JAGs and the rule of law

JAGs alone can't defend the rule of law, Prof. Dan Maurer argues in this Lawfare post. Excerpt:

To be sure, nothing can undo the damage of summarily relieving the three TJAGs left on the Department of Defense and the service JAG Corps. Like earlier leadership “massacres” (Thursday or Saturday), this too will be fodder for public debate and academic study, and will have negative downstream effects for those remaining—who are still expected to uphold the principles of the “dual profession” of arms and law. To the extent that [Secretary of Defense Pete] Hegseth’s relief of the TJAGs makes that harder, and existing occupational duties limit the provision of key advice to commanders unnerved by legally questionable orders, there is cause for alarm.

Tempus fugit, but not in this court

Yesterday and today, the Supreme Court of Pakistan's Constitutional Bench continued the hearing on intra-court appeals in the Military Courts Case. One of the petitioners' counsel concluded his argument yesterday; now others are being heard. 

Perhaps some reader can comment on how long a day's hearing typically lasts in this court. The news reports include a few of the colloquies, but one can't tell if the justices are on the bench for one hour or, say, four. Predictions as to when the arguments might finally be completed are also welcome.

What will Uganda do about the Supreme Court's decision on military courts?

The Kampala Observer has this helpful roundup of the political response to the Supreme Court's recent decision barring courts-martial of civilians. Stay tuned; it looks like efforts will be made to evade the decision. Excerpt:

Following the ruling, the NRM caucus voted recently in favor of new amendments to the UPDF Act, including a provision allowing the trial of civilians who illegally acquire specified firearms in the Court Martial. Government chief whip Denis Obua confirmed this resolution.

“We resolved that misconduct by serving military personnel will first be tried by the General Court Martial, with the right to appeal through civilian courts. Similarly, civilians who illegally acquire specified firearms will also be tried first by the Court Martial, with the right to appeal through civilian courts,” said government chief whip Denis Obua in a brief statement.

NRM CAUCUS AND THE UPDF AMENDMENT BILL

The caucus decision followed a high-level meeting at State House Entebbe, where members resolved to withdraw the UPDF Amendment Bill 2024 from Parliament. The bill had originally sought to reform the Uganda Peoples’ Defence Forces Act by aligning it with evolving government policies, changes in command structures, and new administrative provisions.

Additionally, it aimed to improve the welfare of defence Forces personnel by addressing gaps in healthcare services, transferring their pension from the ministry of Public Service to the ministry of defence and Veteran Affairs, and strengthening disability compensation mechanisms for military officers and enlisted personnel.

However, the Supreme court’s decision rendered some aspects of the bill legally untenable, necessitating a review before it could proceed in Parliament.  The Supreme court’s ruling stemmed from a constitutional appeal filed by former Nakawa Municipality MP Michael Kabaziguruka, who challenged the military courts’ authority over civilians.

Killing the lawyers

SECDEF

Lesley Wexler and Anthony Ghiotto have writted a Justia post titled Let's Kill All the Lawyers: The Friday Night Massacre of Judge Advocates General. Excerpt:

This potential chilling effect is likely to extend well below the TJAG level. Judge advocates advise at all levels of command. And TJAGs exercise statutory control and responsibility over all judge advocates within their departments. Such responsibility includes the authority to deploy and reassign subordinate judge advocates. Suppose one of the new TJAGs is a Trump administration loyalist who refuses to establish any roadblocks to the administration’s use of the military. A junior judge advocate may identify a potentially unlawful order that flows down to a junior commander. The junior judge advocate may be up for promotion, may not be eligible for retirement, may be assigned to a location where their spouse may be able to work or where her child may be able to receive special services. This junior judge advocate may fear that if she gives independent legal advice that runs afoul of their TJAG, she could be punished with a new assignment, a deployment, or other adverse career consequences. Of course, the fear of retaliation will not deter all junior judge advocates. Think of Lieutenant Alaric Piette, a Navy JAG Corps defense attorney, who repeatedly objected to irregular military commission proceedings on behalf of his death penalty eligible client. Piette knew such actions were deeply unpopular not only with the presiding Judge Vance Spath, but with many in the military as well. Many suspect his superiors failed to promote him as a result—a stiff penalty in an up or out system. Such courage should not be taken as inevitable, particularly in a setting likely to be much more punitive than even the one Piette faced.

NIMJ Statement of Concern

On rare occasions, the Board of Directors of the National Institute of Military Justice has issued public statements on current events. The board today released the following statement:

NIMJ Statement of Concern about Secretary Hegseth’s Political Interference with Military Justice 

The board members of the National Institute of Military Justice (NIMJ) are deeply distressed about Defense Secretary Pete Hegseth’s removal of the top uniformed lawyers in the Army, Navy, and Air Force prior to the expiration of their statutory four-year terms.

While military officers have been relieved before, the Secretary’s firing of The Judge Advocates General (TJAGs) is wholly unprecedented. When pressed by the media for a reason for such an extraordinary move, Secretary Hegseth said he fired these top military lawyers because they might be “roadblocks to anything that happens.” 

We recognize that TJAGs are not entitled to autonomy nor are they immune from legitimate scrutiny from civilian leadership, and that at times there may be valid reasons for firing such an officer on an individualized basis. But the reasons for doing so matter, and these reasons must be expressed publicly. Here, it appears that there was no legitimate rationale for these firings—rather, they were motivated purely by partisan concerns.

Secretary Hegseth’s justification raises more concerns than it answers. Among other issues, it rekindles the specter of unlawful command influence, which has been called “the mortal enemy of military justice.” 

The American military justice system has continuously battled against efforts of those tempted to put thumbs on the scales. A system that is fair—and is seen to be fair—is an essential reason why Americans allow their sons and daughters to join the military. A fair military justice system is a national security priority. 

A fair military justice system requires structural independence. Those who play roles in the process must be able to do so without fear of recrimination. This includes the top service lawyers, who play important roles in training, leading, and supervising the military lawyers who are integral to the military justice system. 

Since 1991, NIMJ has advocated for the fair administration of justice in the armed forces, as a non-partisan group of experts who are independent from the government. We do not always agree with the decisions of the TJAGs. In this case, we are concerned that their firing without sound justification sends the unwelcome message to those in the military justice system that they, too, might be arbitrarily fired simply for doing their jobs. 

Board of Directors

National Institute of Military Justice