On Sept. 2, President Trump announced that the U.S. military had struck a Venezuelan vessel allegedly carrying narcotics, killing 11 people. The strike—justified as “self-defense” as part of the U.S.’s counternarcotics strategy—drew sharp criticism. It has since been followed by two other U.S. strikes on Venezuelan vessels. Most experts agree that Trump’s controversial order violated domestic criminal law and international human rights law and exceeded the president’s Article II foreign relations and commander-in-chief authorities, constituting what Marty Lederman calls an “indefensible breach of the fundamental norm against targeting civilians.” But the attacks also raise serious questions about the availability and effectiveness of government lawyers throughout the chain of command who would have—or should have—raised red flags before this operation commenced.

https://www.lawfaremedia.org/article/jags-alone-can-t-defend-rule-of-lawIn an earlier Lawfare article, I wrote:
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[N]o military lawyers outside the Pentagon—the judge advocate officers ranging in rank from junior lieutenants to the senior colonels (Army, Air Force, Marines) and captains (Navy, Coast Guard)—assigned to operational units and bases, posts, camps, and stations worldwide, can serve as adequate bulwarks against the rapid erosion of the Defense Department’s commitment to the rule of law.

As a former judge advocate officer, I have grown increasingly concerned in the six months since I wrote it, and especially with this recent action. When those bulwarks are removed or ignored, force is used in criminal ways that delegitimize the armed forces.

The Tren de Aragua boat attack has been framed by the administration as if it is legally equivalent to a strike on a terrorist group in a foreign country during military operations sanctioned by Congress. That framing raises serious questions about the availability and effectiveness of government lawyers throughout the chain of command who would have or should have raised red flags before this operation commenced. Having advised operational headquarters on the law of jus ad bellum and the laws of armed conflict (LOAC, jus in bello), and having taught those subjects, as well as international human rights law, at both West Point and the Army’s The Judge Advocate General’s Legal Center and School, my focus is on a large subset of those lawyers: judge advocates general (JAGs). JAGs are commissioned military officers licensed to practice law and assigned to positions where that knowledge, skill, and expertise is used to counsel commanders and represent the interests of the Department of Defense, ensuring the former comply with applicable laws and regulations when executing missions for the latter.

If these lawyers were kept in the dark during the strike, it would reflect a serious breach of a norm (and established administrative and military doctrinal processes) meant to ensure U.S. military operations are vetted for legality constantly. If they did review the strike and determined it was lawful under domestic and international law, I believe (and a great many others do too) that they were clearly wrong. This leaves open several possibilities: They were not consulted; they were ignored; they succumbed to groupthink despite a duty for independence; or similarly, they were directed to accept a high-level legal conclusion, depriving them of the opportunity to exercise independent legal judgment.

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