The role of judge advocates in the armed forces is a critical one, particularly in times of tension and unrest within the United States, such as the current demonstrations in Los Angeles regarding immigration policy. Sworn to uphold the Constitution and provide legal guidance to military commanders, judge advocates find themselves in a precarious position when the deployment of military forces is considered to address domestic issues.

The Posse Comitatus Act, enacted in 1878, is a cornerstone legal barrier that limits the use of federal military forces in domestic law enforcement activities. This statute was implemented to prevent the military from acting as a police force against US citizens, reflecting a fundamental commitment to civilian oversight and the rule of law. Military personnel can only provide support to law enforcement and state assets in non-direct roles, which underscores the reluctance of the judicial and legislative branches of government to involve the military in domestic governance.

In this context, any directive from the president to federalize the California National Guard to address demonstrations raises significant constitutional questions. Federalizing the National Guard places its members under federal command and, consequently, under the scope of the Posse Comitatus Act, restricting their capacity to engage in law enforcement actions. This creates a legal hazard for military commanders and judge advocates advising on such deployments. By not involving the Governor of California in the decision to deploy federal troops, the president actually subverts the law, as well as policy and procedure.

As legal advisors, judge advocates have a duty to make commanders aware of legal limitations imposed by existing statutes, such as the Posse Comitatus Act and other applicable laws regarding the use of force and the protection of civil rights. Their guidance is essential in navigating the complex relationship between military authority and civilian law enforcement—particularly in high-stakes situations where the potential for conflict and escalation is significant.

The Secretary of Defense’s decision to fire all Judge Advocates General (JAGs) within our armed forces raises additional concerns about the continuity and integrity of legal advice within the military ranks. It certainly sends the wrong signal to commanders related to following the law. Judge advocates are crucial in reminding leadership of their obligations to the Constitution and the principles of lawful conduct, even against the backdrop of political pressure or public unrest. Their absence or diminished influence could result in a disconnection between military operations and the legal frameworks that govern them.

As we commemorate the 250th anniversary of the US Army and its Judge Advocate General’s Corps, this moment serves not only as a reflection on the historical contributions of JAG officers, but also as an imperative for the corps to reaffirm its commitment to its founding principles. Judge advocates must embrace their role as defenders of the Constitution, steadfast in providing impartial legal guidance even in challenging circumstances.

The challenge before them is twofold: they must provide clear, legally informed advice to their commanders while also standing firm against potential executive overreach that might arise in politically charged environments. Ensuring that their advice is both actionable and consistent with the law is paramount. Silence or acquiescence in the face of unlawful orders undermines not only their oath as judge advocates and officers, but also the fundamental values upon which the armed forces are based.

In an era where the lines between enforcement and protection are increasingly blurred, the necessity for robust legal counsel within the military cannot be understated. The armed forces’ judge advocates face an urgent and critical role at a crossroads—balancing the need for national security with a steadfast commitment to constitutional principles. In this historically significant moment, it is vital for them to step forward, articulate their legal responsibilities with clarity, and ensure that any actions taken are firmly grounded in law, thereby safeguarding the fundamental liberties of all Americans.

David M. Crane is the Founding Chief Prosecutor of the UN Special Court for Sierra Leone, the Founder of the Global Accountability Network, and a retired US Army Judge Advocate.