How the Pentagon sidelined lawyers while testing the legal limits of military action
By Natasha Bertrand, CNN
(CNN) — For weeks earlier this year, the Army’s top uniformed lawyer had been raising legal concerns inside the Pentagon about some of the new policies being rolled out dictating how the military can be used and staffed.
In late January, Lt. Gen. Joe Berger, who had taken the top posting in July 2024, was asked for his advice about the legality of using Texas National Guard soldiers for immigration enforcement. Berger told Army chief of staff Gen. Randy George that he was skeptical and wanted more information about whether the soldiers were properly trained for that kind of mission, according to a former senior defense official and another person familiar with his actions.
He was told by the department’s acting general counsel, Charlie Young, to stop meddling in state affairs, the sources said.
Then, in early February, Berger and his team began asking questions of civilian leaders about the legality of firing huge swaths of probationary Defense Department employees, which was being pushed at the time by the Elon Musk-led Department of Government Efficiency. Defense officials across the services were raising concerns that the summary firings could break the law and potentially harm the US military’s ability to fight.
But when officials in Berger’s office sought to discuss the legal basis of the mass purge —which they would likely have to defend in court — Young refused to speak to them altogether, making clear he would only speak to the Army’s top civilian lawyer at the time, the sources recalled.
Then, on February 14, the right-wing social media account LibsofTikTok, which Defense Secretary Pete Hegseth has frequently engaged with on X, accused Berger of running afoul of Hegseth’s anti-diversity, equity and inclusion policies.
The Army denied that accusation, also on X. But one week later, Hegseth fired Berger. A second top legal officer, the Air Force’s Judge Advocate General, Lt. Gen. Charles Plummer, was also fired. Hegseth told reporters later that he viewed them as potential “roadblocks to orders that are given by a commander-in-chief.”
The Office of the Secretary of Defense didn’t respond to specific questions about Berger’s or Young’s conduct. Young is likely to be confirmed soon as the new Army general counsel, having been nominated by President Donald Trump in April.
More than a dozen current and former defense officials, including four current Judge Advocate General corps officers, told CNN that Berger and Plummer’s firings appeared to be the first warning shots by a new administration intent on pushing the boundaries of the law — whether by kicking all transgender troops out of the military, firing thousands of civil servants, deploying National Guard troops to cities over the objections of governors or launching lethal strikes against suspected drug traffickers in the Caribbean sea.
“Decapitating those organizations”—the Army and Air Force JAG Corps—“was an easy way for Hegseth to send a strong message from the outset and put the entire JAG corps on notice,” a defense official familiar with his thinking told CNN.
Historically, the senior JAGS of the military branches have been duty bound to provide candid and apolitical legal advice to top leaders. The senior-most JAGS, and the thousands of lower-ranking JAG officers across the services, are expected to be neutral arbiters of US and international law to determine an order’s lawfulness and empower commanders and troops to fulfill their duty to disobey illegal commands.
But when looking for the JAGS’ replacements, Hegseth’s staff prioritized questions about whether candidates agreed with former President Joe Biden’s policies rather than their interpretations of law, the former official and another person familiar with the interviews said. Candidates were asked, for example, how they felt about requiring COVID-19 vaccines for troops and allowing transgender troops to serve, the sources said.
Current and former defense officials told CNN they believe the interviews amounted to “political litmus tests.” Two of the JAG officers CNN spoke to said that they have become increasingly nervous about vocalizing their independent legal opinions because they’re worried about getting fired.
“Hegseth’s rhetoric and policies are perceived as a bit unhinged and counterproductive, but the way forward is just to eat it and put your head down and act in accordance with his new policies,” said one current Army JAG. “No JAG is trying to rock the boat or get noticed.”
‘Get them out of the way’
Hegseth has made other moves beyond the firings to significantly change the role and responsibilities of military lawyers. He reduced the rank requirement for the top uniformed military legal posts from three stars to two stars for admirals and generals, effectively relegating them to second-tier legal advisers, the former senior defense official said.
And he plans to transfer up to 600 JAGs to the Justice Department to serve as immigration judges, removing them from the military justice system altogether, defense officials familiar with the planning said. DoD spokesperson Sean Parnell told CNN last month that “at the request of the Department of Justice, the Department of Defense is identifying qualified Judge Advocates and civilian attorneys for details to serve as Temporary Immigration Judges.”
“I see this as part of a grander plan to remove lawyers from the [military’s] operational forces and get them out of the way,” said the former senior defense official.
Not all JAG officers are concerned about the changes — the JAG corps is a huge and varied institution. Thousands serve in the Army, Air Force, and Navy JAG corps. One current Army JAG told CNN that he agrees that uniformed lawyers should be reined in.
“We JAGs have far too long abused our proximity to commanders, and think that we make policy,” he said. “The military’s job is to execute the orders of commanders, and I think JAGs need to make sure those orders are legal, ethical and smart, but we should not operate as some shadow command.”
Another Army JAG said he’s not surprised that some officers are feeling political heat— the reality, he said, is that top military lawyers, despite wanting to view themselves as completely apolitical, are usually unable to stay out of the political fray given the policies they’re routinely expected to defend or oppose.
“It’s still a client, and while the oath to the Constitution is the number one priority, you’re still expected to represent your client to the best of your ability,” this JAG officer said. “And sometimes that means the legal argument picks up a political bent.”
Hegseth has repeatedly publicized his view that the military justice system is overbearing and out of touch. He referred to JAGs pejoratively as “jagoffs” in his 2024 book The War on Warriors, writing that he believed that JAGs preferred to investigate US troops rather than “bad guys” because it was “easier to get promoted that way.”
He tapped his personal lawyer, Tim Parlatore, to coordinate an overhaul of the military legal system, beginning at the top. “I am so excited for this opportunity to return to service and help to make significant improvements to our military justice system to best support the warfighter,” Parlatore wrote on X in March.
One goal of that initiative, which is still in its early stages, is to reduce the uniformed lawyers’ presence at the Pentagon and instead send them out to the field to be more integrated into operations, a current official said.
But Hegseth has also made his expectations clear to military lawyers embedded with commanders in the field, who often advise on the laws of armed conflict, the international legal framework that dictates how and when militaries can use force. Speaking to a room full of generals and admirals late last month, Hegseth derided “stupid rules of engagement,” and urged those assembled to get on board with his vision to “untie the hands of our war fighters.” He also said he wanted to raise the bar for troops to be investigated for misconduct.
“The rule of law at DoD has been under attack since day one of this administration,” one of the current JAGs told CNN. “There is a real dismissiveness of lawyers now. And I fear for where this is all going.”
Military lawyers wary of US strikes in Caribbean
One recent flashpoint for the role of US military lawyers has been the series of strikes on boats in the Caribbean, with multiple current and former JAGs telling CNN that the strikes do not appear lawful. Lawyers specializing in international law within DoD’s Office of General Counsel have also raised concerns about the legality of the strikes, sources familiar with the matter said.
Additionally, the top international law expert in that office, Michael D’Annunzio, is set to leave his role soon and move to a position at NATO in Europe, multiple people familiar with the matter told CNN. Former officials familiar with the matter said D’Annunzio has been left out of discussions surrounding the legality of the Caribbean strikes.
The Office of the Secretary of Defense didn’t respond to specific questions about D’Annunzio. But in a statement, Parnell said, “The War Department categorically denies that any Pentagon lawyers with knowledge of these operations have raised concerns regarding the legality of the strikes conducted thus far because they are aware we are on firm legal ground,” adding that there is a “robust system of internal checks and balances within the War Department that offers those involved in operations the opportunity to disagree.”
“No lawyer involved has questioned the legality of the Caribbean strikes and instead advised subordinate commanders and Secretary Hegseth that the proposed actions were permissible before they commenced,” he said.
Defense Department lawyers are now deferring to an opinion produced by the Justice Department which says that the president is legally permitted to order the deadly attacks on the boats based on an argument that the US is in the midst of an armed conflict with cartels, CNN has reported. Legal experts have repeatedly questioned the legality of the strikes, and the DOJ opinion has not been released publicly.
A Navy JAG who is not directly involved in the decision making around the strikes told CNN that the policy has put some lawyers in a tenuous position.
“The view is, you probably don’t want to stray too far away from what you know is correct,” this person said. That is because the time will inevitably come, they added, when a new administration with a different defense secretary will be in power. “And when that time comes, you don’t want to have evidence of you running too much afoul of what’s required by law.”
JAG officers told CNN they’ve also been uncomfortable with the political events Trump has held at bases in recent months. Before Trump visited Fort Bragg in June, for example, the White House called the base and told officials the president wanted them to put on a parade with all 50,000 troops stationed there, a source familiar with the episode recalled.
Uniformed lawyers strenuously advised against it, this source said, as DoD policy prohibits active-duty troops from participating in political events. Ultimately, it was deemed too short notice to put on such a huge parade. But pro-Trump political merchandise was sold on base during the event, which service members were photographed purchasing, and some troops cheered or jeered when the president touched on highly political issues — conduct the lawyers had also warned against beforehand.
“They were ignored,” this source said. “Who is going to listen to them when they know the president wants to do something?”
One change that Hegseth has made is, on its surface, relatively small. But current and former defense officials believe the secretary is also deliberately sidelining JAG leadership by installing two-star generals in those positions rather than three-stars.
After 9/11, as Justice Department and White House lawyers advised the CIA and DoD that torturing detainees was in their view legally permissible in some instances as part of the war on terror, several JAGs were warning against it, Republican Sen. Lindsay Graham told PBS in 2007. But the top JAGs for each service were two-star generals and often not senior enough to be in the room for the highly sensitive discussions. As a result, they were largely being ignored by DOJ and White House lawyers, Graham, who served as an Air Force JAG for more than 30 years, said at the time.
Graham subsequently pushed, successfully, to elevate the JAGs’ rank. “I don’t want the military legal system having to answer unnecessarily to political appointees,” he said at the time. “I want them to be able to talk to their commanders, get independent input, to use their military legal experience in independent fashion for the good of the system.”
But Hegseth effectively demoted them again. The Army, Navy and Air Force JAG positions are currently all held by two-star officers. Graham’s office did not respond when asked for his view on the demotions.
The former senior defense official said the change is significant.
“When you’re a 2-star and you walk into the room for a high-level meeting, you’re against the wall. You’re not at the table. And there are some meetings that are held just at the 3 or 4 star level—so you can’t even get into the room as a 2-star.”
Hegseth’s longstanding concerns about JAGs
Much of Hegseth’s criticism of military lawyers stems from his experience serving as a platoon leader in Iraq in 2005, when by his own account he was given a briefing by JAGs in Baghdad whose advice was to refrain from shooting someone carrying a rocket-propelled grenade unless it was “pointed at you with the intent to fire.” Hegseth wrote that he told his platoon it was a “bullshit rule that’s going to get people killed.” He also wrote that he was “tasked with releasing Iraqi men who we knew had American blood on their hands. The jagoff lawyers told us we had to do it.”
Current and former officials familiar with Hegseth’s thinking, however, told CNN that the experience that arguably solidified his disdain the most was when his unit became ensnared in a war crimes investigation by Army lawyers that effectively ended the career of his commander at the time, Col. Michael Steele. Steele was not charged with a crime, but he was formally reprimanded, making it unlikely he would ever be promoted again.
While Hegseth was not involved in the operation that led to the war crimes allegations, which centered around the deaths of four unarmed Iraqi men in 2006, the ensuing probe resulted in serious jail time for several of those Hegseth had served with. It also left a cloud of suspicion hanging over several of his mentors and the unit as a whole.
“The sad part was, the entire unit was painted as a bunch of bad guys and it was just not fair,” a former officer who served in the unit with Hegseth told CNN last year. In 2019 Hegseth became a vocal advocate for at least three servicemembers who’d been either accused or convicted of war crimes.
Parlatore, Hegseth’s lawyer who rejoined the Navy Reserve in March to help advise Hegseth in a more official capacity, said in a post on LinkedIn earlier this year that the JAGs’ legal recommendations carry too much weight while at the same time being shrouded in secrecy.
“Every day, [Staff Judge Advocates] recommend removal of O5 and O6 commanders with zero public explanation beyond a ‘loss of trust and confidence,’” he wrote. “There have been significant problems within the JAG Corps which require a serious course correction.”
Other current and former JAGs, however, said they understand that their role is simply to advise, and that while they can formally record their dissent or opinion that an action is illegal, they also can’t stop a commander from moving forward with it.
“Lawyers advise. Commanders decide,” the former senior defense official told CNN. “It’s just that simple.”
CNN’s Zachary Cohen contributed to this report.
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