not just reciprocity. Weakening the legitimacy of such fundamental rules also corrodes the underlying foundation of a system that serves U.S. servicemembers time and again. As the world’s most widely deployed maritime power, the United States relies on these protections more than any other nation. And what’s more, illegal orders create moral, reputational, and strategic harm long after the violations of law have ceased.

Here’s how.

International law, including the laws of war, exists to protect our people—not just “theirs” 

The duty to rescue or protect shipwrecked or wounded survivors at sea is among the oldest and most widely respected requirements in international law. Nearly every maritime nation abides by it, and not just because abiding by the rule of law is the honorable path. There’s also a strong incentive to ensure this particular rule is respected because anyone can become a shipwreck survivor—including U.S. Sailors, Marines, special operators, and Coast Guard crews.

This duty is reflected in both the laws of war, which apply during armed conflict, and in international human rights law and law of the sea requirements (it remains a highly contestable proposition that the United States is at war with narco-terrorists). Regardless of whether or not this is an armed conflict, killing survivors violates longstanding requirements that protect U.S. servicemembers.

The United States helped enshrine this principle during WWII.

In the Pacific theater in World War II, certain Japanese naval units adopted “no survivors” policies, killing Allied sailors adrift at sea. The U.S. Navy explicitly rejected this approach. The U.S. State Department protested “this inhuman form of warfare practiced by Japanese forces in brutally attacking helpless survivors of a torpedoed vessel … which are contrary to all standards of civilized conduct.” In contrast, American rescuing practices not only upheld the rule of law but also strengthened U.S. claims to humane treatment for American POWs. Leading by example, American practices became part of the foundation of the postwar law of the sea.

In the Atlantic theater, the actions of German U-boat 852 provides an even clearer example. After sinking the SS Peleus, a Greek vessel under charter for the British military, the U-boat crew fired on shipwrecked survivors. Five German sailors were prosecuted for war crimes by the United Kingdom in a military court in Hamburg. The German commander claimed “operational necessity,” while others argued they were following orders. The court quickly rejected both defenses, after deliberating for just 40 minutes. Three were sentenced to death; two received lengthy prison terms. The message was unmistakable: killing survivors is a war crime, and “following orders” is no excuse.

Violating this longstanding principle is not a one-off tactical decision; it fundamentally reshapes global expectations of U.S. conduct. If America signals that it may kill survivors, adversaries will feel free to do the same when the situation is reversed. That puts a wide range of U.S. personnel at risk, and not just those who may be shipwrecked—it threatens pilots who eject over hostile territory, soldiers separated from their units, and special operators isolated behind enemy lines.

It also erodes the related requirement to provide assistance to vessels or people in distress—a requirement the United States relies on in the Pacific, in the Middle East, in the Arctic, and elsewhere when operating outside of armed conflict. Humane treatment of shipwrecked survivors is not charity; it is a shield protecting American servicemembers and American mariners in need.

That’s why, when Iranian forces detained American Sailors aboard two Navy vessels in January 2016, the United States could credibly and immediately demand humane treatment. During this incident, one of the Navy vessels suffered a mechanical issue while in Iranian waters. The Sailors were released unharmed within hours—an outcome far less likely if the United States then had a practice of killing survivors at sea.

I was serving as a Navy JAG at the time of this incident, and helped lead the investigation of Iran’s detention of the American sailors. A declassified version of the lengthy report on their detention is now publicly available. Our report noted that Iran had a duty to assist and aid the American sailors conducting innocent passage, consistent with Article 98 of the UN Convention on the Law of the Sea.

Violating the law undermines the United States’s moral legitimacy and carries real strategic costs

Violating international law also undermines the moral legitimacy underpinning current and future U.S. military operations. Moral legitimacy is a strategic asset, not a “nice extra.”

When the United States abides by the laws of war, it strengthens its ability to shape global expectations, sustain coalitions, and demand humane treatment for its own forces.

But if the United States authorizes the killing of defenseless survivors, it sends a clear message to the world: the United States does not take maritime law, fundamental human rights, or the law of armed conflict seriously. Why then should adversaries—or even partners—respect these rules?

Forfeiting the moral high ground also makes it harder to maintain cohesion with allies. The U.S. experience with torture after 9/11 offers a stark warning: America’s willingness to violate humanitarian norms still haunts its global reputation and weakens its ability to demand humane treatment for its own servicemembers.

Violating the law corrodes internal discipline and harms U.S. servicemembers from within

For many American servicemembers, the military’s honor code and commitment to the rule of law are central to why they serve. We are supposed to be the “good guys.” Indeed, the U.S. Navy’s core values are honor, courage, and commitment. When the state abandons those values, it can demoralize troops, create long-lasting moral injury, and fuel distrust within the ranks.

The continual psychological and institutional damage of post-9/11 abuses is well documented. Illegal orders create moral injury, erode discipline, and breed cynicism. They degrade the professional code, weaken force discipline, and make future misconduct more likely. A military that is asked to carry out illegal or dishonorable actions suffers long after the moment has passed.

History shows the corrosive consequences of illegal actions

The United States has already experienced the consequences of abandoning the laws of war. After 9/11, the Justice Department’s Office of Legal Counsel purported to authorize torture. Putting the well-known human and moral toll aside, the strategic results were also catastrophic: unreliable intelligence, diminished global credibility, damaged alliances, rallying of extremists, and the erosion of America’s ability to demand humane treatment for its own captured personnel. In an investigation into the CIA’s Detention and Interrogation Program, the Senate Select Committee on Intelligence found that the CIA program “caused immeasurable damage to the United States’ public standing” and to the “United States’ longstanding global leadership on human rights in general.”

The Abu Ghraib torture and prison scandal in Iraq led to broad strategic consequences with people around the world questioning the legitimacy of the U.S. mission there. During the floor debate on the Detainee Treatment Act, Senator John McCain—who experienced torture while detained at the Hanoi Hilton in Vietnam—stated, “[M]istreatment of our prisoners endangers U.S. troops who might be captured by the enemy—if not in this war, then in the next.”

The Path Forward

Both the House and Senate Armed Services Committees have promised rigorous oversight of Pentagon operations in the Caribbean. At minimum, this must include full release of any relevant videotapes, especially of the Sept. 2 incident, and the accompanying Office of Legal Counsel opinion(s) purporting to justify the overall operations. And central to this investigation must include an examination of the consequences of this action, to include the increased risk that this incident has on American servicemembers who are operating around the globe.

The stakes are clear. If America chooses a path where killing defenseless survivors becomes acceptable, American servicemembers will pay the price for that choice. The United States as a whole will see a loss to our reputation, alliances, and our ability to appeal to the rule of law in the myriad ways that support vital U.S. interests.

The laws of war and fundamental human rights aren’t a restraint—they’re a shield.

They protect American lives today and preserve America’s honor tomorrow.

The post Killing Shipwrecked Survivors is Not Just Illegal—It Endangers U.S. Servicemembers appeared first on Just Security.

Immigration judges are typically career civil employees who are appointed by the Attorney General to serve as administrative judges. Assigning JAGs these positions may well violate the Posse Comitatus Act, a key law that prohibits the military from “executing” civilian laws. Besides being against the law, the appointments are a bad idea. They breach the foundational norm separating military authority from civilian governance. It would be as if active-duty military officers were assigned to serve as tax court judges or administrative law judges, proposals that would immediately raise constitutional concerns.

The plan to reassign hundreds of JAGs also removes them from the military where they are needed to provide critical legal advice, including on the deployment of the National Guard to U.S. cities and the use of lethal force, including in the Caribbean. Despite the Trump administration’s efforts to sideline military lawyers (including firing the top uniformed JAGs in February), the counsel provided by JAGs on complex legal matters is more important than ever. Congress, which has the constitutional authority to make rules for the “Government and Regulation of land and naval forces” should closely scrutinize any effort to hollow out the JAG Corps.

Two Plans to Turn Military Lawyers Into Immigration Judges

The administration has floated two options for reassigning JAGs. One plan was announced by Secretary of Defense Pete Hegseth and involved the use of JAGs serving as a federal military force. Separately, Florida Governor Ron DeSantis announced a plan involving a small number of Florida National Guard JAGs. By regulation, temporary immigration judges are subject to the management and oversight of the chief immigration judge at the DOJ. Still, it is unclear if these newly assigned JAGs will act in an entirely civilian capacity or if they will continue to function under their usual military chain of command. Although many details remain unclear, we have an understanding of the broad outlines of the potential plans, along with the significant concerns they raise about the legality of the JAGs’ assignments and anticipated work.

Plan #1: Assigning Active-Duty and Reserve JAGs as Immigration Judges

The first option, which has already begun, is to reassign active-duty and reserve JAGs to work as immigration judges. News of the plan broke in early September, just days after the DOJ dropped the requirement that temporary immigration judges be either administrative law judges or retired DOJ immigration adjudicators. Now, the DOJ allows “any lawyer” to serve as an immigration judge. This regulatory change skirted traditional notice-and-comment processes that would call for transparency and an opportunity for contemporaneous public comment. Instead, the new rule relied upon comments solicited 11 years ago during the Obama administration. At that time, the DOJ implemented a rule change permitting former immigration law judges and administrative law judges to serve as temporary immigration judges for renewable six-month terms. The Trump DOJ initiative goes much further, short-circuiting the administrative rulemaking process and paving the way for JAGs to be detailed as immigration judges.

This change in defining who is eligible to serve as an immigration judge is not a routine personnel revision, and, therefore, it should be closely scrutinized and subject to traditional notice and comment procedures. After all, allowing any lawyer–including JAGs–to serve as a temporary immigration judge, regardless of their qualifications, affects the due process rights of immigrants appearing before the court, who are no longer assured that the judges hearing their cases are versed in the complex legal specialty of immigration law. Further, although JAGs can serve as military judges presiding over courts-martial, they generally lack immigration law expertise and rarely have adjudicated civilian matters.

Plan #2: Assigning National Guard Members as Immigration Judges

The second reported plan involves calling up National Guard JAGs to work as immigration judges. In July, for example, President Donald Trump and DeSantis (himself a former Navy JAG) reportedly agreed to assign Florida National Guard lawyers to do just that. According to Florida’s Immigration Enforcement plan, these assignments would make only a small contribution to the effort to detail hundreds of JAGs as immigration judges: just nine field-grade National Guard members are suitable for service as immigration judges. In addition, to serve as immigration judges, Guard members would have to be activated and federalized under the command and control of the president, but the only way to do so is under 10 U.S.C. §12301(d), which requires the consent of the Guard member to be activated.

Under either plan, there are significant questions about the legality of the appointments, including whether they violate long-standing laws prohibiting JAGs from serving as civil law enforcement.

Violating the Posse Comitatus Act’s Plain Meaning

The appointment of JAGs to serve as immigration judges violates the Posse Comitatus Act (PCA). A “posse comitatus” is a Latin term used in British and American law to mean a group of people a sheriff mobilizes to suppress lawlessness. The PCA is a criminal law that dates to 1878, and bars any part of the federal military forces from being used as a posse comitatus, i.e., participating in civilian law enforcement. The statute, in full, states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Under the PCA, implied authority is not enough; the authority to execute the laws must be “expressly authorized by the Constitution or Act of Congress.” The JAG assignments fall within the PCA ban because immigration judges execute domestic law, and there is no express authorization for military lawyers to serve as immigration judges.

Despite its importance, the term “execute the laws” itself is not defined in statute and remains ambiguous. No case law squarely addresses whether immigration judges adjudicating immigration cases are “executing the law.” Nevertheless, even under a narrow reading of that term, JAGs serving as immigration judges would clearly “execute the law.”

Several decades ago, in United States v. Yunis, the Court of Appeals for the District of Columbia endorsed a leading jurisprudential test for analyzing PCA violations: the PCA prohibits activities that “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.” The lower court in Yunis provided a more detailed analysis of those terms that the appeals court effectively ratified, defining a regulatory power as one which “controls or directs,” a proscriptive power as one that “prohibits or condemns,” and a compulsory force as one which “exerts some coercive force.” As a result, all of those military actions are prohibited under the PCA as applied to civilians.

Although immigration judges are, by regulation, impartial arbiters of the law, both temporary and permanent immigration judges carry out activities that meet the Yunis standard. Immigration judges decide whether an immigrant has the legal right to remain in the United States or will be deported, and whether to keep someone in custody or release them from detention. While the JAGs serving as immigration judges may be in civilian attire and judicial robes, they are issuing rulings that effectively control the immigrant’s future in the United States, prohibit the immigrant from being released from custody, and coerce the immigrant through deportation orders. Immigration judges don’t just apply the law—they execute it. When a judge orders deportation, that’s not interpretation, it’s compulsion backed by state power. Under the Yunis precedent, that’s precisely what the PCA prohibits.

In August of 1986, then-Deputy Assistant Attorney General of the Office of Legal Counsel (OLC) Samuel Alito analyzed a proposal to assign Army JAGs to serve as Special U.S. Attorneys (SAUSAs) in the DOJ. In considering whether the assignments violated the PCA, Alito broadly interpreted “execution” of the law to encompass “the litigation of civil and criminal cases.” Immigration adjudication and decision-making¾which result in restrictions on liberty and the enforcement of applicable immigration laws that could lead to expulsion from the nation¾fall within this conception. In fact, Alito assumed without further analysis that the litigation of civil and criminal cases constituted “execution” of the law within the meaning of the PCA.

As Alito put it, the PCA was “intended to prevent persons subject to military law and discipline from directing commands to ordinary citizens.” Military lawyers serving as temporary immigration judges would have the ability to wield significant control over the lives of civilians, a power the PCA does not permit.

No Express Authorization

The only exception to the PCA’s prohibition on soldiers serving as civilian law enforcement is where the Constitution or Congress has “expressly authorized” them to do so. The Constitution does not include any express authorization that allows military officers to serve in civilian roles. There are many statutory exceptions to the PCA, but none expressly authorize the use of military lawyers as immigration judges in the DOJ.

The term “expressly authorized” is significant. Its inclusion was debated and discussed for several years before the PCA’s passage in 1878. The House Manager at the time said that inclusion of the word “expressly” was critical to prevent the use of the military where authority is only implied. During the back and forth between the Senate and the House on the PCA’s text, “expressly” was added in the final version, thus “restoring to this bill the principle for which we have contended so long, and which is so vital to secure the rights and liberties of the people.”

The Pentagon itself does not identify any exceptions that would permit assignment of JAGs as immigration judges. Its 2019 instruction governing interpretation of the PCA, titled “Defense Support of Civilian Law Enforcement Agencies,” lists 20 specific exceptions—including assignments as specific as the enforcement of fishery laws—but does not include any exceptions that even arguably include immigration adjudications. Even the so-called assignment statutes—10 USC §§ 806 and 973(b)(2)(B) – which allow military officers to support certain civil functions — are not considered by the military to be exceptions to the PCA. To be sure, the Trump administration could change how it interprets existing statutes and regulations, but such an interpretation is reviewable under the Administrative Procedure Act, and the court can set aside arbitrary or capricious changes that lack a reasoned explanation.

The omission of any reference to assignments to serve as immigration judges is evidence that the Deapartment of Defense does not consider such assignments to be exceptions to the PCA. If DOD doesn’t believe these are express exceptions, why should courts? Indeed, a court reviewing DOD’s newfound interpretation of a PCA exception is likely to apply administrative law principles to scrutinize this 180-degree interpretive turn, reviewing “the validity of [DOD’s] reasoning” and identifying its lack of “consistency with earlier and later pronouncements.”

Of note, in his 1986 OLC memo, Alito did not address whether the Title 10 provisions were an express exception to the PCA, but noted that the legality of using JAGs to carry out certain litigating functions at DOJ depended on certain factual circumstances. According to Alito, serious questions would arise under the PCA if, while assigned to DOJ, the military lawyers functioned under their usual military chain of command, were assigned on a part-time basis, or performed civilian functions along with their regularly assigned military duties (by working at a military installation, for example). Alito wrote that to minimize the risk of contravening the PCA, “military lawyers who are not functioning in an entirely civilian environment should not be used to perform any prosecutorial function that involves direct contact with civilians in a law enforcement context, such as the interrogation of witnesses or a personal appearance in court.”

In sum, the term “expressly” was fought over and included in the PCA’s text as a means to combat future attempts to allow the military to perform civil functions with only implied authority. The Pentagon has never interpreted the assignment statutes as express authorization to circumvent PCA restrictions, nor has it identified any other applicable exception.

To be sure, the Administration may attempt to avoid PCA prohibitions by detailing individual military members on a full-time basis to the Department of Justice under the supervision of civilian personnel—factors pointed out by Alito as a way to potentially sidestep the PCA in the context of assigning JAGs as Special Assistant U.S. Attorneys (SAUSAs). These factors were also highlighted in a just-released OLC memo providing legal cover for the detail.  But Alito made clear that such details should be scrutinized to determine whether the JAGs are truly independent from their military command, and they would have to be funded by DOJ – a significant constraint because the July funding bill capped funding at 800 judges total, and there are 685 on the bench today. How such an approach might apply to Immigration Judges is a novel question of law, and the exact details on how, exactly, the JAGs will be assigned, funded, and integrated into the Department of Justice have yet to be released.

Due Process Concerns

When JAGs are assigned as immigration judges, they remain subject to military law and discipline via the Uniform Code of Military Justice (UCMJ). Unlike military judges—who enjoy statutory insulation from command influence under Articles 26 & 37—JAGs assigned as immigration judges lack protections to shield their decisions from outside influence, thus creating an inherent conflict between judicial independence and command obedience.

First, under Article 26 of the UCMJ, only the senior Judge Advocates General of the Military Services may supervise military judges, and no one else may participate in their professional evaluation of their judicial performance. This carveout for military judges helps ensure judicial independence, insulating JAGs from external influence or pressure to decide a specific way. No such protection exists for JAGs serving as immigration judges, leaving them open to outside political pressure to support the administration’s mass deportation agenda. For example, JAGs serving as immigration judges lack any such protections and may well report to civilian bosses. These civilian bosses will have input on their professional evaluations. Imagine a JAG serving as an immigration judge who issues opinions that run contrary to the administration’s political agenda, angering his or her civilian bosses. A negative evaluation can sink an otherwise promising military career, creating an unworkable conflict of interest as JAGs attempt to balance career progression with commitment to due process and the rule of law.

Second, Article 37 of the UCMJ prohibits unlawful command influence of military justice proceedings, thereby ensuring independence and impartiality through the court-martial. Again, no statutory carveout exists to help insulate JAGs serving as immigration judges. Although unlawful command influence protections would not apply in immigration court, the threat of placing the thumb on the scale of deportation from senior officials is real and deeply problematic. Orders from their chain of command would have a high presumption of lawfulness¾only “manifestly illegal” orders must be disobeyed.

In light of the Trump administration’s focus on immigration enforcement and the clear executive branch preference to expedite deportation proceedings, JAGs serving as immigration judges are likely to feel outside pressure to favor the government’s view. They may even receive express pressure to rule a certain way, raising significant questions as to whether immigrants appearing before them will receive a fair hearing consistent with their Due Process rights.

Even the appearance of partiality could have significant consequences. The Court of Appeals for the District of Columbia vacated more than two years of orders in a capital case against a man charged with orchestrating a series of bombing plots for al-Qaeda because the military judge overseeing the case failed to disclose that he had applied for an immigration position at the DOJ. The court found that the application to the DOJ, while serving as a military judge, created a “disqualifying appearance of partiality.” The same could happen here, undermining the administration’s goal of reaching finality.

Sidelining JAGs From Their First Priority

Finally, detailing JAGs as immigration judges takes those lawyers away from critical military work while demanding familiarity with the complex legal field of immigration law.

Since Trump took office in January, JAGs who have served for decades through different administrations, have witnessed their most senior uniformed leaders fired. Meanwhile, in the Defense Department, military lawyers are being sidelined from providing legal advice on operational decisions. The loss of 600 JAGs to immigration courts would be a stunning loss of expertise at a time when military legal advice is vital. With fewer JAGs, there is less candid and non-partisan legal advice, creating an environment that allows legally suspect behavior.

Second, assigning JAGs without immigration experience to serve as immigration judges is unfair to both the JAGs and to the immigrants appearing before the court. Immigration law is a notoriously complex, nuanced, and sophisticated area of law. Although JAGs have expertise in military justice, operational law, and laws of war, immigration law has never been a core specialty or practice area for JAGs. Many JAGs assigned as immigration judges will be reading immigration statutes, regulations, and case law for the first time. While we do not doubt that these military attorneys will do their very best despite the lack of subject matter expertise, immigrants before the court are entitled to competent judges who are well-versed in immigration law.

Conclusion

The unprecedented assignment of “soldiers in robes” to oversee civilian courts blurs the line between military and civilian functions. This intrusion into civilian affairs undermines the public’s trust and confidence in the military¾a hard-earned trust that has been slowly rebuilt since the Vietnam War.

The stakes could not be higher. After all, opposition to military entanglements in civilian affairs was a bedrock principle to the United States’ founding, with the Declaration of Independence lamenting the king’s willingness to “render the Military independent of and superior to the Civil Power.”

This is not about the qualifications or credentials of JAGs. We know that most military lawyers – like most immigration judges – will do their best to remain impartial and ethical under trying circumstances, even without sufficient training and legal protections. But these moves create unnecessary risk.

DOJ should return to its 2014 requirements for temporary immigration judges and require immigration or adjudicatory experience – or both – for temporary immigration judges. To ensure due process for immigrants appearing in immigration court and to protect JAGs from prosecution under the PCA, DOJ should immediately take active duty JAGs off the immigration bench. Finally, the courts must resist any attempt to normalize military participation in civilian adjudications. Preserving this line is essential not only for legal compliance but for maintaining the trust that underpins a healthy civil-military balance.

The post Soldiers in Robes: Why Military Lawyers Can Not and Should Not Serve as Immigration Judges appeared first on Just Security.

Since early September, the U.S. military has killed at least 32 people in seven reported boat strikes in the Caribbean and five in two strikes in the Pacific—the first time in history that, as a matter of presidential policy, lethal force was used against individuals exclusively for the act of trafficking drugs. The administration’s actions reveal a troubling expansion of claimed executive power and raise profound questions about the legal authority underpinning the attacks. Indeed, the Commander of SOUTHCOM is reportedly stepping down after expressing concern about the legality of these operations. These strikes also appear to represent a historic collapse of guardrails that once helped reduce the risk of unlawful military operations: the independence of lawyers within the Department of Defense and the deference accorded to their advice.

We, the authors, are former executive branch lawyers. Mark, a law professor at Emory University, is a former Navy tactical jet aviator and Navy lawyer (Judge Advocate General’s Corps or “JAG”), and Sarah, a senior analyst at the International Crisis Group, is a former civilian attorney who served in the Department of Defense (DoD) Office of General Counsel. Based on our experience and expertise on the relevant legal issues raised by the strikes, we are deeply troubled by what they might reflect about the current constraints on lawyering within the DoD and the executive branch more broadly.

Many former government lawyers—including Mark—have already offered detailed  analysis of the laws applicable to the strikes. A striking number of former government attorneys who have served both Republican and Democratic administrations agree that a red line has been crossed and that the garbled legal justifications provided by the administration are inconsistent with the facts and the law. Based on reporting by the Wall Street Journal and CNN, there are lawyers currently serving inside DoD who also agree and have tried to push back.

Even if we take the administration’s facts and statements at face value, despite credible reporting to refute them, the only conclusion we can reach is that these strikes lack a legal basis. Although reports indicate that the Department of Justice’s Office of Legal Counsel (OLC) has issued a legal opinion justifying the strikes, no such analysis has been shared with the public. This lack of transparency is a serious problem. There is precedent for the executive branch to be forthcoming with its legal rationale, including for military activity. After other contentious military operations—such as in Libya in 2011 and Syria in 2018—OLC eventually released its legal opinions (the Libya opinion was released within two weeks). While those opinions and their underlying legal reasoning were themselves debated, their release compelled the executive branch to “show their homework” and subjected its rationale to public scrutiny. The OLC memo justifying the Caribbean strikes should be released without delay.

What’s more, the current administration’s approach has been to centralize legal authority, discourage dissent, and marginalize career legal professionals—including military attorneys with deep operational law expertise. Reports suggest that Combatant Command and Pentagon lawyers were excluded from meaningful review of the Caribbean strikes, which, if true, would be a troubling departure from long-established practice. This sidelining reflects a broader pattern that predates the Trump Administration but has only accelerated: a “post hoc” approach to national security lawyering—where legal reasoning is developed after operational decisions are made, often without the benefit of full interagency legal review.

Career government lawyers normally provide thorough legal analysis of executive branch national security actions. Without the input of legal subject matter experts, the political appointees who tend not to have the same expertise are more likely to get it wrong—or worse, willingly bend the applicable law “beyond recognition” to achieve political ends. The experts include Department of Defense civilian and military lawyers, including those assigned at the highest command levels. When they are marginalized or fear that their careers depend on aligning with political preferences rather than professional ethics, the guardrails that constrain the use of force begin to crumble.

Below, we offer a high-level description of the typical process of advising on strikes like these. We then analyze why that process might not be working now. Though we do not claim to know what any government civilian attorney or JAG is facing in this moment, we offer some insight into just how high the stakes are for many of them. We urge Congress to do more to reinforce the guardrails that are vital to the legitimacy of national security decision-making.

How Civilian and Military Lawyers Advise on DoD Operations

Ensuring U.S. military operations comply with the law is largely dependent on following established legal processes. Time-honored channels of review help presidents, commanders, and troops guard against illegality and ensure more successful operations that can withstand public scrutiny. Modern instances in which regular processes were not followed have led to flawed legal analysis that put U.S. servicemembers at risk of criminal liability and stained the country’s reputation. In light of the widespread view that these strikes are illegal, we can only conclude that these channels of review are no longer functioning as intended.

When a president intends to use military action against a certain person or group, they typically request a “concept of operations” or CONOPS from the relevant Combatant Command. This CONOPS describes the mission, underlying objective, resources, capabilities, and forces to be utilized. Depending on the complexity of the operation, multiple legal reviews may be necessary. Historically, the National Security Council (NSC) Office of the Legal Adviser has brought together relevant lawyers to review such operational plans. The NSC interagency lawyers’ group, known as such since the George H.W. Bush administration but with its origins dating back to the Kennedy administration, generally helps to ensure that DoD operations have a firm legal foundation and that necessary coordination with other relevant agencies can be undertaken before the operations take place.

Those in the working group normally include the most senior lawyers from the NSC, DoD Office of General Counsel, the Legal Counsel to the Chairman of the Joint Chiefs of Staff, the Department of State, the Department of Justice, the Office of the Director of National Intelligence, and the CIA. These counselors—relying heavily on the expertise of the career lawyers in their offices and career lawyers and JAGs detailed to the NSC—advise on a range of legal matters. First and foremost, they ensure there is a sound legal basis under both domestic and international law for the operation, and that any human rights law, law of armed conflict (LOAC), or other applicable legal obligations (such as domestic law reporting requirements) are met. This generally means assessing the international law governing the resort to force (or the jus ad bellum) – which requires high-level decisions that are not delegated to the operational level: Is there a valid claim of national or collective self-defense? If so, would the proposed operations be necessary and proportionate? It also means assessing whether the president has statutory authority from Congress or unilateral authority under Article. II of the Constitution to undertake the operations.

Different agency lawyers may take the lead on analyzing these key issues, but coordination among them is ensured through this process. For example, the State Department generally takes a leading role in analyzing international law issues (given its deep and broad expertise in international law) and, in close coordination with DoD General Counsel, war powers issues, and will generally have a leading role in notifying both Congress and U.S. partners and allies as needed. The Intelligence Community, which may have equities in the operation, is also often crucial in these discussions. And the Department of Justice will likely take the lead in analyzing constitutional law questions. With the expertise of each of these agencies at the table, key legal interpretation decisions, memorialization of those decisions, planning for notifications required by law (or otherwise), and deconfliction across agencies will put the operations on the strongest possible footing.

The lawyers’ group review may also include certain ad hoc action items when a CONOPS presents novel legal issues or the adoption of a new U.S. government legal position.

JAGs—many of whom specialize in the law of armed conflict and operational law—play an important role in ensuring that all orders comply with both domestic and international law, providing input throughout the military planning process. The service they provide senior commanders in charge of the operation is so critical that congressional statutes prohibit any military or civilian member in the Department of Defense from interfering in their legal advice. Military legal reviews are critical to fleshing out any legal concerns before operations are authorized and before and after orders are issued down the chain of command. Even for fast-moving and quickly evolving operations, JAGs in the relevant Combatant Commands have in recent decades been able to consult closely with lawyers in the Pentagon to ensure certain any use of force has a sound legal basis and is consistent with the parameters of what was authorized in Washington. Kinetic operations that authorize lethal force are, for good reason, closely scrutinized by JAGs.

Given the strong views of the larger legal community, it’s hard to imagine that civilian career attorneys and JAGs would have been comfortable with endorsing the Caribbean strikes. If they were consulted, was their legal advice ignored during the process of CONOPS development and the ultimate approval process? If they were not consulted, why would administration officials have sidelined their expertise? Were questions about the underlying legality of the operation raised by component legal counsel at relevant command levels, including the Combatant Command and their subordinate command levels? If so, were those DoD lawyers and JAGs disregarded? Under what reasoning?

While the internal legal review system is by no means foolproof, and we do not know whether the relevant military and civilian career attorneys participated in the planning for these strikes, the public actions taken by this administration offer some hints as to possible process fouls.

Centralization and Apparent Suppression of Legal Advice

Several policies adopted and actions taken by the administration demonstrate its preference for siloed decision-making. Not only do such policies, practices, and processes make it easy to avoid unwanted legal advice, they also increase the likelihood that attorneys who raise legal objections are intentionally sidelined.

First, on February 18, President Trump signed Executive Order (EO) 14215, “Ensuring Accountability for All Agencies.” Section 7 says:

“The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law…” (emphasis added)

The EO appears to require executive branch lawyers to never offer any interpretation that contravenes the President or Attorney General, even if they determine the President and Attorney General’s interpretation to be wrong, i.e., unlawful. Not only does such a mandate on government lawyers directly conflict with their ethical obligation to exercise independent judgment and offer candid advice, as well as their oath of office to uphold the Constitution, it also appears intended to silence attorneys who would otherwise speak out against what they determine to be illegality coming from the White House or the Department of Justice. By declaring that executive branch lawyers must conform to the legal interpretations of the President and Attorney General, the order effectively eliminates the ability of counsels—including those at the Department of Defense—to provide independent assessments. In practice, we worry that this EO further blurs the line between law and politics.

Second, Secretary of Defense Pete Hegseth has taken several actions that appear designed to suppress legal dissent. Days after the executive order was issued, he fired the Judge Advocates General (TJAGs) of the Army and Air Force (The Navy TJAG position, vacated in late 2024, already had been filled by an acting officer.) Recent reporting by CNN describes how the Army TJAG had raised concerns about the legality of some Trump policies before being fired. CNN describes how he was sidelined by Charles Young, the acting General Counsel at the time, now nominated to be the Army General Counsel. Shortly after firing the TJAGs, on cable news, Hegseth described JAGs as “roadblocks” (he had already lobbed a gross insult at them in his book). He then commissioned his personal lawyer to overhaul the way JAGs advise on the law of war and prosecute war crimes. At the time, we underscored the extraordinary nature of these firings, how they likely interfered with the statutory prohibition on interfering with the ability of JAGs to give independent advice, and how they might impact any future illegal orders.

And third, the administration has through acts of retribution, sent a chilling signal toward anyone who might potentially offer diverging views (e.g., the demotion of DOJ attorneys for working on cases the president disagreed with).

Presidential Power Emboldened by the Supreme Court’s Immunity Expansion

The administration could be emboldened to take these actions due to the Supreme Court’s decision in Trump v. United States, which placed extraordinary burdens on civilian and military officials and the lawyers advising them. In its 2024 decision, the Court held that the president has absolute immunity for acts that fall within his “conclusive and preclusive” authority (which arguably includes commander-in-chief powers) and presumptive immunity for all other official acts. As retired Air Force Major General Steven Lepper and Eugene Fidell explain here, while this kind of immunity disincentivizes presidential compliance with the law, questions remain about the precise scope of whether that immunity applies to people downstream from presidential decision-making. Ironically, this shifting and uncertain legal terrain has increased the importance of legal advice because commanders and troops will need JAGs to help them address the likely increase in orders that skate up to or past the legal line.

The Stakes of Sidelining JAGs and Career National Security Attorneys

 The above illustrates just how significant the pressure that military and civilian lawyers are under in this administration. If they raise objections to what they determine to be clearly unlawful actions, they could face personal and extreme repercussions, including demotion, firing, or, for military lawyers and the commanders they are advising, court-martial (even if those measures would be without merit or unlawful). These are challenges unprecedented in modern history for the military and legal professions in the United States.

History has demonstrated that sidelining JAGs and DoD civilian lawyers in operational matters or preventing them from giving candid advice can lead to disastrous results. The decision to ignore JAGs and the Navy General Counsel during the early 2000s “torture memo” debates was a grave and short-sighted mistake that harmed U.S. credibility domestically and abroad for decades. Not only did it cause lasting damage to the United States’ reputation and moral authority, but it also led to years of costly litigation and internal tensions. Congress—a very different body today than at that time—responded quickly by bolstering the role of JAGs, amending several statutes to prohibit interference with the ability of JAGs to provide independent legal advice, and elevating the rank of the highest JAGs of the Army, Navy, and Air Force from two to three stars.

As underscored by Professor Dan Maurer and Professor Geoffrey Corn, both of whom are former JAGs, the sidelining of military legal advice does not bode well for the legitimacy of U.S. military operations. By excluding DoD’s career legal professionals, including JAGs, from operational planning, the administration undermines a core strength of U.S. national security law: the tradition of principled, independent legal advice for the armed forces. That tradition is essential for maintaining trust within the military’s ranks and being worthy of the trust and confidence of the people of the United States.

Congress has an important role to play in helping to preserve long-standing legal guardrails. That includes requiring—as a matter of law, instead of merely authorizing—that all TJAG positions be at the three-star level so that their seniority ensures they are in the room for the most sensitive discussions. It should also include pushing back forcefully on illegal orders, continuing to request the release of the OLC memo from the Department of Justice, and raising awareness of how these strikes create a high risk of escalation in the region that could have far-reaching consequences in the United States and abroad, especially given the apparent absence of legal limits. And Congress must make clear that the president cannot treat criminal suspects as combatants. On a bipartisan basis, legislators should pass a joint resolution under the War Powers Act barring President Trump from using military force against boats in the Caribbean Sea—reaffirming that these strikes have no basis in the law. At least two Republican Senators (Rand Paul and Lisa Murkowski) have already supported such a measure, but it failed in the Senate without more Republican votes.

In sum, whatever is happening in the executive branch is likely not going to be remedied by the currently serving civilian and military attorneys alone. It is up to Congress and the public to do more to address the unprecedented, dangerous pressures imposed on public servants and defend the guardrails that protect both U.S. forces and U.S. democracy.

The post The Caribbean Strikes and the Collapse of Legal Oversight in U.S. Military Operations appeared first on Just Security.

The Trump administration’s description of the boat is not much different from any number of drug vessels and fast boats that attempt to evade U.S. authorities. As a former naval line officer and JAG who has both advised on the law of naval operations and witnessed firsthand how the Navy works with the Coast Guard to interdict suspected drug vessels, I can attest that the United States has longstanding law enforcement rules to deal with these situations. These rules have been in place for decades. Typically, such a boat would be intercepted and boarded, the drugs confiscated, and the people on board arrested and prosecuted. Longstanding law enforcement statutes and rules dictate that the Coast Guard takes the lead in maritime law enforcement operations, using well-established procedures to halt any suspected drug vessel. If the vessel refuses to comply, the Coast Guard may resort to firing warning shots and disabling fire. None of these escalation of force procedures were followed here—why?

This attack appears to have been led by U.S. special operations forces—not the U.S. Coast Guard. Rather than follow standard military procedures, the Defense Department, acting on the president’s orders, used an MQ-9 Reaper drone, run by special operators, or a military helicopter, to carry out the attack, killing everyone on board.

Remarkably, Secretary of State Marco Rubio told reporters in Mexico on Wednesday that, “Instead of interdicting it, on the president’s orders, we blew it up. And it’ll happen again. Maybe it is happening right now.” The decision to destroy and not interdict the alleged drug vessel, killing all civilians onboard, raises a host of questions and concerns. Brian Finucane has already done an expert job in outlining the core legal issues. Here, I want to explore the key operational concerns for the U.S. military, especially if these deadly strikes are going to continue, as the Trump administration promises.

Why Wasn’t the Coast Guard Involved?

As a legal matter, the Coast Guard is the primary maritime law enforcement agency of the United States, with broad authorities under the Maritime Drug Law Enforcement Act and the Drug Trafficking Vessel Interdiction Act. Indeed, for the past several decades, the U.S. Coast Guard and other law enforcement agencies have taken the lead in combating maritime drug smuggling, a persistent problem in the Caribbean. The Navy and other military forces assist the Coast Guard in detecting and monitoring drug vessels headed to the United States. Although not perfect, this strategy allows the U.S. military to prioritize the capabilities it needs to fight wars, while tapping into the Coast Guard’s deep law enforcement experience.

The military’s supporting role in counternarcotics missions makes sense: the Coast Guard has broad legal authorities under U.S. domestic law as well as the requisite expertise in the nuances of evidence collection and boarding boats to lead the maritime interdiction mission. The U.S. Navy and other military assets have historically played a critical role in assisting with detection and monitoring drug activity, and they certainly have not preemptively attacked alleged drug vessels.

Indeed, under its broad statutory authorities under Title 14, the Coast Guard—but not the Navy or other military services—possesses the legal authority to search, seize property, and arrest persons suspected of violating U.S. law upon the high seas and waters over which the United States has jurisdiction. And these law enforcement boarding teams follow strict rules for use of force, relying on warning and disabling shots. Even these non-deadly actions must take place under strict conditions with higher-level approval.

Detailed Coast Guard instructions, as well as guidance found in the military’s law of naval operations, prescribe in great detail the use of force policy for Coast Guard personnel when conducting counterdrug operations. The use of force measures include when warning shots and disabling fire are authorized.

First, warning shots can be lawfully employed if a suspected drug vessel fails to stop after calls to do so go unheeded. Warning shots, which do not constitute a use of force under international law, can be incredibly effective in a dynamic maritime environment. Warning shots send a forceful signal as part of a maritime interdiction to stop or maneuver in a particular manner or risk the employment of disabling fire or more severe measures.

Second, if warning shots and repeated calls to stop the vessel are ignored, the Coast Guard can employ use of force measures to include disabling fire. Disabling fire targets a noncompliant vessel’s rudder or propulsion in an effort to halt the vessel before boarding. These sensible escalation of force measures, which are based on a law enforcement legal paradigm, have long been employed. Indeed, it has been Coast Guard policy for decades that commanders use warning shots as a predicate to disabling fire, and certainly before direct, kinetic action that kills people or destroys property.

There is still a lot unknown about the attack, but it appears that no warning or disabling shots were used before destroying the boat. Why weren’t these tried and tested escalation of force tactics and procedures—which balance mission accomplishment with the unnecessary loss of life—employed before 11 people were killed?

I can speak from personal experience about the effectiveness of the Coast Guard’s longstanding approach. I was a junior naval officer operating on a Navy warship in the 1990s that deployed with an embarked Coast Guard Law Enforcement Detachment (LEDET) team onboard. Upon suspicion of a suspected drug vessel—and consistent with international law and domestic legal authorities—the LEDET would spring into action to stop, board, search, and take follow-on law enforcement actions. Throughout the boarding process, the Navy warship actually shifted tactical control to the Coast Guard unit while the LEDET establishes communications with law enforcement entities. To signal the shift in tactical control, the Navy warship will fly the U.S. Coast Guard ensign until the completion of the operation.

In my experience, the Navy-Coast Guard team’s involvement in counterdrug operations was incredibly effective. The Coast Guard could tap into the Navy’s detection and monitoring assets while taking the lead when needed to interdict the suspected drug vessel. Why such a time-tested strategy that takes advantage of the Coast Guard’s deep law enforcement expertise was not employed requires answers from this administration.

Today, there are reportedly a growing number of military assets in the Caribbean region, including at least three guided missile destroyers, at least one submarine, and both the Iwo Jima Amphibious Ready Group (composed of three warships) as well as the 22^nd Marine Expeditionary Unit with 2,220 Marines. There is no evidence or reporting that the U.S. Coast Guard is being deployed alongside this growing flotilla, providing further evidence that Trump views the confrontation with Venezuelan President Nicolas Maduro as something different in kind than a law enforcement mission aimed at interdicting drugs.

Erasing the Lines Between Law Enforcement and Military Operations

Because the strike against the boat clearly took place outside of an armed conflict, despite the administration’s rhetoric seemingly intended to blur those lines, the attack could only be legally justified in a situation of self-defense involving an immediate threat of serious injury or loss of life to the U.S., its forces, or its citizens. The administration has provided no evidence of a threat meeting this well-established legal standard. To the contrary, the attack appears to have been a preemptive strike and not a self-defense response to a hostile act or demonstrated hostile intent. To be clear, drug trafficking and the opioid crisis have had deadly consequences for Americans, with tens of thousands of fatal fentanyl overdoses every year. But that is not the standard for launching a lethal military strike.

Taking a preemptive lethal strike against an alleged drug boat continues the White House’s effort to blur the lines between law enforcement and the U.S. military’s missions and authorities. The administration has justified the strike by describing it as “against a designated terrorist organization . . . in defense of U.S. national interests and in the collective self-defense of other nations.” This vague language—which leans heavily on labeling Tren de Aragua a terrorist group akin to al Qaeda— is rooted in wartime, not law enforcement rules. Labeling a drug cartel a terrorist organization and killing 11 members on a vessel, which may or may not have been destined for the United States, under the guise of an amorphous “national interest” is an extraordinary and unprecedented assertion of presidential power.

Trump has also used this language, stating that the attacks were against the “Tren de Aragua Narcoterrorists,” and that the attack “occurred while the terrorists were at sea in international waters transporting illegal narcotics, heading to the United States.” Although the president stated that the drugs were heading to the United States, Secretary of State Rubio initially reported that the drug vessel itself was not. According to Rubio, the vessel was traveling “to Trinidad or some other country in the Caribbean.” Trinidad is over 1,600 miles from Miami, the nearest major U.S. city. As of this writing, we do not know definitively the true destination of the vessel, its flag state, nor its origin.

The administration previously designated the Venezuelan Tren de Aragua gang, and a different Venezuelan-based group, Cartel do los Sole, as Foreign Terrorist Organizations (FTOs) and Specially Designated Global Terrorists (SDGTs). For good measure, the administration also labeled Maduro a terrorist cartel leader. While none of these designations change the fact that the United States is not in an armed conflict with any cartel or with Venezuela, or facing the threat of an armed attack from these groups, their designations seem to have opened the door for the U.S. military to play a bigger role in drug interdiction, traditionally the realm of law enforcement. But as Tess Bridgeman, Rebecca Ingber, and Scott Roehm have noted in these pages, designating an organization a terrorist group does not by itself legally justify the use of force against it. To be sure, presidents can take preemptive action against terrorist organizations when necessary to repel sudden attacks or an imminent armed attack. Yet the administration has offered no evidence that this week’s strike met this high standard.

The FTO designation is an attempt to shift the legal paradigm from law enforcement—to be clear, the only paradigm that lawfully applies based on the facts presented to the American public—to national security and military authorities, where more permissive combat rules of engagement would apply. If that is what is occurring—and we have yet to hear otherwise—combat rules of engagement authorize the use of force against “[a]ny civilian, paramilitary or military force or terrorist(s) that has been declared hostile by appropriate US authority.” Once a force is declared hostile, “U.S. forces need not observe a hostile act or demonstrated hostile intent before engaging the declared hostile force.” Have these Venezuelan groups been declared hostile? If so, why? And under whose authority?

International humanitarian law—and the more permissive combat rules of engagement that seem to have been applied against the drug vessel—only applies in either an international or non-international armed conflict. We know that the president signed a still-secret directive in July instructing the Pentagon to use military force against some Latin American drug cartels, but the scope of the claimed authority remains unclear. The Department of Defense’s own law of war manual states that individuals who are formally or functionally part of a non-state armed group that is engaged in hostilities may be made the object of attack following identification. To be sure, the military always preserves the inherent right to use force in self-defense—this would authorize the use of force to include deadly force against the vessel. But no evidence has been produced that the attack was in self-defense – indeed, Rubio has stated the opposite when he made clear that the boat could have been interdicted but was destroyed instead.

The Role of Lawyers

Finally, I have questions about how legal advice—particularly from military JAGs and operational law attorneys with deep expertise in this area—was given in this scenario. In Executive Order 14215, titled “Ensuring Accountability for All Agencies,” Trump addressed the rules of conduct guiding federal interpretation of the law. A section titled “Rules of Conduct Guiding Federal Employees’ Interpretation of the Law” states:

The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law . . .

Military JAG attorneys have the statutory authority and responsibility to provide independent legal advice without interference. Trump’s EO attempts to suggest otherwise. For the attack on the drug vessel, what was the controlling legal advice provided, and who wrote the legal opinion? What was the military advice provided on the legality of this operation, and was it dismissed by higher officials in the Department of Justice?

Questions the U.S. Defense Department Should Answer 

In sum, without further explanation and clearer evidence of the threat these groups pose to the American people, it is an enormous leap to portray these drug traffickers as organized terrorist organizations akin to al-Qaeda. Nor does labeling these groups “terrorists” alone authorize the use of military force, or trigger the military rules of engagement that apply in armed conflict. But it appears to be an attempt to do just that. Never before has drug trafficking been treated as terrorism, and there is a danger that with this rhetorical move, the Trump administration is attempting to open a new “forever war” against an amorphous set of actors who are not in reality engaged in hostilities against the United States. As Brian Finucane stated, the use of lethal force in this attack appears gratuitous. And it raises a broader question: what does the United States lose as a nation when the use of force is justified with such unsound legal reasoning and without a clearer explanation? There are more questions than answers about the legality of this attack, the vessel’s flag, its origin and destination, why time-tested escalation of force measures were ignored, who provided the legal advice over this operation, and what that legal advice articulated. These questions deserve clear, concrete, and specific answers from this Administration.

The post Using Labels, Not Law, to Justify Lethal Force: Inside the Venezuelan Boat Strike appeared first on Just Security.

Show Notes: 

• “Trump, the National Guard, and the District of Columbia” by Mark Nevitt 
• “One Week of Trump’s DC Takeover Attempt: An analysis of the president’s use of military, police, and security services in the nation’s capital” by Joseph Nunn and Spencer Reynolds 
• “How to Truly Keep Washington, DC Safe: President Trump’s militarized approach undercuts what’s been working” by Donell Harvin 
• Just Security Podcast: What Just Happened – Federalization of Law Enforcement in Washington DC with David Aaron, Carrie Cordero, and Donell Harvin

The post The Just Security Podcast: What Just Happened – Federalization of DC Law Enforcement, Legal Authorities and Updates appeared first on Just Security.

What are the relevant legal authorities underpinning the National Guard deployments?

There are two distinct authorities relevant for understanding the activation and deployment of the D.C. National Guard and the three out-of-state National Guard units to D.C.

The D.C. National Guard operates under unique authorities that are distinct from the 53 other National Guard units (50 states and three territories). Unlike other states and territories whose National Guard falls under the respective state governor for day-to-day operations, the District of Columbia is neither a state nor a territory. The president—via the secretary of defense and secretary of the Army—has much broader authority over the D.C. National Guard. As Elizabeth Goitein of the Brennan Center notes, the D.C. National Guard is the only National Guard organization that is always under the president’s command. So, the president can take control of the D.C. National Guard without first invoking the Insurrection Act, a law passed in 1807 that allows the president to use the active-duty military to perform law enforcement duties inside the United States under certain circumstances. It serves as a statutory key for the president to unlock authorities over both the National Guard and Title 10 federal military forces.

Now, three outside National Guard units are also being deployed to the nation’s capital from West Virginia, Ohio, and South Carolina, for a total of four National Guard units in addition to federal law enforcement officers operating in D.C.

How will these myriad forces be coordinated and integrated? Unclear. Call it the fog of law enforcement.

Indeed, although it is unclear exactly what legal authority these three outside National Guard units are operating under, I suspect the Trump administration is running the same playbook it used in 2020. Then, Attorney General William Barr relied upon a somewhat untested legal authority— 32 USC 502(f)—to request outside National Guard units to protect federal assets in D.C. during protests over George Floyd’s death. This legal authority authorizes National Guard members to be called up to perform “other duty” in “support of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.” Congress amended 502(f) in the aftermath of Hurricane Katrina to simplify the process by which National Guard forces could perform disaster response and other domestic operational missions. There is no mention in the legislative history or statute’s text that Congress envisions 502(f) as a mechanism for the National Guard to conduct law enforcement in other jurisdictions.

Eleven governors ultimately provided the president with Guard troops in 2020. At the time, the invocation of 502(f) authority showcased the Trump administration’s willingness to pursue a maximalist legal approach and use untested and somewhat obscure legal tools to accomplish the president’s goals.

What if D.C. Mayor Muriel Bowser objects to the presence of outside National Guard units?

Once again, the summer of 2020 provides guidance. In a letter to Barr, Bowser requested that he “withdraw all extraordinary federal law enforcement and military presence from Washington, D.C.,” stating that these outside units were operating outside of clear chains of command, only leading to confusion.

In a move that surprised many, Barr pointed to statutory authority found at 32 U.S.C. § 502(f) as the legal basis for the deployment. The 4,000 National Guard forces stayed in D.C. for just one week in early June until Trump order them to withdraw. He said the city was now “under perfect control.” A federal court never ruled on the legality of using 502(f) to deploy National Guard forces in 2020, so there remains no legal precedent or guardrails to guide the current use of out-of-state Guard forces in D.C.

Outside the National Guard context, federal judges have shown an initial willingness to quickly address Trump’s decision to take over the D.C. police department to enforce federal immigration laws. Judge Ana Reyes recently ruled against the Trump administration’s appointment of a new head of the Metropolitan Police Authority, but she kept the door open for Trump to commandeer D.C. police officers to enforce immigration laws. It remains unclear how and whether the D.C. attorney general will respond to the deployment of outside National Guard units in the nation’s capital or if he’ll sue the president in federal court. But any forthcoming legal challenge will center on the scope of 502(f)’s authority—truly a case of first impression, meaning the courts have no established precedent to guide their decision.

What can the National Guard units do while in D.C.?

The key question is whether the Posse Comitatus Act (PCA)—an 1878 law that prohibits the military from “executing the laws” (i.e., searching, seizing, detaining, and arresting people)—applies to any National Guard unit operating in D.C. As a legal baseline, each member of the National Guard has the inherent right of self-defense. And normal PCA restrictions do not apply to National Guard forces operating under the command and control of their state governor, which is known as either a State Active Duty (SAD) or Title 32 status. Whether the Posse Comitatus Act applies in today’s current hybrid scenario, absent an Insurrection Act invocation, remains unclear.

For the D.C. National Guard, the Trump administration will undoubtedly point to a 1989 Office of Legal Counsel (OLC) opinion that opined that PCA restrictions do not apply to D.C. National Guard deployments when they support local drug enforcement efforts. Then, OLC pointed to a provision of D.C. Code where Congress authorized the commanding general of the D.C. National Guard to “order out any portion of the National Guard for such drills, inspections, parades, escort, or other duties, as he may deem proper.” OLC viewed the phrase “other duties, as he may deem proper” broadly, to encompass law enforcement operations. And a 1971 OLC Memo concluded that the use of troops to protect the functioning of the federal government was not prohibited by the PCA. Today’s Justice Department will likely analogize the existing immigration law enforcement mission to the 1989 drug enforcement activities to argue that the PCA does not apply. The Justice Department will highlight the open-ended language of “other duty,” D.C.’s unique status, and the government’s interest in a broadly asserted mission of protecting federal property and people.

For the three outside National Guard units, there is little relevant case law to help answer the legality of the deployment under 502 (f) and the subordinate question of how PCA restrictions would apply to the South Carolina, West Virginia, or Ohio Guard units, if at all. The president’s lawyers will likely argue that PCA restrictions do not apply as these units still fall within the state control of each unit’s respective governor—akin to how National Guard units were deployed around the nation in a Title 32 status during COVID-19. But, at that time, each state signed up to receive federal money and consented to activate and deploy their forces. If an out-of-state Guard unit were sent to another state against the wishes of the receiving state’s governor, this deployment would likely violate the receiving state’s sovereignty. As a federal enclave, D.C. is undoubtedly a unique jurisdiction, adding a layer of complexity to the legality of 502(f) and the Posse Comitatus Act analysis.

Yet again, 2020 offers a lesson in how the Trump administration might be thinking about the out-of-state Guard members’ deployment.

In his correspondence to Bowser in 2020, Barr did not squarely address the Posse Comitatus Act question. He instead highlighted that out-of-state Guard units had broad responsibilities and authorities for Guard forces to operate in the District. These authorities were further bolstered by a purported Article II “protective power” authority that Barr pointed to as a legal basis for the military to protect people, property, and federal functions. He stated:

Consistent with the President’s direction, the Secretary of Defense assigned to out-of-state National Guard personnel the mission of protecting federal functions, persons, and property within the District of Columbia. That mission includes the protection of federal properties from destruction or defacement . . . protection of federal officials, employees, and law enforcement personnel from harm or threat of bodily injury; and protection of federal functions, such as federal employees’ access to their workplaces, the free and safe movement of federal personnel throughout the city, and the continued operation of the U.S. mails.

As Chris Mirasola has written, the protective power theory creates “unresolved tensions” between the Posse Comitatus Act and the protective power. Purely defensive activities—such as protecting property and people are likely within the scope of the protective power, but the Ninth Circuit has held that activities that “pervade the activities of civilian officials violate the PCA.” At the end of the day, we lack a clear, bright-line test for determining what the PCA prohibits in every scenario—the Pentagon’s instruction for civilian law enforcement activities has numerous exceptions—a legal murkiness that the current administration is clearly interested in exploiting.

After outside National Guard units were deployed to D.C. in 2020, Joseph Nunn and Elizabeth Goitein of the Brennan Center, Steve Vladeck, and I all argued that Congress should revise and circumscribe the president’s authorities over the D.C. National Guard as well as under 32 USC 502 (f). Sadly, those recommendations did not succeed, despite several good-faith efforts to move them forward.

Will Trump invoke the Insurrection Act?

Trump has not yet invoked the Insurrection Act in deploying the military to Los Angeles earlier this year or to D.C. Should he choose to do so, Trump would have to satisfy threshold legal questions and follow required procedures—such as issuing an order for protesters to disperse—before tapping into Insurrection Act authorities. To be sure, the statutory triggers justifying an Insurrection Act invocation are also murky, based on antiquated language that is difficult to apply in modern times. And it is unlikely that a federal judge will be excited to second-guess a president’s decision-making—the key case opining on the president’s authority to invoke the Insurrection Act dates back to the early 1800s. Still, Trump would likely face political, if not legal, blowback for invoking the Insurrection Act—the last time a president invoked it over a governor’s objection occurred in Selma, Alabama, in 1965.

For now, I think Trump will not invoke the Insurrection Act if he can tap into other legal authorities to achieve his broad objectives. Both the military deployments to D.C. and California offer test cases for this legal strategy. For example, Trump used a novel statute, 10 USC § 12406, to effectively federalize the California National Guard in May. Whether that deployment violated the Posse Comitatus Act is now being litigated in Newson v. Trump in federal court in California. If Trump can rely upon novel legal authorities and win with them at federal court, there appears to be little need or legal justification for an Insurrection Act invocation.

What are the additional concerns of adding outside Guard units?

Integrating outside National Guard units into one coherent command is a difficult, if not impossible, task under the best of circumstances. What is unfolding in D.C. includes different units with different authorities, chains of command, and training. For some outside National Guard members, this may be the first time they have set foot in Washington, D.C. Questions arise, such as:

• What are the relevant rules for the use of force, and are they the same for each National Guard unit? Some National Guard forces are reportedly carrying firearms in D.C.—what rules govern their use?
• What kind of training for de-escalation and use of force has taken place? Each state and territory has different guidance on National Guard authorities on the use of force and when it is authorized—what rules apply in D.C.?
• What is the chain of command for the myriad forces engaged in law enforcement in D.C.?
• Under what law are the outside National Guards operating as part of their deployment? Ideally, each National Guard unit would be properly trained on the relevant D.C. law governing the deployment. Relevant state laws governing National Guard usage vary widely by state.

In sum, the Trump administration is pursuing a maximalist legal approach in deploying the military to achieve the president’s objectives in D.C., California, and potentially more states. The deployments to D.C. and California may well be a dry run for even greater reliance on the military to be deployed domestically. This aggressive legal approach takes advantage of four untested—and somewhat murky laws and doctrines—to include 502(f), 32 U.S.C. 12406, the protective power, and the unique role the D.C. National Guard plays in local law enforcement operations. Whether the maximalist approach prevails in federal court and provides the legal basis to achieve Trump’s objectives remains to be seen.

The post Trump, the National Guard, and the District of Columbia: What You Need to Know appeared first on Just Security.

California Governor Gavin Newsom objected to Trump’s deployment of the Guard, calling it “purposefully inflammatory” and adding that it “will only escalate tensions. . . [and] erode public trust.” After two days of stepped-up ICE raids in the Los Angeles area, including at a Home Depot parking lot in Paramount, California, demonstrations followed but local officials did not indicate that they needed federal assistance. The White House offered its own version of events. On Saturday, White House Press Secretary Karoline Leavitt described “violent mobs” and stated that the deployed troops would “address the lawlessness that has been allowed to fester.” By June 10, the White House had deployed 700 active-duty Marines and doubled the number of National Guard troops to 4,000. Trump also escalated his rhetoric, describing the protesters as “insurrectionists.”

It is more likely than not that the presence of the troops in the midst of ICE raids will raise, not lower, the risk of violence. The Trump administration surely knows that and may be intending for this modest Los Angeles deployment to fail, so that the administration can justify a more muscular invocation of the Insurrection Act, which would allow U.S. military personnel to perform law enforcement activities.

Trump’s actions in Los Angeles are part of a larger effort to militarize immigration enforcement. He has another, lesser-known, tool at his disposal that he can use to dramatically increase the number of Guard troops involved in these types of activities. Known as the 287(g) program, it delegates immigration enforcement to state and local law enforcement agencies. We worry that using 287 (g) agreements to enable National Guard units to enforce immigration laws creates enormous risk, undermines military readiness, and threatens the longstanding traditions of separating military functions from civil society. As one of us has written before, domestic use of the military is often fraught and is just as often corrosive to American democracy. Part-time soldiers police their neighbors, federal authority needlessly displaces state and local elected officials, and the relationship between the military and civil society becomes strained.

 The Trump Deportation Agenda

Trump began militarizing immigration enforcement on his first day in office, laying the groundwork for a confrontation between the military and the public. In his inauguration speech, Trump promised “to launch the largest deportation program of criminals in the history of America.” The president also stated that he would “send troops to the southern border to repel the disastrous invasion of our country. . . [because] as commander in chief I have no higher responsibility than to defend our country from threats and invasions.”

The president knows that absent a massive new congressional authorization and infusion of funds to Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP), the immigration infrastructure housed within the Department of Homeland Security (DHS) cannot carry out these plans. Indeed, the “One Big, Beautiful Bill Act” is meant to address this gap, providing $168 billion to immigration and border law enforcement. Thus, the president’s determination to rely on military support for immigration policy is an effort to close the gap in financial and human resources needed. Upon taking office, Trump also signed 10 executive orders on immigration and border enforcement that identified legal authorities that would purport to authorize a significant domestic deployment of the U.S. military for immigration purposes.

One executive order, Declaring A National Emergency at the Southern Border of the United States, allows the Defense Department to deploy troops to secure the border. Presidents George W. Bush and Barack Obama also deployed troops to the border, but Trump has specifically called the situation “a national emergency,” and has labeled the immigration flow an “invasion” that “represents a grave threat to our nation.” More important, the national emergency declaration unlocked funds for further construction of Trump’s border wall, repeating a step he took in 2019. And the order required a report from the Secretaries of Defense and Homeland Security within 90 days “regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”

A second executive order, Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States, assigned the military with the mission of “repelling the invasion and sealing the United States southern border from unlawful entry . . .” Trump assigned U.S. Northern Command with this mission, highlighting the military’s new role in preventing unlawful mass migration. Today, there are nearly 10,000 troops at the border, with DHS asking for 20,000 more to assist in deportation.

A third executive order, Protecting the American People Against Invasion, revoked several Biden administration immigration policies; instructed DHS, its immigration agencies, and the Justice Department to hasten the removal of undocumented persons and the civil and criminal prosecution of immigration law violators; and ordered DHS to “construct, operate, control, or use” sufficient removal detention facilities to implement administration immigration policies. Further, Trump called on the Secretary of Homeland Security to partner with state and local law enforcement on signing Section “287(g)” agreements to enforce federal immigration laws.

This last step may be the most powerful immigration enforcement tool that Trump has invoked. The so-called 287 (g) program, added to the Immigration and Naturalization Act in 1996, delegates immigration enforcement to state and local law enforcement agencies as prescribed in individual memorandums of agreement with ICE. In practice, they effectively deputize a nationwide immigration police force that considerably bolsters existing ICE resources.

Trump prioritized these agreements during his first term and has acted with much greater urgency to sign more of them during his second term. The new emphasis is paying off: there are 649 287(g) agreements across 40 states. While most 287 (g) agreements are with local police and sheriffs’ departments, state National Guards can also enter into these agreements. Indeed, there are 287(g) agreements with two state National Guards (Texas and Florida) as well as the Florida State Defense Force (military units that operate under the sole authority of the governor). The Texas National Guard has 19,000 members and Florida National Guard has 12,000. These 287 (g) agreements open the door to a massive expansion of military participation in immigration enforcement.

The History of Section 287 (g) Agreements

Of the 649 signed agreements to date, the overwhelming majority have been signed in the months since Trump took office this January. In a nutshell, Section 287 (g) agreements are poised to take center stage in enforcing federal immigration law wherever state and local officials and their laws and policies do not stand in the way of the federal intervention. Yet the agreements have hardly paved the way to better immigration enforcement.

Until earlier this year, there were two types of 287 agreements in use: the Jail Enforcement Model and Warrant Service Officer Model. Under the Jail Enforcement Model, state and local law enforcement personnel identified and processed removable foreign nationals who were arrested and placed in state or local custody. The Warrant Service Officer program enabled designated state and local jail officers to serve administrative warrants on individuals already in state or local custody. A third and more aggressive model—the Task Force Model (TFM)—authorizes state and local officers to arrest, detain, and interrogate individuals who have not yet been charged with a crime. Once terminated by Obama after a litany of civil rights abuses, the TFM has roared back to life under Trump with 315 TFM agreements in 30 states.

In the first few years of the program, only a modest number of 287 (g) agreements were signed, but abuses of the authorities emerged. During the George W. Bush administration, Maricopa County, Arizona entered into a Task Force model 287(g) agreement allowing Maricopa County law enforcement to exercise robust immigration enforcement authorities under the direction of Sheriff Joe Arpaio. Arpaio engaged in racial profiling and targeted individuals that posed little or no threat to public safety. The Obama-era Department of Justice investigated (and later sued) Maricopa County, finding a consistent pattern of race-based constitutional violations. Following the investigation and lawsuit, the Obama administration terminated its 287(g) agreement with Maricopa County and ended the use of the model of agreement used in Maricopa County throughout the nation. Just 36 of these agreements were in place at the end of Obama’s second term.

Trump breathed new life into ICE’s participation in 287(g) agreements in his first term by signing an executive order that called for the expansion of 287(g) agreements while broadening the definition of who could be removed under federal immigration law. In 2017, 287(g) participation more than doubled as agreements were signed with 76 state and local agencies. President Joe Biden rescinded Trump’s executive order and his administration did not sign any new 287 (g) agreements.

Since Trump took office in January, the number of 287 agreements has surged. Trump resurrected Maricopa County’s much more comprehensive Task Force Model. The 287 agreements with the Florida and Texas National Guard follow the Task Force Model, effectively super-charging the military’s role in immigration law enforcement. These ICE-National Guard agreements authorize service members to interrogate, arrest, and detain individuals, all traditional law enforcement functions that have historically been undertaken by civilians in American society.

Posse Comitatus and the 287 Agreements

In 1878, Congress enacted the Posse Comitatus Act (PCA) and thus created a statutory presumption against military participation in law enforcement, a presumption that may only be overcome by other legal authorities found in statute or the Constitution. Despite the lack of criminal prosecutions for violation of its terms, the PCA has fostered a longstanding and pervasive orientation in the U.S. military to steer clear of civilian law enforcement except pursuant to express statutory authorization or to repel a sudden attack on the United States.

A few of those statutory exceptions to the presumptive ban in the PCA loom large in the debates over the military’s involvement in immigration enforcement. But the exceptions do not apply and the PCA likewise is inapplicable to National Guard units acting pursuant to 287 status and reporting to the state governor. Following the venerated principle of the American federal system, state governors control their National Guard units when deployed in their default state status.

The takeaway is that state National Guard units may enter into 287(g) agreements, subject to a governor’s approval and any other state law. But the 287(g) agreements do not federalize the National Guard or any other state and local law enforcement agencies. They are deputized, not federalized and possess the full menu of law enforcement authorities in accordance with state law.

What Does the Renewed Emphasis on 287 Agreements Mean for Immigration Enforcement?

The 287(g) agreements have real implications for the so-called “sanctuary cities” and “sanctuary states” now being challenged by the Trump administration. On April 28th, Trump signed an executive order, Protecting American Communities from Criminal Aliens, that directed the attorney general to publish a list of sanctuary jurisdictions, defined as those places obstructing the enforcement of federal immigration laws. In May, DHS identified a list of more than 500 sanctuary jurisdictions, setting the stage for a massive nationwide immigration law enforcement effort that is now aided by hundreds of 287(g)-designated law enforcement partners. The rapid emergence of 287(g) agreements this year signals that any identified sanctuary jurisdiction where there are relevant agreements in place will be on the frontlines of the immigration enforcement effort.

For the most part, states and cities may not obstruct federal enforcement of lawful federal programs or activities. Even where states or cities have alternative enforcement policies alongside a federal program, the federal program implementation may lawfully preempt any inconsistent state or local law or program. The federal authority derives expressly from the Supremacy Clause of the Constitution, Article VI, section 2. It is equally clear, however, that following anti-commandeering decisions of the Supreme Court, the federal government may not obligate the states or its subdivisions to enforce federal laws. As such, sanctuary cities or states may be forced to permit federal immigration enforcement in their jurisdictions, but they are not required to participate in its operations.

An Example, Georgia: Sanctuary Jurisdictions with an Active 287 Agreement

The newly-signed 287 agreements form consensual partnerships between the federal government and local law enforcement agencies. Anti-commandeering principles do not apply once a state or local government enters into such an agreement.

In Georgia, for example, the Department of Homeland Security labeled Atlanta and Athens as sanctuary cities and Fulton, Dekalb, Douglas, and Athens-Clarke counties have all been named sanctuary jurisdictions. On March 17, Governor Brian Kemp announced a partnership between the Georgia Department of Public Safety (DPS) and ICE, which will train 1,100 DPS officers “to better assist and apprehend[] illegal aliens who pose a risk to public safety in the state.” Thus, Georgia DPS may be used to enforce immigration laws throughout these sanctuary cities and counties, consistent with the governing Georgia-ICE 287 agreement.

An Example, Illinois: Sanctuary Jurisdictions and No 287 Agreement

It remains to be seen how ongoing immigration enforcement will occur in sanctuary jurisdictions that lack an active 287 (g) agreement. State governors possess state police powers and control law enforcement jurisdiction over activities within that state.

For example, Illinois not only lacks a 287 agreement with DHS but restricts law enforcement agencies in Illinois from entering into 287 agreements. Could the Missouri Highway Patrol, which has an active 287 agreement, enforce federal immigration law in Illinois? Not without Illinois’ consent. Law enforcement personnel from other states will be prohibited from enforcing immigration law in Illinois absent consent from the Illinois governor. Enforcing federal immigration law in Chicago and other Illinois jurisdictions will remain the province of ICE.

Invoking the Insurrection Act

In addition to Trump’s federalization of California National Guard units in Los Angeles, the widespread use of 287(g) agreements may be an additional step in advance of a wholesale federal militarization of immigration enforcement. Already this year, we have seen an historical deployment of military forces at the southern border as well as the creation of a new National Defense Area. Moreover six states (California, Oregon, Washington, Illinois, New Jersey, and Connecticut) restrict entering into 287(g) agreements as a matter of state law or policy. Absent additional episodes like the one now unfolding in Los Angeles, the president’s plans will likely be blunted in several blue states that refuse to enter into 287(g) agreements and thus limit their cooperation with ICE.

The Insurrection Act, however, would allow the president to deploy active-duty military and federalized National Guard to enforce federal law or suppress a rebellion against federal authority whenever the president determines that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States” make it “impracticable” to enforce federal law “by the ordinary course of judicial proceedings.” A lengthy policy brief prepared by Trump administration lawyers parrots the language of the act and argues that a migrant “invasion” satisfies the Insurrection Act predicate, making it “impracticable to enforce the laws of the United States.” So far, the administration has resisted this more radical step, relying instead on ICE, cooperating states and their 287(g) agreements, and the extant military deployments to facilitate enforcement. Nonetheless, the Insurrection Act would allow the president to use the National Guard or units of the regular military following his determination of the impracticability of enforcing the laws with civilian resources. No state officials may stand in his way because the Guard units are operating as federal armed forces.

The Insurrection Act has never been relied on to authorize immigration enforcement or border security. Its last declaration was during the 1992 Los Angeles riots, which erupted when the police officers who beat Rodney King, a Black motorist, were acquitted. Trump, however, has made clear from day one that he is interested in its use. His January 20 executive order, Declaring a National Emergency at the Southern Border of the United States, specifically calls for the Secretaries of Defense and Homeland Security to report to the president “regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.” As the ongoing Los Angeles situation suggests, an invocation of the Insurrection Act is likely not far off.

Summary of Outstanding Questions & Concerns

Given the outsized role that National Guards are poised to play in federal immigration enforcement, there are several pressing questions and concerns.

• How will training for this new mission be conducted? Prior to actively enforcing immigration law, the law requires that state and local agencies must undergo training—but this requirement appears to be short-circuited in many instances. There are reports that 287 training has now been reduced from four weeks in-person training at the Federal Law Enforcement Training Center to just a 40-hour online training module. Deputizing law enforcement to take on an entirely new complex and dynamic mission in such a manner strikes us as ill-conceived and dangerous—particularly when 287 already has a history of racial profiling and civil rights violations.
• How will ICE effectively oversee this massive effort? In a troubling sign, ICE eliminated the 287 Program Advisory Board, which vetted law enforcement agencies’ applications in conjunction with the newly diminished DHS Office of Civil Rights and Civil Liberties. 287 agreements are now centralized without meaningful vetting. It is unclear how ICE will supervise, train, and integrate National Guard troops into the broader immigration law enforcement missions.
• What is the impact of this new mission on National Guard readiness and civil-military relations? National Guard men and women recently supported the COVID-19 nationwide relief and response effort, the largest domestic military deployment in recent history. In recent years, the U.S. government has asked National Guard personnel to patrol the border, drive school buses, teach in high schools, guard prisons, and take on a host of missions that address problems that are traditionally managed by civilian authorities. The military— particularly the state National Guard—is already a stressed force and government should tread carefully before asking it to take on additional missions. General Daniel Hokanson, the outgoing chief of the National Guard Bureau recently made the same point: time spent on nontraditional missions—such as immigration enforcement—reduces the Guard’s ability to train for core functions (serving in combat overseas, responding to natural and manmade disasters). Although most people welcome the National Guard into their communities following a natural disaster, giving the Guard the immigration enforcement mission changes that dynamic as soldiers detain and arrest their neighbors. Retired National Guard Major General Randy Manner recently testified that these National Guard members “may be placed in an impossible, politically fraught position, eroding domestic civil-military relations.”

The United States has historically been widely respected for its tradition of entrusting law enforcement to civilians–federal agents, local and state police, sheriffs, constables. By contrast, the uniformed military fights wars and keeps Americans safe from foreign adversaries and it is only episodically needed for domestic assignment. American traditions are reflected in the Constitution and are explained in part by antipathy to the English Crown and the heavy-handed use of the British military in the colonies. Although the Constitution enabled Congress to Call Forth the Militia (today’s National Guard) to “repel invasions,” the grant of authority was understood to anticipate the possibility of war being brought to the United States, not to facilitate reaching arbitrarily assigned deportation quotas.

The post The Mounting Crisis of Militarizing Immigration Enforcement appeared first on Just Security.

Typically, the establishment of a new military area of this size would require congressional approval. Congress has historically played a critical role in federal land management through its constitutional powers derived from both the Property Clause and the Enclave Clause. But Trump was able to circumvent Congress this time by declaring a national emergency at the southern border, thereby eliminating the statutory requirement for congressional approval. Further, environmental laws have traditionally played an important role in pumping the brakes on federal actions that impact the human environment and endangered species alike (there are 23 federally endangered species at the border). But the Environmental Protection Agency and the Fish and Wildlife Service are actively dismantling regulatory protections found in both the National Environmental Policy Act and the Endangered Species Act. Absent immediate pushback from Congress or a federal court enjoining the transfer of land to the Department of Defense, the creation of this military area appears to be a fait accompli. The result is a significant increase in the military’s mission at the southern border and further obfuscation of the military’s role in domestic law enforcement functions.

NSPM-4 is best read alongside two executive actions issued in January, declaring a national emergency at the southern border and Executive Order 14167, “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States.” Taken together, these directives seek to accomplish four major objectives, all of which significantly expand the military’s role in border enforcement.

A Transfer of Federal Lands to the Department of Defense

First, Trump is directing the transfer of a 60-foot strip of federal land lying parallel to the U.S.-Mexico border from control of three federal agencies (Interior, Agriculture, and Homeland Security) to the Department of Defense. This land, known as the Roosevelt Reservation, is a noncontiguous strip of federal land that snakes along the southern border from New Mexico to California. President Theodore Roosevelt established the reservation in 1907 to prevent smuggling between the United States and Mexico. In initiating this massive land transfer, Trump highlighted the need for DOD jurisdiction over these lands so that the military could conduct activities such as border-barrier construction and the placement of detection and monitoring equipment.

NSPM-4 calls for a “phased implementation” of this transfer. Initially, only a section of the Roosevelt Reservation in New Mexico, east of Fort Huachuca, will be placed under the DOD’s jurisdiction. But this transfer is only the beginning. NSPM-4 grants what amounts to plenary authority to the secretary of defense to “extend activities under this memorandum to additional Federal lands along the southern border.”

Bypassing Posse Comitatus Act Restrictions

Second, the establishment of a National Defense Area increases the military’s role at the southern border, effectively bypassing longstanding legal restrictions put in place by the Posse Comitatus Act. The Posse Comitatus Act prohibits federal military forces from being used in a law enforcement capacity, such as searching, seizing, detaining, and arresting people entering the country. The Posse Comitatus Act does not apply to National Guard members under state control. Today, there are approximately 10,000 active-duty soldiers operating at the border alongside members of the National Guard. By statute, Congress has granted the military broad authority to protect federal property. Now, federal military forces at the southern border will be empowered to arrest, detain, search, and seize anyone—migrant or otherwise—that attempts to cross into the new National Defense Area.

What’s more, NSPM-4 references myriad statutory authorities—such as the Engle Act (43 U.S.C.-§§ 155-158), Internal Security Act (50 U.S.C. § 797), and 10 U.S.C. § 2672—that reinforce military commanders’ authority to exclude persons from military installations. Indeed, the secretary of defense has the authority under existing law to protect all buildings, grounds, and property under his jurisdiction. In protecting federal property, 10 U.S.C. § 2672 authorizes military officers or agents to enforce federal laws and regulations for the protection of property, and make arrests. And NSPM-4 also highlights a criminal statute, 18 U.S.C. § 1382, that makes it illegal to enter into a “military, naval, or Coast Guard property.”

The authority to prohibit persons from military installations is reinforced in Pentagon regulations that permit direct law enforcement assistance for “actions related to a commander’s inherent authority to maintain law and order on a DOD installation or facility.” An April 16 Pentagon news release reinforced the military’s growing mission in defending the border:

Service members stationed at the border and operating on that land will have greater authority to execute their mission. They will be governed by the same rules as when they are defending any other military installation, such as apprehending trespassers and passing them to appropriate civilian or federal law enforcement officials.

In sum, by transferring federal public lands to the military, Trump is sharply increasing the authority of the military to arrest, detain, search, and seize anyone entering the new property under military authority. The creation of a National Defense Area, in turn, marks an extraordinary shift in the military’s role from indirectly supporting law enforcement to actively serving in a law enforcement capacity. For migrants, the National Defense Area also creates a new offense under the federal criminal code: 18 U.S.C. § 1382 prohibits unlawful entry into any military installation, with a penalty of up to six months in prison.

Muddying the Waters of the Military Purpose Doctrine

Third, NSPM-4 continues the trend of using language that ties immigration flows at the border with broader national security authorities and core military missions. For example, NSPM-4 exclaims that the southern border is “under attack from a variety of threats.” Trump is therefore assigning the military the “mission of repelling the invasion and sealing the United States southern border.” Trump has invoked similar language in invoking the Alien Enemies Act, declaring that the United States is being invaded by a predatory incursion of a transnational gang.

By using such forceful, martial language, Trump is further muddying the already murky waters of the military purpose doctrine, which allows an exception to the Posse Comitatus Act. The military purpose doctrine authorizes “actions taken for the primary purpose of furthering a DOD or foreign affairs function of the United States.” Normal Posse Comitatus Act restrictions do not apply to military activities that further a “military purpose.” Yet deciphering what actions fall within the military purpose doctrine is difficult in ordinary circumstances. Indeed, the Office of Legal Counsel wrote that differentiating between authorized military activities and unauthorized law enforcement functions is “no easy task.” I would characterize NSPM-4 as a continuation of a trend that engages in purposeful ambiguity by employing martial language—“repelling invasions” and “under attack”—that expands the scope of the military purpose doctrine beyond recognition.

A Shortcut to Border Wall Construction Funding

Fourth, the NSPM-4 reference to border-barrier construction is particularly noteworthy. The newly formed National Defense Area bolsters the president’s authority to use military construction money to build the border wall. This military construction authority at 10 U.S.C. § 2808 authorizes military construction projects during time of national emergency “that are necessary to support [] use of the armed forces.”

When Trump sought to employ the same authorities in 2019, he faced legal setbacks when the Ninth Circuit held that the border wall construction was not necessary to “support the use of the armed forces . . . nor were they military construction projects.” By effectively creating a new military installation out of whole cloth, Trump lawyers will argue that, unlike before, the border wall is being constructed on a military facility and amounts to a bona fide military construction project. And “military installation” is broadly defined to encompass established bases as well as “other activity under the jurisdiction of the Secretary of a military department.” To be sure, Congress recently placed a cap on emergency military construction authority—$100 million for construction projects within the United States—but NSPM-4 appears to bolster Trump’s ability to tap into funds set aside for military construction projects.

What are the Possible Checks on this Authority?

Congressional Constitutional Authority. NSPM-4 begins by pointing to Article II commander-in-chief powers that empower the executive branch to protect the homeland and ensure the territorial integrity and sovereignty of the United States. National security powers are famously shared between the executive branch and Congress. Congress, after all, controls the purse strings and has the authority to “raise and support” the Army. Unlike shared national security powers, constitutional authorities over federal property are the exclusive domain of Congress. The Constitution’s Property Clause could not be clearer: Congress has the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” And under the Enclave Clause, Congress has authority to “exercise exclusive Legislation . . . for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”

The Constitution envisions a congressional role in governing all federal property. This clearly encompasses the unilateral transformation of civilian-controlled lands to military-controlled areas. Yet, Congress has been missing in action as of late and appears reluctant to flex its constitutional muscles. Ideally, Congress will reassert its role in federal land management through the National Defense Authorization process. The House and Senate Armed Services Committees will be holding hearings and legislation markup sessions soon on this year’s bill.

Congressional Statutory Authority. Congress has not approved this massive land transfer. Under the Engle Act, approval by Congress is required for withdrawal, reservation, or restriction of over 5,000 acres for any Department of Defense project or facility. But this limitation does not apply today due to Trump’s declaration of a national emergency at the southern border. This is yet another example that showcases the need for reform of the National Emergencies Act, which grants extraordinary power to the president.

Environmental Law Protections. Finally, during the first Trump administration, environmental groups enjoyed considerable success in establishing Article III standing and using both the National Environmental Protection Act and the Endangered Species Act to halt border wall construction and military activities at the border. But the creation of the new National Defense Area—coupled with the concurrent evisceration of environmental regulations—make future environmental challenges far less likely to succeed.

Environmental laws would normally apply to both the land transfer and the border wall construction. After all, the creation of a massive National Defense Area surely constitutes a “major federal action,” that requires an environmental impact statement prepared under the auspices of National Environmental Protection Act. But in a remarkable step that stunned environmentalists, Trump began rescinding all Council on Environmental Quality regulations issued under the law.

Relatedly, the southern border is home to 23 federally endangered species and their critical habitats that normally enjoy robust protections under the Endangered Species Act. The law prohibits the “take” of any endangered species, defined as actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” For decades, harm has been interpreted broadly to prohibit both harm to an endangered species as well as its critical habitat.

Six days after NSPM-4 was issued, the U.S. Fish and Wildlife Service proposed a new rule rescinding the Endangered Species Act’s definition of “harm.” It proposed a definition that only includes an “affirmative act directed immediately against a particular animal,” rather than an act that could indirectly harm an endangered species’ population. Although this new definition is not yet finalized, changing the longstanding definition of harm clears a possible path for border wall construction and military activities that would otherwise be illegal under the Endangered Species Act.

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With just two weeks since NSPM-4 was issued, it is too early to tell if this massive new tract of military land will trigger a congressional response or judicial intervention. Nevertheless, Trump’s efforts to militarize the southern border are on track to be far more successful than they were during his first administration.

Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions

IMAGE: A Stryker platoon is stationed near the fence at the southern US border with Mexico, in Douglas, Arizona, on April 3, 2025. (Photo by DAVID SWANSON/AFP via Getty Images)

The post The New “National Defense Area” at the Southern Border: What You Need to Know appeared first on Just Security.

The firings also appear to breathe life into the military career of a retired Air Force lieutenant general, Dan Caine, whom Trump said he will nominate to take Brown’s place. What’s more, Secretary of Defense Hegseth appears is requesting new nominations for the positions of Chief of Naval Operations, Air Force Chief of Staff, as well as new nominations for the Judge Advocates General for the Army, Navy, and Air Force with an apparent eye toward replacing the incumbents. In total, Trump and Hegseth have fired or appear to be on the verge of firing six of the nation’s most senior officers, with more than 200 years of combined, hard-earned military experience—an unprecedented shakeup of senior military leadership.

This unprecedented purge of the nation’s top brass suggests that Trump, who has attacked former Joint Chiefs Chairman Mark Milley as insufficiently loyal and reportedly said, “I need the kind of Generals that Hitler had,” may attempt to fill these roles with officers he perceives as loyal to him personally. It also raises a host of legal and policy questions that must be addressed before the Senate can provide its advice and consent on a flurry of new military nominations. I was a senior Navy personnel lawyer in the Pentagon, and I know from experience that the legal and policy issues surrounding constitutional authorities, personnel law, and civil-military relations are complex. But here is how I would analyze them.

Did President Trump Have Authority to Fire These Senior Officers?

Presidents have wide latitude to remove senior military officers, but the nature and scope of these removals raise serious questions. Military officers serve at the discretion of the president. For example, the statute governing the Chairman of the Joint Chiefs’ role explicitly states that “[T]he Chairman serves at the pleasure of the President for a term of four years.” And the statute establishing the position of Judge Advocate General provides that the JAG shall be appointed by the President with the advice and consent of the Senate.

Historically, the president’s authority to appoint and remove officers has played a vital role in helping ensure civilian control over the military—an important constitutional principle that has served the nation well since the dawn of the republic. For example, President Harry Truman famously fired General MacArthur, a wildly popular five-star general, during the height of the Korean War for openly disagreeing with Truman over the broader American strategy on the Korean peninsula. While Truman was criticized for this decision and faced massive domestic pushback, history has validated the wisdom of subordinating the military to civilian leadership.

But Secretary Hegseth, in response to a question about his decision to fire the services’ three top JAGs, made a troubling statement on Fox News Sunday. He stated, “We want lawyers who give sound constitutional advice and don’t exist to attempt to be roadblocks to anything that happens.” Congress makes it unlawful for any officer or Department of Defense employee to interfere with the ability of the Judge Advocates General to give independent legal advice. At the very least, Hegseth’s statement that the Administration was firing the JAGs to remove them as “roadblocks” calls into question the Administration’s compliance with the spirit of this statutory requirement.

Are These Firings Unusual?

Yes. Under federal law, the Chairman of the Joint Chiefs of Staff is the principal military adviser to the President, the National Security Council, the Homeland Security Council, and the Secretary of Defense. Like all uniformed personnel, the Chairman is apolitical, and former Chairmen have historically served out their terms across changes in presidential administration. The Goldwater Nichols Act, which established the role of Chairman, prescribes a four-year term that begins on October 1 of an odd-numbered year—deliberately ensuring a level of continuity and stability at the Pentagon. That design of insulation from politics is undermined by firing the individual before their term ends.

While it was the president’s constitutional prerogative to remove these six senior officials, an important constitutional norm separating the military from political activities is being stressed in new and troubling ways. These six officers are not being fired for misconduct, insubordination, or any specific performance issue. The reasons are murky, but appear in part to relate to some of the senior officers’ commitment to diversity initiatives, a priority of the earlier administration.

What is the Role of Military JAG Attorneys?

No articulable reason has been offered for the mass firing of the three top JAG attorneys, who play a critical role in overseeing the military justice system and upholding the rule of law and whose summary removals are unprecedented in modern times. Former Air Force JAG Major General Charles Dunlap does an outstanding job outlining the critical role that JAGs play in providing independent, nonpartisan legal advice here. And Congress reinforces the role that JAGs play in providing expert military legal advice. Indeed, as noted above, existing law prohibits any military or civilian member in the Department of Defense from interfering in independent legal advice given by the Judge Advocate Generals of each service.

The firing without apparent cause of the service JAGs is particularly disturbing. I proudly served as a Navy JAG, and can say from experience that JAG attorneys play a critical role in providing neutral, independent, fact-based guidance to commanders up and down the chain of command. This legal advice ensures that the military follows the law and acts within its constitutionally prescribed role. That can be especially important in determining the legal boundaries for when the U.S. military can be used domestically. During the George W. Bush Administration, uniformed JAGs were purposefully kept out of the loop, excluded from the so-called “war council” that issued the infamous torture memos. Civilian leaders knew that the senior JAGs opposed the administration’s torture policy and did not want pushback. Yet how much harm did legalizing torture cause to the United States’ mission, not to mention our long-term credibility and security? Congress, angered at the sidelining of service JAGs during this episode, responded in 2008 by elevating their positions from two stars to three, a rank that each holds to this day.

Indeed, uniformed JAGs are keenly aware of the importance of adherence to the laws of war and are the military’s experts on operational law, a field of growing importance. Operators across the services depend on JAGs to advise them on how to carry out their missions safely and lawfully. I can speak to this from firsthand experience. Prior to serving as a JAG, I was a tactical jet aviator flying missions from aircraft carriers during both an international armed conflict in 2003 and operations enforcing the no-fly zone in Iraq in 2001. The operational legal environment in the Middle East during that time was extraordinarily dynamic, dangerous, and legally complex. As an aircraft mission commander, I relied on JAG officers to educate me on complex rules of engagement and translate America’s international legal obligations from the treaty to the cockpit. The JAG assigned to my aircraft carrier strike group was a former Navy SEAL—similar to many JAGs who have prior operational and combat experience. I recall peppering him with a slew of questions and real-world scenarios that we could face in the cockpit, knowing that we would just have seconds to react. His advice was critical to our safety and success.

The administration’s move to fire the top JAG attorneys is ominous, and suggests they’ll try to stack these roles with officers they believe will be more pliant and less likely to push back against unlawful orders. Defense Secretary Hegseth has already made several disparaging remarks about JAGs, who he derides as “jagoffs.” That’s insulting and demeaning to a critical component of our armed forces, and reflects an aversion to upholding the rule of law. It also misunderstands the role of JAGs and uniformed personnel more broadly, who follow lawful orders—which have a high presumption of legality—across changes in administration. This special trust is essential to the rule of law and civilian control of the military. After all, military officers take an oath to the Constitution, not to a particular person or political party.

Does the Nomination of Lieutenant General Caine Raise Any Legal Issues?

Yes. There are several legal issues arising from Lieutenant General Caine’s experience, status and current rank. To be clear, Lieutenant General Caine has had a truly extraordinary career as an Air Force pilot where he served as a White House Fellow and in a variety of top leadership positions. But the Goldwater–Nichols Act puts in place the highest of high bars for appointment to Chairman. The Senate should ensure that this appointment meets the legal prerequisites for the Chairmanship described below.

• Experience. Current law requires that the Chairman of the Joint Chiefs have certain prior experiences—either as Vice Chairman, or as a combatant commander or service chief—to be eligible for appointment. To date, every prior Chairman has met this requirement. While Lieutenant General Caine lacks any of these experiences, the statute allows the president to waive this requirement if he determines that “such action is necessary in the national interest.” Although President Trump can waive the requirement, Congress identified these prior experiences for a reason: to reward success at the four-star level in joint assignments. Joint assignments demand specialized skills and knowledge of joint interoperability and how the different services work together in complex operational environments. Former Senator Goldwater insisted that the military embrace joint operations to avoid disasters—such as the failure to rescue American hostages in Tehran—that demonstrated the inability of the different services to work together.

• Status. Under the Goldwater-Nichols Act governing military personnel law and the Pentagon’s organization, Congress requires that any officer appointed to serve as Chairman of the Joint Chiefs must be an officer “of the regular components of the armed forces.” Title 10 of the U.S. Code does not expressly define “regular components,” but does distinguish between “regular” and “reserve components”—indicating that members of the Reserves are not members of regular components of the armed forces for purposes of the statute.As of this writing, it remains unclear whether Lieutenant General Caine meets the baseline requirement for appointment as a member of the “regular component.” It appears that he is currently retired. Caine served in a variety of Guard assignments and his bio notes that “from 2009-2016, Caine was a part-time member of the National Guard and a serial entrepreneur and investor.” What is his current status? Is he part of the Retired Reserve? Recalling him to active duty will be a necessary first step, but will he still be in a reserve component status? If so, that is a problem. Unlike the Goldwater–Nichols Act’s separate requirement that the Chairman have prior experience as the Vice Chairman of the Joint Chiefs of Staff or as a combatant commander or service chief, the statutory requirement that the Chairman come “from the officers of the regular components of the armed forces” cannot be waived by the president alone and would require action by both chambers of Congress. This question regarding status must be clarified before the Senate moves forward to vote on this nomination.

• Rank. Lieutenant General Caine is currently a three-star officer. Every nominee to serve as Chairman of the Joint Chiefs of Staff has served for years with four stars, a rank they would necessarily have attained by serving in one of the roles Congress specified as a prerequisite for appointment as Chairman. While there is no legal bar to the president nominating a three-star officer without prior joint experience given the waiver provision described above, so long as the status issue described above is resolved, the nomination of someone at the three-star rank who has not served as a combatant commander or service chief is unusual and worthy of further Senate inquiry.

Beyond the legal issues raised by Caine’s nomination, it is striking that Trump overlooked several outstanding officers who already meet the existing Goldwater–Nichols Act statutory requirements, to include leading a combatant command. For example, Admiral Sam Paparo is the Commander of Indo-Pacific Command, a command spanning 36 nations (to include China), 14 time zones, and 60 percent of the world’s population. And there are numerous four-star officers who don’t present the legal issues with experience, rank and status that I highlighted above.

What explains the end run around these dozens of qualified officers in favor of Caine, who by all accounts had an extraordinary career but falls short of the statutory criteria in multiple respects?

Does Congress Have a Role in These Military Officer Appointments?

Yes. Congress can and should respond to these unprecedented personnel moves in several ways.

First, the Senate has a strong constitutional advise and consent role for all the newly nominated military officers. And heightened scrutiny is warranted given the unusual nature of Caine’s candidacy and the broader, troubling context.

Second, the Senate must ask searching questions of a nominee who Trump himself has said expressed personal political loyalty to the president:

“He said, ‘I’ll kill for you sir,” Trump said. “Then he puts on a ‘Make America Great Again’ hat.”

The Department of Defense has strict guidance prohibiting service members from engaging in partisan political activities. Indeed, all military personnel are instructed to avoid “the inference that their political activities imply or appear to imply DoD sponsorship, approval or endorsement of a political candidate, campaign or cause.”

Caine has reportedly said he did not wear a MAGA hat, but the fact Trump has highlighted this as an apparent selling point for Caine suggests he will nominate him because he views the retired lieutenant general as a loyalist. Senators should ask him whether he wore a MAGA hat, and said “I’ll kill for you sir,” but should also ask probing questions about his view of the military’s role in our constitutional scheme and how he would respond to unlawful orders. They should ask for specific commitments that he will put his oath to the Constitution above his personal political views or loyalties. And they should also probe his qualifications to serve in a role traditionally occupied by officers with requisite experience and rank.

Third, given the broader and very serious concerns about Trump’s purge of apolitical career officers and stated desire to have loyalist generals, the Senate should consider using other tools at its disposal to push back. During the prior Congress, Senator Tuberville held up the promotions of hundreds of flag and general officers over unrelated objections to the Pentagon’s abortion policy. Tuberville’s blockade applied across the board to hundreds of officers at all ranks, the overwhelming majority of whom played no role in setting any type of Pentagon policy—and it threatened readiness and retention and harmed military families across the services, as I argued at the time. A similarly sweeping hold on all officer promotions would be just as problematic now, but Senators should consider wielding their authority in a more targeted way, including by withholding consent for specific nominees who do not pass muster.

Conclusion

Make no mistake: these firings are extraordinary and destabilize a longstanding norm of separating uniformed military members from politics. It is not an overstatement to characterize these firings as unprecedented and dangerous. What’s more, this purge is occurring against a backdrop of massively complex national security challenges in Ukraine, the Middle East, and beyond.

Congress, which the Constitution envisions having a robust role in the appointment of officers and funding the military, must assert itself. How will they respond to this troubling politicization trend?

Editor’s note: This piece is part of the Collection: Just Security’s Coverage of Trump Administration Executive Actions

IMAGE: The Pentagon logo and an American flag are lit up in the briefing room of Pentagon in Arlington, VA. (Photo by Alex Wong/Getty Images)

The post How the Pentagon Personnel Firings Threaten Our Apolitical Military appeared first on Just Security.