Military Lawyers Are Not Trained In Immigration Law; DoD Decision Would Exacerbate Shortage of Military Justice-Trained JAGs

 

Senators: Pulling 21 Trial Counsel From Military Courtrooms To Prosecute Immigration Cases Is An Inappropriate Misapplication Of Military Personnel


WASHINGTON – U.S. Senators Joni Ernst (R-IA), Chairman of the Senate Armed Services Subcommittee on Emerging Threats and Capabilities, Kirsten Gillibrand, Ranking Member of the Senate Armed Services Personnel Subcommittee, Patrick Leahy (D-VT), Vice Chairman of the Senate Committee on Appropriations, and Lindsey Graham (R-SC) today wrote to Secretary of Defense James Mattis urging him to reverse his recent decision to send military Judge Advocates (JAGs) to the Southern border to prosecute immigration cases. The Defense Department’s actions would leave active duty posts empty and would involve calling up reservists for this mission despite the DoD’s own recent admission that JAG Corps caseloads are full. When asked about an extension of Special Victims’ Counsels to support survivors of domestic violence and child abuse earlier this year, the Department of Defense stated that expanding the duties of the JAG Corps without adding more personnel would risk “a significant reduction in the quality of services currently provided.” Despite this response, the Defense Department is now sending twenty-one JAGs to the border.

“We are…deeply troubled by the Department’s decision to send twenty-one active and reserve JAGs to the border on temporary orders to prosecute immigration cases,” the Senators wrote. “Clearly, the military needs more, not fewer, lawyers available for its critical military justice practice. Instead, we have now learned the services will be diverting these valuable resources to support a non-military mission. Pulling twenty-one trial counsel from military courtrooms to prosecute immigration cases is an inappropriate misapplication of military personnel. We urge you to maintain these resources within the military justice system.”

The new Defense Department action would divert military resources and legal personnel away from the already heavily burdened military justice system. The DoD did not make it clear what would happen to the caseloads of the active duty JAGs who are being assigned to this new role. JAGs are not trained in the highly complex and nuanced field of immigration law, and the Defense Department also did not make clear the scope of any new training provided to the military before sending them to the border.

The full text of the Senators’ letter is available here and below:

 

The Honorable James Mattis

Secretary of Defense

1000 Defense Pentagon

Washington, DC 20301-1000

 

Dear Secretary Mattis,

We are writing regarding the Department of Defense’s decision to provide uniformed Judge Advocates (JAGs) to support Department of Justice prosecutions unrelated to our military’s missions. For years, Congress has worked with the Department on reforming the military justice system and providing the services with the resources to support the critical mission of promoting justice and maintaining good order and discipline within the armed forces. We are, therefore, deeply troubled by the Department’s decision to send twenty-one active and reserve JAGs to the border on temporary orders to prosecute immigration cases.

Over the past several years, Congress has enacted legislation that will allow the DoD to maintain a pool of trained and experienced military litigators for its most serious criminal cases. Those who have trial experience are desperately needed to serve as prosecutors, special victims counsel and defense counsel. In fact, just last month, the Department made clear that while it realized the benefits of expanding the services of special victims counsel to those who experience domestic violence or child abuse, “this effort would require additional resourcing and end strength and risks a significant reduction in the quality of services currently provided.” Clearly, the military needs more, not fewer, lawyers available for its critical military justice practice.

Instead, we have now learned the services will be diverting these valuable resources to support a non-military mission. While JAGs currently serve as Special Assistant United States Attorneys throughout the country, this occurs in districts with military installations and involves working on cases with a clear military nexus such as theft from a commissary or civilian DUIs on a military base. However, unlike those situations, these twenty-one JAGs are being directed to practice wholly outside of their training, within the vast and complex immigration arena. 

Pulling twenty-one trial counsel from military courtrooms to prosecute immigration cases is an inappropriate misapplication of military personnel. We urge you to maintain these resources within the military justice system.

Sincerely,