BIDLACK | Keep military personnel — especially lawyers — far away from civilian courts

Author: Hal Bidlack - July 6, 2018 - Updated: July 6, 2018

Hal Bidlack
Hal Bidlack

There’s been quite a lot of news lately, from Washington D.C., Denver, and something my soccer-loving friends are calling the “word cup,” or something like that. Hard to get excited about a bunch of words in a cup, but to each his own, I guess. It’s possible I’m misunderstanding.

Anyway, one story that may therefore have escaped your attention was, I believe, pretty significant : the story about the Department of Defense approving a request from the Justice Department to send 21 active-duty military lawyers (we call them JAGs for short) to Texas, Arizona, and New Mexico for perhaps 6 months of duty criminally prosecuting individuals attempting to enter the United States.

The Justice Department is, it seems, having trouble prosecuting everyone they want to under Mr. Trump’s so-called “zero tolerance” effort. Now, there are lots of important discussions to have about immigration policy and how we should proceed. Personally, I think the zero plan is a bit of a zero itself, but people of good hearts can honestly disagree.

But I think we should all be a bit troubled by the idea of military personnel playing roles in civilian legal affairs. I don’t come into this as a naïve civilian – I spent over 25 years on active duty, commanding nuclear missile sites and teaching at the AF Academy, among other assignments. I’m intensely proud to have served and find it to be among the most honorable of professions. That said, we should keep military personnel, especially lawyers, far, far away from civilian courts.

When I taught the Constitution to cadets, I would discuss what makes the military fundamentally different from civilian jobs. After hemming and hawing around the edges of the issue – we wear uniforms, have cool toys, etc. – I would guide the discussion to what makes the military fundamentally different. The simple answer is that stripped of its romance, it is to be willing and able to kill people and blow things up to defend our national interests. All the other things the military does are performed in similar manner by other agencies. Transporting cargo, teaching people to fly jets, sailing ships, all these things and more are done by both the military and the civilian sector. But the core military duty — causing destruction — makes the military different.

As a result, the military has long been considered both special and different by presidents and congresses of both parties. World history has taught us that all too often, as nations turn to fascism, dictatorship, and worse, the military services of said nation are employed domestically. A vile leader (fill in your favorite tyrant here) often uses the military and its tools to suppress either an entire population, or a subset of it that he wishes to blame for the nation’s ills. Hitler (Godwin rule! Google it if you don’t know) is the ultimate example, but on down through Stalin, Pol Pot, Saddam, and now Bashar al-Assad, we’ve seen the world’s militaries employed against the people they were, at least in theory, protecting.

Our nation worried so much about this issue that the Posse Comitatus Act was passed way back in 1878, forbidding the use of military forces for domestic police work. This is the law that prevents military personnel from arresting civilians, among other things. And while this law is a bit archaic, and could use some updating, the core concept of the Act remains both vital and timely: military troops should never be used against civilians in acts of law.

And while Mr. Trump’s team seems to have forgotten that we have a long tradition of giving immigrants (both legal and other) due process upon arrival in the U.S. (because, importantly, we are supposed to be better as a nation than the countries they are fleeing), at least Mr. Trump only had civilian prosecutors going after the folks arriving on our southern border. But now he wants military folks.

I certainly admit that there are not likely to be too many abuses, if any, by the JAGs that are deploying. I’m sure they are fine men and women. But there is an important concept, a slippery slope, and a dike with a leak. Federal troops should not be deployed to operate in U.S. civilian institutions. We (I still consider myself a military man, so please excuse the “we”) are not like other tools. Every American should be nervous to hear that military personnel are working in civilian courts. It’s not that they are bad people. It’s that they are Soldiers, Sailors, Marines, and Airmen. They have a very different responsibility, and it should only be turned outward.

Hal Bidlack

Hal Bidlack

Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.