Military attorneys have a proud history, prosecuting landmark matters with worldwide visibility throughout our country’s history. Generals George Washington and Andrew Jackson used military attorneys to prosecute spies during the American Revolution and War of 1812. During WWII, President Franklin D. Roosevelt used military lawyers to prosecute German prisoners accused of espionage and sabotage against the U.S.
More recently, military attorneys — the United States Judge Advocate General Corps (JAG) — have played an important role in the prosecutions of the Mỹ Lai Massacre, abusers of Abu Ghraib detainees, USS Cole bomber and the 9/11 Five conspirators. Today, JAGs are being tapped for another high profile purpose, and again, the world is watching.
{mosads}Earlier this year, Attorney General Jeff Sessions and the Department of Justice (DOJ) implemented a “zero-tolerance” policy aiming to prosecute all undocumented border crossings, a misdemeanor with a maximum punishment of up to six months in custody and/or a $250.00 fine for a first offense. The implementation of this policy will lead to a sharp increase in criminal prosecutions and the federal government will need additional attorneys to carry the load.
To that end, last week the DOJ made a formal request to the Department of Defense (DOD) to use active duty JAGs to prosecute these offenses. Secretary of Defense James Mattis approved 21 active duty JAGs for 179-day tours in Arizona, Texas and New Mexico.
Under DOJ supervision and with its approval, any federal government attorney can be used as a Special Assistant United States Attorney (SAUSA). Under normal conditions, soldiers serving in a Title 10 status are prohibited from directly serving in a domestic law enforcement capacity due to a law known as the Posse Comitatus Act (PCA). However, when military attorneys are detailed as SAUSAs to the DOJ and subject to their control and supervision, the PCA does not apply to those military members.
Using JAGs as SAUSAs isn’t new, there are active duty JAGs whose primary duties are to serve as SAUSAs, but they are few in number. There are also JAGs whose primary duties are as Trial Counsel for a specific command, but who also serve as SAUSAs in a secondary capacity.
Trial Counsels act as advisors to commanders and prosecute violations of the Uniform Code of Military Justice (UCMJ) within their assigned command. In their capacity as SAUSAs, these same Trial Counsel prosecute civilians in federal court who are accused of misdemeanor offenses occurring on military installations. Typical offenses include traffic violations and petty theft, and defendants are rarely in custody.
When the DOJ filed its request, members of Congress questioned the use of JAG attorneys for border crossing prosecutions. Reps. Anthony Brown (D-Md.) and Ted Lieu (D-Calif.) wrote to Sessions requesting he withdraw the request for military attorneys. Sens. Joni Ernst (R-Iowa), Kirsten Gillibrand (D-N.Y.), and Patrick Leahy (D-Vt.) wrote to Mattis expressing concerns that the military needs their JAG attorneys performing their core mission instead of using them for a non-military purpose.
The DOD will likely address this concern by calling on activated reservists for this mission, freeing DOJ attorneys to concentrate on felony prosecutions and leaving active duty JAGs in place to perform their military duties. There is no doubt the JAGs used for this mission will perform their duties honorably, ensuring the accused receive due process.
At the moment, the most high profile JAG mission with worldwide visibility is the military commission proceedings. JAGs are prosecuting detainees at Guantanamo Bay who were captured on the battlefield and charged with war crimes and acts of terror.
JAGs will now be used as SAUSAs prosecuting civilians for border crossings. There is a drastic difference in the potential worldwide optics for the use of JAG attorneys prosecuting civilians for border crossings compared to their use in military commissions.
The construction of detention facilities by the Navy, housing of undocumented immigrants on military installations, and the administration’s choice to use military attorneys for border crossing prosecutions is ample proof that it views immigration as a threat to national security.
The administration’s choice to use military attorneys for this mission, instead of attorneys from a different federal source, may be judged harshly as many of the border crossers are seeking asylum from conditions in their native country.
These moves by the administration further enhance the appearance, on a global stage, that the U.S. is employing the military to secure an impenetrable border, signaling to the world that we no longer desire to be a nation of immigrants. Once again, the world is watching and this is not a good look.
Timothy M. MacArthur is a clinical professor and director of the Mason Veterans and Servicemembers Legal Clinic at the Antonin Scalia Law School at George Mason University.