For the first time in U.S. history, lethal military force has been authorized solely to target drug traffickers—a move that marks an extraordinary assertion of expanded presidential power.
Since early September, the U.S. military has killed at least 32 people in seven reported boat strikes in the Caribbean and five in two strikes in the Pacific—the first time in history that, as a matter of presidential policy, lethal force was used against individuals exclusively for the act of trafficking drugs. The administration’s actions reveal a troubling expansion of claimed executive power and raise profound questions about the legal authority underpinning the attacks. Indeed, the Commander of SOUTHCOM is reportedly stepping down after expressing concern about the legality of these operations. These strikes also appear to represent a historic collapse of guardrails that once helped reduce the risk of unlawful military operations: the independence of lawyers within the Department of Defense and the deference accorded to their advice.
We, the authors, are former executive branch lawyers. Mark, a law professor at Emory University, is a former Navy tactical jet aviator and Navy lawyer (Judge Advocate General’s Corps or “JAG”), and Sarah, a senior analyst at the International Crisis Group, is a former civilian attorney who served in the Department of Defense (DoD) Office of General Counsel. Based on our experience and expertise on the relevant legal issues raised by the strikes, we are deeply troubled by what they might reflect about the current constraints on lawyering within the DoD and the executive branch more broadly.
Many former government lawyers—including Mark—have already offered detailed analysis of the laws applicable to the strikes. A striking number of former government attorneys who have served both Republican and Democratic administrations agree that a red line has been crossed and that the garbled legal justifications provided by the administration are inconsistent with the facts and the law. Based on reporting by the Wall Street Journal and CNN, there are lawyers currently serving inside DoD who also agree and have tried to push back.
Even if we take the administration’s facts and statements at face value, despite credible reporting to refute them, the only conclusion we can reach is that these strikes lack a legal basis. Although reports indicate that the Department of Justice’s Office of Legal Counsel (OLC) has issued a legal opinion justifying the strikes, no such analysis has been shared with the public. This lack of transparency is a serious problem. There is precedent for the executive branch to be forthcoming with its legal rationale, including for military activity. After other contentious military operations—such as in Libya in 2011 and Syria in 2018—OLC eventually released its legal opinions (the Libya opinion was released within two weeks). While those opinions and their underlying legal reasoning were themselves debated, their release compelled the executive branch to “show their homework” and subjected its rationale to public scrutiny. The OLC memo justifying the Caribbean strikes should be released without delay.
What’s more, the current administration’s approach has been to centralize legal authority, discourage dissent, and marginalize career legal professionals—including military attorneys with deep operational law expertise. Reports suggest that Combatant Command and Pentagon lawyers were excluded from meaningful review of the Caribbean strikes, which, if true, would be a troubling departure from long-established practice. This sidelining reflects a broader pattern that predates the Trump Administration but has only accelerated: a “post hoc” approach to national security lawyering—where legal reasoning is developed after operational decisions are made, often without the benefit of full interagency legal review.
Career government lawyers normally provide thorough legal analysis of executive branch national security actions. Without the input of legal subject matter experts, the political appointees who tend not to have the same expertise are more likely to get it wrong—or worse, willingly bend the applicable law “beyond recognition” to achieve political ends. The experts include Department of Defense civilian and military lawyers, including those assigned at the highest command levels. When they are marginalized or fear that their careers depend on aligning with political preferences rather than professional ethics, the guardrails that constrain the use of force begin to crumble.
Below, we offer a high-level description of the typical process of advising on strikes like these. We then analyze why that process might not be working now. Though we do not claim to know what any government civilian attorney or JAG is facing in this moment, we offer some insight into just how high the stakes are for many of them. We urge Congress to do more to reinforce the guardrails that are vital to the legitimacy of national security decision-making.
How Civilian and Military Lawyers Advise on DoD Operations
Ensuring U.S. military operations comply with the law is largely dependent on following established legal processes. Time-honored channels of review help presidents, commanders, and troops guard against illegality and ensure more successful operations that can withstand public scrutiny. Modern instances in which regular processes were not followed have led to flawed legal analysis that put U.S. servicemembers at risk of criminal liability and stained the country’s reputation. In light of the widespread view that these strikes are illegal, we can only conclude that these channels of review are no longer functioning as intended.
When a president intends to use military action against a certain person or group, they typically request a “concept of operations” or CONOPS from the relevant Combatant Command. This CONOPS describes the mission, underlying objective, resources, capabilities, and forces to be utilized. Depending on the complexity of the operation, multiple legal reviews may be necessary. Historically, the National Security Council (NSC) Office of the Legal Adviser has brought together relevant lawyers to review such operational plans. The NSC interagency lawyers’ group, known as such since the George H.W. Bush administration but with its origins dating back to the Kennedy administration, generally helps to ensure that DoD operations have a firm legal foundation and that necessary coordination with other relevant agencies can be undertaken before the operations take place.
Those in the working group normally include the most senior lawyers from the NSC, DoD Office of General Counsel, the Legal Counsel to the Chairman of the Joint Chiefs of Staff, the Department of State, the Department of Justice, the Office of the Director of National Intelligence, and the CIA. These counselors—relying heavily on the expertise of the career lawyers in their offices and career lawyers and JAGs detailed to the NSC—advise on a range of legal matters. First and foremost, they ensure there is a sound legal basis under both domestic and international law for the operation, and that any human rights law, law of armed conflict (LOAC), or other applicable legal obligations (such as domestic law reporting requirements) are met. This generally means assessing the international law governing the resort to force (or the jus ad bellum) – which requires high-level decisions that are not delegated to the operational level: Is there a valid claim of national or collective self-defense? If so, would the proposed operations be necessary and proportionate? It also means assessing whether the president has statutory authority from Congress or unilateral authority under Article. II of the Constitution to undertake the operations.
Different agency lawyers may take the lead on analyzing these key issues, but coordination among them is ensured through this process. For example, the State Department generally takes a leading role in analyzing international law issues (given its deep and broad expertise in international law) and, in close coordination with DoD General Counsel, war powers issues, and will generally have a leading role in notifying both Congress and U.S. partners and allies as needed. The Intelligence Community, which may have equities in the operation, is also often crucial in these discussions. And the Department of Justice will likely take the lead in analyzing constitutional law questions. With the expertise of each of these agencies at the table, key legal interpretation decisions, memorialization of those decisions, planning for notifications required by law (or otherwise), and deconfliction across agencies will put the operations on the strongest possible footing.
The lawyers’ group review may also include certain ad hoc action items when a CONOPS presents novel legal issues or the adoption of a new U.S. government legal position.
JAGs—many of whom specialize in the law of armed conflict and operational law—play an important role in ensuring that all orders comply with both domestic and international law, providing input throughout the military planning process. The service they provide senior commanders in charge of the operation is so critical that congressional statutes prohibit any military or civilian member in the Department of Defense from interfering in their legal advice. Military legal reviews are critical to fleshing out any legal concerns before operations are authorized and before and after orders are issued down the chain of command. Even for fast-moving and quickly evolving operations, JAGs in the relevant Combatant Commands have in recent decades been able to consult closely with lawyers in the Pentagon to ensure certain any use of force has a sound legal basis and is consistent with the parameters of what was authorized in Washington. Kinetic operations that authorize lethal force are, for good reason, closely scrutinized by JAGs.
Given the strong views of the larger legal community, it’s hard to imagine that civilian career attorneys and JAGs would have been comfortable with endorsing the Caribbean strikes. If they were consulted, was their legal advice ignored during the process of CONOPS development and the ultimate approval process? If they were not consulted, why would administration officials have sidelined their expertise? Were questions about the underlying legality of the operation raised by component legal counsel at relevant command levels, including the Combatant Command and their subordinate command levels? If so, were those DoD lawyers and JAGs disregarded? Under what reasoning?
While the internal legal review system is by no means foolproof, and we do not know whether the relevant military and civilian career attorneys participated in the planning for these strikes, the public actions taken by this administration offer some hints as to possible process fouls.
Centralization and Apparent Suppression of Legal Advice
Several policies adopted and actions taken by the administration demonstrate its preference for siloed decision-making. Not only do such policies, practices, and processes make it easy to avoid unwanted legal advice, they also increase the likelihood that attorneys who raise legal objections are intentionally sidelined.
First, on February 18, President Trump signed Executive Order (EO) 14215, “Ensuring Accountability for All Agencies.” Section 7 says:
“The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law…” (emphasis added)
The EO appears to require executive branch lawyers to never offer any interpretation that contravenes the President or Attorney General, even if they determine the President and Attorney General’s interpretation to be wrong, i.e., unlawful. Not only does such a mandate on government lawyers directly conflict with their ethical obligation to exercise independent judgment and offer candid advice, as well as their oath of office to uphold the Constitution, it also appears intended to silence attorneys who would otherwise speak out against what they determine to be illegality coming from the White House or the Department of Justice. By declaring that executive branch lawyers must conform to the legal interpretations of the President and Attorney General, the order effectively eliminates the ability of counsels—including those at the Department of Defense—to provide independent assessments. In practice, we worry that this EO further blurs the line between law and politics.
Second, Secretary of Defense Pete Hegseth has taken several actions that appear designed to suppress legal dissent. Days after the executive order was issued, he fired the Judge Advocates General (TJAGs) of the Army and Air Force (The Navy TJAG position, vacated in late 2024, already had been filled by an acting officer.) Recent reporting by CNN describes how the Army TJAG had raised concerns about the legality of some Trump policies before being fired. CNN describes how he was sidelined by Charles Young, the acting General Counsel at the time, now nominated to be the Army General Counsel. Shortly after firing the TJAGs, on cable news, Hegseth described JAGs as “roadblocks” (he had already lobbed a gross insult at them in his book). He then commissioned his personal lawyer to overhaul the way JAGs advise on the law of war and prosecute war crimes. At the time, we underscored the extraordinary nature of these firings, how they likely interfered with the statutory prohibition on interfering with the ability of JAGs to give independent advice, and how they might impact any future illegal orders.
And third, the administration has through acts of retribution, sent a chilling signal toward anyone who might potentially offer diverging views (e.g., the demotion of DOJ attorneys for working on cases the president disagreed with).
Presidential Power Emboldened by the Supreme Court’s Immunity Expansion
The administration could be emboldened to take these actions due to the Supreme Court’s decision in Trump v. United States, which placed extraordinary burdens on civilian and military officials and the lawyers advising them. In its 2024 decision, the Court held that the president has absolute immunity for acts that fall within his “conclusive and preclusive” authority (which arguably includes commander-in-chief powers) and presumptive immunity for all other official acts. As retired Air Force Major General Steven Lepper and Eugene Fidell explain here, while this kind of immunity disincentivizes presidential compliance with the law, questions remain about the precise scope of whether that immunity applies to people downstream from presidential decision-making. Ironically, this shifting and uncertain legal terrain has increased the importance of legal advice because commanders and troops will need JAGs to help them address the likely increase in orders that skate up to or past the legal line.
The Stakes of Sidelining JAGs and Career National Security Attorneys
The above illustrates just how significant the pressure that military and civilian lawyers are under in this administration. If they raise objections to what they determine to be clearly unlawful actions, they could face personal and extreme repercussions, including demotion, firing, or, for military lawyers and the commanders they are advising, court-martial (even if those measures would be without merit or unlawful). These are challenges unprecedented in modern history for the military and legal professions in the United States.
History has demonstrated that sidelining JAGs and DoD civilian lawyers in operational matters or preventing them from giving candid advice can lead to disastrous results. The decision to ignore JAGs and the Navy General Counsel during the early 2000s “torture memo” debates was a grave and short-sighted mistake that harmed U.S. credibility domestically and abroad for decades. Not only did it cause lasting damage to the United States’ reputation and moral authority, but it also led to years of costly litigation and internal tensions. Congress—a very different body today than at that time—responded quickly by bolstering the role of JAGs, amending several statutes to prohibit interference with the ability of JAGs to provide independent legal advice, and elevating the rank of the highest JAGs of the Army, Navy, and Air Force from two to three stars.
As underscored by Professor Dan Maurer and Professor Geoffrey Corn, both of whom are former JAGs, the sidelining of military legal advice does not bode well for the legitimacy of U.S. military operations. By excluding DoD’s career legal professionals, including JAGs, from operational planning, the administration undermines a core strength of U.S. national security law: the tradition of principled, independent legal advice for the armed forces. That tradition is essential for maintaining trust within the military’s ranks and being worthy of the trust and confidence of the people of the United States.
Congress has an important role to play in helping to preserve long-standing legal guardrails. That includes requiring—as a matter of law, instead of merely authorizing—that all TJAG positions be at the three-star level so that their seniority ensures they are in the room for the most sensitive discussions. It should also include pushing back forcefully on illegal orders, continuing to request the release of the OLC memo from the Department of Justice, and raising awareness of how these strikes create a high risk of escalation in the region that could have far-reaching consequences in the United States and abroad, especially given the apparent absence of legal limits. And Congress must make clear that the president cannot treat criminal suspects as combatants. On a bipartisan basis, legislators should pass a joint resolution under the War Powers Act barring President Trump from using military force against boats in the Caribbean Sea—reaffirming that these strikes have no basis in the law. At least two Republican Senators (Rand Paul and Lisa Murkowski) have already supported such a measure, but it failed in the Senate without more Republican votes.
In sum, whatever is happening in the executive branch is likely not going to be remedied by the currently serving civilian and military attorneys alone. It is up to Congress and the public to do more to address the unprecedented, dangerous pressures imposed on public servants and defend the guardrails that protect both U.S. forces and U.S. democracy.
