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May 29, 2025 05:25-06:27 - CSPAN
01:01:58
Discussion on Trump Administration Firing JAGs
Participants
Main
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rear adm james mcpherson
45:27
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Speaker Time Text
unidentified
Today, Air Force Secretary Troy Mank will deliver the commencement speech at the U.S. Air Force Academy.
The Secretary is an Air Force veteran and was sworn in earlier this month.
Watch his speech live at 11 a.m. Eastern on C-SPAN.
C-SPAN Now, our free mobile app, or online at c-SPAN.org.
Retired Rear Admiral James McPherson is a former Navy Judge Advocate General, or JAG.
He discussed the Trump administration's recent firings of JAGS and the chair of the Joint Chiefs of Staff, General Charles C.Q. Brown.
He was interviewed by former State Department legal advisor John Bellinger.
The American Bar Association hosted the conversation in Washington, D.C.
Okay, ladies and gentlemen, let's come to order.
We'll get our program started as soon as we have the attention of the room.
Very good.
So my name is Stephen Preston.
I am chair of the ABA Standing Committee on Law and National Security.
As many of you know, the Standing Committee is the organized bar's leading forum for addressing issues at the intersection of law and national security.
We do that through a variety of manners, a variety of means.
I recommend you check out our website at AmericanBar.org.
One of the ways in which we address issues of the day is through our widely acclaimed podcast, National Security Law Today, which I commend to you.
Another way in which we address the issues of the day is through our luncheon speaker series, of which this is the latest installment.
So our topic today, as I said earlier, is the role of the Judge Advocates General in providing legal advice to the military.
So we look forward to a discussion of the issues raised by the recent dismissal of the Judge Advocates General of the Army and the Air Force.
For that purpose, we're very pleased to have with us a former colleague and old friend, Rear Admiral Jim McPherson, United States Navy, retired.
Jim's long career in uniform led to service as the 39th Judge Advocate General of the Navy.
More recently, he was appointed to senior civilian positions at DOD in the first Trump administration.
We're also very pleased to have another old friend with us, the Honorable John Bellinger, who will give Admiral McPherson a proper introduction and then moderate the discussion for us.
John, of course, has had a distinguished career in national security and foreign relations.
He previously served as legal advisor to the National Security Council and then as legal advisor for the Department of State.
That was during the administration of George W. Bush.
He is a longtime partner of the law firm of Arlen Porter, where he heads their global law and policy group.
And with that, John, I'll turn it over to you.
Thanks, Stephen, and it's great to be back before the committee.
Since Stephen didn't talk about his own law firm, I hope that you all will at least look at the decision that came out from Judge Leon yesterday.
If you didn't see it on the defense of the rule of law, please go read it.
Great to be back.
I think you all know what I will say, just a couple of more words about Admiral McPherson.
One thing I've learned about our National Security group is that everybody has held multiple interesting jobs.
It's what makes National Security so interesting.
And Jim is no exception.
I have known him for 21 years.
He was the Judge Advocate General of the Navy when I was first legal advisor at the National Security Council and then legal advisor with the State Department.
And we worked very closely together.
He was a just tremendous advisor to me on the difficult issues of detention and Guantanamo and military commissions.
The one thing we did not get done together, which I still hope we will get done, is to get the law at the sea treaty through the Senate.
Apropos of the topic that we're about to talk about, though, I want to give not only a shout out to Jim, which I'll do, but just to all the JAGs in the room, I really have to say the greatest heartfelt thanks.
I could not have done either my job as NSC legal advisor, and I was in the Situation Room on 9-11.
My first calls were to the JAGS.
I got an intense training on the laws of war, the Geneva Conventions, and I just honestly cannot thank you all enough through all the services.
So a heartfelt thanks to those people here and to those who are now serving.
So Jim, as you heard, served as the Judge Advocate General of the Navy from 2004 to 2006.
He then retired after 27 years in the Navy.
You may wonder why it was 27 years.
That's because, little known fact, before he started the Navy, he served for three years in the Army before he went to college as an Army military policeman.
So he had his 30 years in before he retired.
He then became the executive director of the National Association of Attorneys General, which Jim told me at the time was often referred to as the National Association of Aspiring Governors.
Probably about the most political organization you could have split between red states and blue states.
It will tell you something about Jim McPherson that he could get along with all of them.
It was remarkable to me.
He had me in, come speak to them at one point to evangelize about why treaties are important to the country.
But then as you heard from Stephen, and this is really significant and it sets the stage for today, like many military officers in the first Trump administration, he answered the call from Secretary of Defense Mattis to come back in to the Defense Department, first as the general counsel of the Army, then as the acting undersecretary of the Army, and then as the acting Secretary of the Navy.
I have joked to Jim that he does not know which side of the Army-Navy game to sit on, and he told me that he sits on both sides.
So thank you.
Thank you for your service, and that sets the stage for what we're going to talk about today.
This is actually a reprise of a discussion that Jim and I had at the Council on Foreign Relations shortly after Secretary of Defense Hegseth dismissed both the Air Force and the Army TJAGs, saying that they were ill-suited for their jobs and that he wanted lawyers who would not challenge the instructions of the Commander-in-Chief.
We had a good discussion then.
Stephen Preston thought that is worth reprising here today.
So I can promise you you will have some thoughtful and important remarks.
So, Jim, of course, I will end with the most important part, which is he is our former chairman of our committee.
So, welcome back, and the floor is yours.
rear adm james mcpherson ▲ ● ▼
Thank you, John, and thank you, Stephen, for asking me to do this.
It's been a privilege and a pleasure.
And thank you, John, for the kind introduction.
As John said, we've been friends and professional colleagues for over 20 years.
And he called me, he's also the senior fellow for international and national security law at the Council for Foreign Relations.
And in that role, he asked me if I would come and do a sort of a roundtable discussion on what's going on in the JAG Corps.
And I was happy to do that.
The reviews for that came out, and so John and I have decided to take the show on the road.
This is our first stop, so anybody out there want to book us, please feel free.
But a thank you to Holly McMahon.
She truly is the heart and soul of the committee, and nothing gets done that she doesn't have a hand in and is guiding it.
She makes it look easy.
It is not, I assure you.
So, thank you, Holly, for putting this on today.
So, I'm of an age where I can become an emeritus.
And one of the privileges an emeritus has is notes that they get to refer to in any discussion that they engage in.
So, I'm going to use notes today.
I hope that's okay.
We have to clear up one administrative matter that is near and dear to my heart, and that is Article 88 of the Uniform Code of Military Justice.
I know many of you in here are familiar with that.
That's the section that makes it punitive if I say anything contemptuous about our current Secretary of Defense, our President, and a whole lineal list of other individuals.
So, as a retired officer, I am subject to the UCMJ.
You don't really get retired pay.
It's called retainer pay.
And I can be recalled at any time for any purpose to include standing before a court-martial charged with violation of Article 88.
So, when I spoke at CFR, it was off the record.
There was no media present, and so not for attribution.
Very different from today.
The media is here.
Thank you for covering us, and thank you for all you do to keep our democracy vibrant.
And the tape will be posted on the website, I understand.
So, a couple of things.
Number one, if you think you heard that I used contemptuous words concerning our current Secretary of Defense, you are wrong.
You didn't hear me correctly.
If you think you heard me correctly, I misspoke.
If you think I didn't misspeak, I did not have the specific intent to use contemptuous words.
And if a court is to rule that that article does not require specific intent, only general intent, then I was suffering from a mental disease or defect.
I think that about covers it, John.
Are we good with that?
unidentified
We've got a lot of lawyers who will defense.
rear adm james mcpherson ▲ ● ▼
Thank God.
Thank God.
And the second administrative matter is: I look around the room and I see a lot of familiar faces, familiar faces that used to wear the uniform of a JAG and their respective services.
So many of you in here know more than I do about this subject and particular aspects of this subject.
I simply ask that you be gentle.
Thank you very much.
Okay, let's roll.
Who are the JAGs and really how many are there?
So the answer to who are the JAGs is kind of easy.
JAGS are licensed attorneys who are wearing the uniform of one of our six services.
We also have, by the way, reserve JAGs who wear a reserve uniform.
Every one of those six services has reserves.
And oh, by the way, we also have National Guard JAGS.
National Guard JAGs are in the Army and the Air Force.
And they also wear the uniform, and they also practice law in the military as a JAG now and then.
We also have support staff, civilian support staff, and uniform support staff that generally do the administrative things of our JAG organizations, and there are paralegals and other things.
And oh, by the way, we also have civilian attorneys in every one of the service JAG organizations that are employed by the JAG that answer to the JAG.
They generally do more of the business law stuff.
In the Navy, they would do claims and they would do contracts now and then.
So it's important to remember, and we'll get to the distinction between a civilian attorney and a uniform attorney working in the services.
So critics often paint a picture that there's a proliferation of JAGs out there.
They're everywhere you turn.
They're at every level of the organization.
There's way too many of them.
I don't want to bore everybody with a lot of statistics, but I think it's important and interesting just to know the numbers real quickly.
So, and understand that the numbers of active duty JAGs change on probably a monthly basis.
I don't include the National Guard or Reserve JAGs in these numbers because those numbers change minute by minute.
So, the Army has about 1,850 active duty JAGs.
That's about 0.4% of the end strength of the Army.
End strength, what is that?
Just a quick sidelight.
So, in every National Defense Authorization Act for every year, Congress tells the services how many people they can have on active duty on 30 September.
That's an important date.
They can go above that number, but on 30 September, end of the fiscal year, you have to have this number.
Needless to say, the people that work in human relations and personnel are scrambling at the end of September to get that number, usually down to the right number.
Recently, they've not had problems with that because of retention issues, but end strength is an important date in the life of the services.
So, Army has 1,850.
Navy has about just over 1,000, again, 0.3% of their end strength.
The Air Force, which includes the Space Force, has 1,300, and that's about 0.4% of their end strength.
Marine Corps has 595, that's 3% of their end strength.
And the Coast Guard, which is the sixth service, uniformed service that has JAGs, has 257, or about 0.5% of their end strength.
Now, what does that mean?
So, we have a little over 5,000 active duty uniformed JAGs in the services.
Now, that's about, again, 0.4% of the total active duty service members at any one time.
I wondered what the relationship of that was to attorneys writ large in our country.
And what I discovered was that compared to the population of 18 and above, there are about 0.4% attorneys, a lot less than what I thought.
But as you can see, the statistics there, the percentage is just right on the target for the uniformed services as well.
So, in addition to the uniform JAGs, every one of the three departments have general counsel.
As John said, I served as the Army General Counsel for about a year or so.
They are civilian attorneys who work for the general counsel, who is a presidential nomination, Senate confirmed, and they generally are characterized as the business attorneys of the three departments.
Their portfolios would include acquisitions, logistics, installation management, environmental fiscal ethics, and administrative law.
As you can see, there's an overlap with the uniform JAG Corps that at times causes some friction.
Sometimes that friction is on the increase, sometimes it's on the decrease.
I was very fortunate, and when I was the Navy JAG, Mr. Alberto Mora, who many here know and the committee knows very well, he was the general counsel of the Navy.
And my first day on the job as the JAG of the Navy, I paid a courtesy call upon Mr. Mora, obviously, and he said to me, Jim, I view us as partners in the Navy law firm.
And I appreciated that very much.
Now, I obviously knew he was the senior partner, but I appreciated the sentiment that went along with that.
He included me in decisions he made.
He included me in issues that were raised.
And he included me in his major effort, which is regarding detainee treatment at Gitmo.
And as most of you, I think, know, in 2006, he received the John F. Kennedy Profiles and Courage Award for actually bringing to light the treatment of detainees down in Guantanamo.
So, how do you become a JAG?
There are three ways.
Most of the services recruit their JAGs in their student program.
That is, they recruit people in their first and second and sometimes their third year of law school.
They join the service in reserve status and they are not in active duty.
In the summertime, they can go on active duty and do internships or those sorts of things.
But that's the majority of the new JAGs come in through the student program.
Graduate from law school, pass a bar exam, come on active duty.
They also do direct commission.
Direct commission is where an attorney who's already practicing volunteers and comes on active duty.
Those are rare, and they usually use those to fill out an end strength, as I talked about earlier.
And the final way is a little bit of a secret.
And I'm sure if the secret gets out, that the current administration may put an end to it, and that's called Law Education Program, a LEP.
I think we have one or two former LEPs in here.
LEP is a line officer that applies for the program.
All three services, and the Marine Corps, have LEP programs.
And what happens is if you're selected, it is highly competitive.
Thousands of volunteers, believe it or not, if you're selected and the services select, Navy selects between five, six, or seven a year, Navy sends you to law school and pays for it.
You remain on active duty, getting full PAM benefits, and you continue to receive promotions based upon your longevity.
And when you graduate from law school and pass the bar, you come into the JAG Corps debt-free.
Competition to get in the JAG Corps, the competition used to be fairly strong.
Between probably 85 and maybe around 2015, just before COVID hit, the competition was very strong.
That competition has fallen off a little bit, only because of issues regarding recruiting.
But more importantly, COVID caused every one of the services to take a pause in bringing people on active duty, and that is still being felt.
So, what are the practice areas?
What is it that a JAG does?
In their first few years, most JAGs do military justice, court-martial work.
They're litigating, they're prosecuting, and they're defending service members before a court-martial.
Again, in most of the services, they'll do that for three to five years, and once they've completed that, they'll never see a courtroom again.
That's an exception, is that we have JAGs that do appellate work.
Obviously, you can appeal a court-martial conviction, and the appellate JAGs actually handle that.
But you'll do heavy military justice for the first part of, first few years of your career, and then you go on off and you can specialize in what you want to do.
JAGs also do legal assistance, a lot of legal assistance.
That's assisting service members who have problems in the community illegal-wise, whether it be a landlord-tenant relationship, they're behind in their car payments, any number of things that they can seek legal assistance from a JAG.
Most of the services have what's called extended legal assistance, and what that is, is a civilian attorney licensed to practice in the state where they're sitting, working for the JAG, actually represents the service member at certain civil matters.
Mostly landlord-tenant disputes, those sorts of things.
Contract law, okay, here's one of the distinctions between the services.
The Navy and the Marine Corps do not do contract law.
The Army and the Air Force do contract law and acquisitions.
That is a big departure.
There's a large number of Army JAGs who do contract and acquisitions.
As I said, the Navy and Marine Corps JAGs don't do that at all.
We don't do contracts.
For some of us who didn't do well in contracts in law school, that comes up as a blessing.
Environmental law and national security law, as was mentioned.
In the area of national security law, generally that's specific to law of armed conflict, international law, cyber law, intelligence, and what's called information operations.
So mid-grade to senior JAGs that are doing national security law are usually located with a combatant commander or an operational commander or headquarters.
That's generally the level that you'll see JAGS involved in rules of engagement or national security law.
There are a couple unique practice areas, as you would imagine, to the maritime services.
The Navy and the Coast Guard, they do law of the sea.
John mentions the Law of the Sea Treaty.
I can remember going to the Hill and advocating for the Law of the Sea Treaty back in 2005.
And the major roadblock to the Law of the Sea Treaty was there was a rumor going around that the Navy would have to paint all its gray hulls blue.
Needless to say, that's not true, but it's very curious that the Law of the Sea has never been ratified by this country.
Also, maritime law and admiralty, which is an interesting practice area that the Navy gets involved in.
So a couple of important distinctions with regard to the Marine Corps and the Coast Guard.
So judge advocates in the Marine Corps and the Coast Guard, first of all, they're not in a Corps.
They're just called judge advocates.
There is no JAG Corps in the Marine Corps or the Coast Guard.
As a matter of fact, there was no JAG Corps in the Air Force until about 2003 when the Air Force changed its legal department to JAG Corps.
Back to the Marines and the Coast Guard.
They are line officers first.
They are regarded as line officers who happen to be lawyers.
And what that means is that they will do a tour of duty or two, an assignment or two as a JAG or judge advocate, and then they'll go do a line assignment as a line officer.
For the Marines, that fits very well because one of their mottos is, every Marine a Rifleman.
A Marine judge advocate in law school during one of their summers will go through 10 weeks of officer candidate school at Guantanamo.
Upon graduation from law school and passing the bar, they'll go to the justice school in Newport, Rhode Island, and then they'll go to the basic course, six months in Quantico, where they qualify as an infantry officer.
Most of the time when they do what's called a disassociated tour, when they're not doing a judge advocate tour, they'll do an administrative tour.
That's not always the case.
I had colleagues in the Marine Corps colonels, one of which was the Provost Marshal at Camp Pendleton, and the other one was the commanding officer of the Marine Barracks, Guantanamo.
So they'll actually do line officer tours of duty as a judge advocate.
The same thing for the Coast Guard.
The best example right now is the current Coast Guard acting commandant is Admiral Kevin Lundy, who this committee knows very well.
He is the Vice Commandant of the Coast Guard and the acting commandant, and he has had more line assignments than he has judge advocate assignments as a Coast Guard attorney.
The other organizational difference, which some think is trivial, but having been there and experienced it, is very important.
The Army and the Air Force and the Marine Corps and the Coast Guard JAGs work for their chief of staff.
In other words, the T-JAG of the Army, the T-JAG of the Air Force, they answer to their chief of staff.
They're reporting senior as their chief of staff.
They are on the chief of staff part of the Department of the Army and Department of the Air Force.
In the Navy, the JAG, why, worked for the Secretary of the Navy.
The JAGs in the Navy are assigned to the Secretariat, not the Chief of Staff.
Why is that?
Well, back before 1947, there was the Department of War and Department of Navy.
And when the National Act took place that created DOD and Department of War went away and Department of the Navy became part of DOD, there were several anomalies that Navy brought with them into DOD, and that was one of them, where the Navy JAG actually works for the Secretary of the Navy.
I had the privilege of working for Secretary Gordon England, a true gentleman.
I have to tell a quick war story.
I get to do that because I'm an emeritus.
So, A, detainee things are going on there, a huge issue.
Commissions are a huge issue.
We're wrestling with those almost daily.
One day I'm in the Secretary's outer office, and he hears me out there, and he comes out and he says, say, Jim, I said, yes, sir, Mr. Secretary.
He said, you know, I was at the White House the other day, and a fairly high-ranking person said to me, you need to get control of your JAG.
And he said, I don't know what you're doing, but don't stop.
As I said, I enjoyed working for Gordon England a whole lot.
So, why have the JAGs become the center of attention?
Well, it was called the Friday Night Massacre, 21 February, 2025.
That evening, after normal working hours, the President fired General C.Q. Brown, who was the chairman of the Joint Chiefs of Staff.
He had been the chairman since 2023, obviously nominated to that position by President Biden.
Less than, oh, about an hour later, the Secretary of Defense, who had been in the job less than a month, he put out a memo.
Well, first of all, he fired the CNO, who is Admiral Lisa Franchetti, the first female CNO of the Navy, and he fired the Vice Chief of the Air Force, General Slife.
And he put out a memo saying, I'm calling for nominations to the position of senior leader of the Army, Navy, and Air Force JAG Corps.
In other words, the T JAGs, if you will.
T-JAG is not a term the Navy uses, but I'll use that from now on because it's easy to say and we'll all understand what it means.
But there was an exception with regard to the Navy, and this is the exception was this.
The Judge Advocate General of the Navy was Vice Admiral Chris French.
He took office in the summer of 2024, the same time that Rear Admiral Leah Reynolds became the deputy JAG.
After the election, Chris French was General Milley's legal counsel at Joint Chiefs of Staff.
And after the election, he felt that since the President hadn't extended the pardon to him, he felt he would be at risk if he remained on active duty for retribution.
And so he took the very difficult step of resigning as the JAG and retiring in December of 2024, which meant that the deputy, Rear Admiral Leah Reynolds, became the acting JAG.
Well, when the Secretary asked for nominations for all the three services, obviously the two sitting JAGs of the Army, Lieutenant General Joe Berger, who had six months in the job, and Lieutenant General Charles Plummer, who had two and a half years in the job with the Air Force, they were essentially fired.
But Leah Reynolds, Rear Admiral Leah Reynolds, was not.
She remains the acting JAG.
At the time that this action was taken, the Navy had already put together a board that was going to select another JAG.
That obviously went away, and we'll talk about that in a few minutes.
So what were the reasons that Zeph gave for his action in essentially firing the three service JAGs?
On the 23rd of February, a Sunday, he gave an interview on Fox News.
Now, there's a surprise.
And here's what he said, and I will quote, ultimately, we want lawyers who give sound constitutional advice and don't exist to attempt to be roadblocks to anything, anything that happens in their spots.
What we know about those JAGs, they're called TJAGs inside the military.
Traditionally, they've been elected by each other or chosen by each other, which is exactly how it works, often with a chairman as well.
Small groups of insulated officers who perpetuate the status quo.
Well, guess what?
That status quo hasn't worked very well at the Pentagon.
It's time for fresh blood, close quote.
The next day, at a media event, he was asked the question, why did you fire the service JAGs?
And here's what he responded to that.
The current TJAGs were not well suited to provide recommendations when lawful orders are given.
Unquote.
Despite a lot of opportunities since then, he's failed to point to any evidence that would support the notion that the TJAGs somehow failed in their duties or in their responsibilities.
And with regard to the senior officers, that is the chairman, the CNO, and the vice chief of staff, here's what he had to say.
The president has the right and duty to have in place officers he has trust and confidence in.
Well, that's true.
He does.
There's a little bit of historical perspective here.
It was my experience while on active duty, seeing it firsthand, that when there was a change in administration party affiliation in the White House, the incoming party, the appointees, the presidential appointees, they didn't trust the senior uniformed service leaders much at all because they felt that they were promoted to those positions in the previous administration.
I saw that firsthand when Bush replaced Clinton.
And one of the senior political appointees in the Bush administration took me aside one day and he said, you know, Jim, we were told that we shouldn't trust any of the admirals that were promoted to admiral during the Clinton years because they're tainted.
What do you think about that?
And I tried to disabuse him of that notion, letting him know that, no, they're professional military officers.
They're not politicians.
They have no political leanings, if you will.
I'm not sure I convinced him.
That same sentiment is obviously held by the current administration, but this is the first administration that actually took action based upon that misperception and actually is firing senior officers because they were promoted to those positions by the previous administration.
I want for just a second to try and dissect what the Secretary meant in those statements.
First of all, his mindset.
I listened to his testimony before the Senate Armed Services Committee when he was testifying at his nomination, and he used the term jagoffs.
I'm sure some of you have heard that bantered about.
It's offensive.
It's a crude reference.
I think we can all conjure up what it probably means.
But in response to Senator Reed pressing him, Senator Reid said, you use the term jagoff.
What does that mean?
And you can see him become visibly embarrassed.
And he pauses and he halts.
And then he says, oh, I think we all know what that means, Senator.
And Senator Reed responded, no, some of my colleagues may not know what that means.
Please tell us what you meant by that term.
And here's what he said.
They are officers who place their own career, their medals, their status about sound advice to the warfighter.
I would say he collected himself fairly quickly because the term jag off is a disgustingly crude term.
I first heard it when I was on active duty as a young lieutenant.
It was offensive then.
It's offensive now.
And to hear your secretary call you a jag off, I cannot imagine a greater morale buster than that.
The secretary has written six books.
The most recent was called The War on Warriors.
Every one of his books is critical of the rule of law in regard to operational settings.
His most recent book, as I said, War on Warriors, was published in 2024, just last year.
And here's what he said about lawyers.
I'm quoting from his book.
Modern fighters face lawyers as much as enemies.
Let me say that again.
Modern fighters face lawyers as much as enemies.
Our adversaries should receive bullets, not lawyers.
If we refuse to do what is necessary, that is precisely why wars become endless.
And here's what he wrote in that book about the Geneva Conventions.
We are just fighting with one hand behind our back, and the enemy knows it.
If our warriors are forced to follow rules arbitrarily and asked to sacrifice more lives so that international tribunals feel better about themselves, aren't we just better off winning our wars according to our own rules?
Who cares what other countries think?
As a Fox commentator, which is the job he had before he became the secretary, he was keen on three different court-martial cases that were currently in the media then, in the media because he put them in the media.
He frequently had family members of the accused on his shows, wives, parents, friends, who talked about how their loved one was railroaded by the system, and that system was controlled by the JAGs.
The three were First Lieutenant Lawrence, who was convicted in 2012 of war crime-related offenses, murder of two civilian Afghans.
And he served a sentence of 19 years at Fort Leavenworth.
Major Goldstein, again in Army Special Forces.
In 2016, he was charged with war crimes-related offenses, murder of an Afghan farmer.
He never got to court-martial.
And finally, was Chief Gallagher, the Navy SEAL.
In 2019, he was charged with war crime-related offenses.
Yeah, not the Navy JAGCOR's finest hour.
He was acquitted of all those offenses, but convicted on a rarely, pretty minor offense.
The issue for Chief Gallagher was keeping his trident.
That's the device that they wear up here that designates there a SEAL.
Secretary of the Navy at the time, Richard Spencer, felt that he should not keep his trident.
Because of the advocacy of the Secretary with the President, he was able to keep his trident, and Secretary Spencer was fired.
In each of those cases, our current Secretary, as a Fox commentator, blamed the JAGs that were involved in those cases for railroading those individuals who were simply doing their job, as he said.
So where are we with the selection of a new TJAG?
Well, SECDEF said that they are chosen by each other.
There's a statutory requirement for selecting the TJAG.
I'm sure most of you know that.
The statute reads, they shall ensure that the officer selected is recommended by a board of officers that, insofar as practicable, is subject to the procedures and applicable to selection of boards governing promotion of officers.
The procedures to select JAGs for promotion from their entry level as a second lieutenant or an ensign up through colonel or captain is by a board of officers that are composed of JAGs with one representative from the line.
Those boards follow a precept that is signed off by the service secretary and they pick, they look through their records and they recommend for promotion the best and fully capable is how it's the words that are used.
So up to captain colonel, yes, recommendation for promotion is made by other JAGs.
But recommendation for promotion to flag rank, that is the TJAG, is by a separate board.
It's a board made up of line officer admirals or generals.
Usually the TJAG him or herself also sits on that board and helps select their relief.
I sat on the board that selected my relief.
But it was interesting to sit on that board with those other senior officers and look at records and look at what they thought were important in those records.
And what I learned is that they paid closest attention and gave greatest credibility to those performance evaluations of those JAGs who were written by another line officer.
So the performance evaluations that a JAG made for another JAG, that was regarded as important.
But the most important records before those boards were the performance evaluations that were written by a line officer.
So it was line officers that selected for recommendation the TJAG.
It wasn't their insular friends that the Secretary thought that's how they were selected.
What about the chairman of the Joint Chiefs of Staff?
If you remember in the quote, he painted that broad brush.
Oh, by the way, that's how the chairman selected too.
I'm appalled that he didn't know how the chairman was selected.
The chairman of the Joint Chiefs of Staff is selected.
Every one of the services recommends someone to the Secretary of Defense.
The Secretary of Defense then interviews and forwards a recommendation of the White House, and the President interviews and makes the selection.
For General Milley, it was General Milley and one other four-star general that was interviewed by then President Trump in his first administration, who then selected General Milley.
He wasn't selected by a board of his buddies, and I am just surprised that the Secretary even said that.
So what about the role of the TJAG and ROE?
Because that's really where the meat of this goes, is the criticism that the Secretary had regarding rules of engagement that the TJAGs were involved in.
Well, quick background.
Rules of engagement start with a document called the Standing Rules of Engagement.
That document is drafted by the Joint Chiefs of Staff.
It is reviewed and approved by the Secretary of Defense and then promulgated by the Joint Chiefs of Staff to the combatant commanders and operational commanders.
There are provisions in there that provide for modification based upon circumstances that can be done or is requested by the operational commander.
It is axiomatic.
The ROE belongs to the commander.
JAG is the advisor.
JAGS advise.
Commanders decide.
JAGS inform the commander's decisions.
I hesitate to say this because I don't want to misspeak, but I want everybody to understand.
As the Judge Advocate General of the Navy, I had no role whatsoever in rules of engagement.
unidentified
None.
rear adm james mcpherson ▲ ● ▼
And I say that TJAGs in the other services have no role in drafting or promulgating rules of engagement.
Their role is this.
Now remember, they're at the department level.
What do departments do?
Departments do recruit, train, and equip.
Departments do not do operations.
So the TJAG in that department doesn't do operations.
They don't do the drafting of the promulgation, and they don't give advice on ROE.
What they do is ensure that JAGs who are going to do that job are sufficiently trained and are appropriately assigned.
That's the TJAG's job.
So to criticize the TJAGs as being roadblocks to warriors being able to do their jobs is just misplaced.
Again, it's misinformed.
TJAGs have no role in the drafting or promulgation of ROE.
So why is this important to the National Security Committee and to this committee?
Why are the JAGs vital to our national security mission?
Well, first of all, the primary role of the TJAGs assigned to the combatant commander and operational commanders, they represent and ensure the rule of law and operational environments.
Adherence to the rule of law is essential as a disciplined force for the effective and efficient application of force as a force enabler.
They're not roadblocks.
Let me quote here, just really quickly, from a retired four-star who was a combatant commander, actually sent COM for three years, as well as two years as another combatant commander.
And here's what he had to say.
Based upon my experience during my time as a combatant commander, I had a well-developed appreciation for the role of legal advisors played in operational activities.
My SJA, his staff judge advocate, his JAG, was integrated into all planning and execution aspects of our operations.
The advice I received from my SJA was essential as we solidified our operational guidance and made modifications to the ROE.
There were situations when the SJA brought issues to my attention which informed my ultimate decisions and guidance.
I do not recall even a single situation when I considered the SJA's advice as a hindrance.
Integrated legal advice and analysis is a critical component in senior combatant commanders' decision-making.
How we do things is as important as the things we are doing.
How we do things is as important as the things we are doing.
I never felt that the operational law I or my subordinate commander received limited our operational choices.
Very different from the perspective and opinion held by our Secretary of Defense.
So where are we now?
So where are we in this procedure to forward those nominations as the Secretary asked for in February?
My understanding is I don't have first-hand knowledge, obviously, but I've talked to people who are in fairly well positioned to have first-hand knowledge.
My understanding is each of the three services has already held a board, but the guidance to that board was very different than previous boards.
The guidance to the boards was rank-order your recommendations.
In other words, don't come forward with a single name recommendation.
Rank-order them.
One, two, three, four, five, however far down you want to go in rank order.
And then forward that rank order to the service secretary.
The service secretary then has interviewed either the one, two, or top three in each of the services.
I don't know if decisions have been made yet or not, but the procedure was that the secretary would then forward, Secretary of the Service would forward one name to the Secretary of Defense, who would also interview, and then forward a name to the White House for nomination.
As you can see, this departs markedly from the statutory requirement that the boards that select the TJAGs be in conformance with all other boards as far as practicable.
And I'm sure that the exception that they will use.
The disturbing thing for me was I learned a little bit of the interview process that the Secretary of the Navy employed.
Now, the Secretary of the Navy was brand new.
He has no military background.
As a matter of fact, he was a money manager, quite successful at doing that.
And he had gotten the nomination, was confirmed by the Senate, and came over to the building.
And a very short time later, just a couple of weeks, he was interviewing the top three individuals that the board, the Navy board, forwarded to him.
And among the questions that I'm told he was asked was the following.
Do you agree with the policy regarding the mandatory inoculation for COVID and how that policy was executed?
You remember that the policy was, if you refuse to be inoculated, you're administratively discharged.
The second question he asked was: Do you agree with the former policy regarding eligibility for transgender people to enter and remain in the service and how that policy was executed?
He was referring, of course, to the Biden policy, who reversed the previous Trump policy regarding transgender individuals and removed most of the prohibitions for transgender individuals to serve in the military.
Two highly political questions, both of which the TJAG would have never been involved in.
And in my opinion, totally inappropriate questions to ask for the TJAG.
Very few questions about leadership, your experience, what is your opinion regarding rules of engagement, those sorts of questions that it seemed to me the Secretary should be asking for the person that's going to be his or her JAG.
So what's going on right now?
There are a number of individuals and a number of organizations who are urging the Senate Armed Services Committee to hold hearings for the nominations of the JAGs.
That's never been done in the past.
We have never had hearings for the individuals that have been nominated for the TJAG position.
Typically what happens is the nominee will go over to the Hill and will pay courtesy calls upon the chairman and the ranking member and whoever else, whatever senator or other staff, wants to interview the individual.
That's how I did it.
When I was nominated, I went and I interviewed with Senator McCain and Senator Reid.
They were both pleasant experiences.
And that's how it's always been done.
The Senate's now being urged to hold hearings.
Why should they hold hearings?
A couple of reasons.
One is to get to the bottom of how this selection process occurred and why was it practicable to do it this way and not the way we mandated it be done.
But second of all, I think it's important to get a commitment on the record from the individual that's been nominated that they will adhere to the rule of law.
That if they are being asked to do something that they believe is unlawful or unconstitutional, that they will refuse to do it.
I think it's important to get that commitment from the nominee.
And we're not going to get that commitment unless they're on the record testifying before the Senate Armed Services Committee.
So that's where the game plan is at this juncture.
No decision has been made yet.
There's some indication that SAS will probably not do that, but I hope and pray they will.
So, question and answer time.
And please don't feel like you have to limit your questions to my presentation.
As John said, I spent some time as the general counsel of the Army and then as the Undersecretary of the Army and then two very zesty months as the acting Secretary of the Navy.
So ask away.
Thanks, John.
unidentified
I'm going to start with two questions, and then I think that ought to give us about 10 minutes, so please put your questions together.
So one, Jim, that was great.
You've improved with age.
Even better.
I look forward to the third go-round.
So one, I think you made pretty clear, including from that quote from the unnamed senior officer, that Secretary of Defense's views about JAGS is not representative, at least, of the officers who you dealt with.
So I'm going to ask you a difficult question, which you can punt.
But where is this coming from?
Is this a junior officer level versus senior officer level?
Is this just more of the division of our country between sort of red states and blue states?
I mean, clearly he has a very dim view of lawyers and judge advocate generals.
I mean, all of us, probably every person in this room, I can tell you at the State Department, you know, is the old adage of, oh, well, let's give it to the lawyers and they'll kill it.
But at the same time, you know, I knew that Secretary Rice had tremendous trust in what we would tell her, even if sometimes it slowed things down.
So, you know, where is this view coming from?
And I take it you think this is not representative of the views of the senior officers who rely on legal advice every day?
rear adm james mcpherson ▲ ● ▼
You hit it on the head in the first suggestion.
The secretary was a major in the National Guard, and that was his background.
He did do a tour in Iraq, and I'll give him that.
But it was my experience through the years that it was generally the junior officers that blamed the lawyers for not being able to do something.
And often what you would hear is the senior leaders who made the decisions, but blame the lawyers that we can't do this.
And so what you find is it really is a quirk of junior officers, usually majors and below, who don't understand what the role of the SJA or the JAG is, and they're the ones that quickly blame the JAGs for what's going on.
I was fortunate during my career.
I worked for a lot of flag officers.
And without exception, they were exceptional leaders and gentlemen.
But I remember the very first one I worked for.
It was my first duty station, as a matter of fact.
I worked for a three-star, his name is Vice Admiral Kilklein, and he was the commander of all Naval Air Forces in the Atlantic.
And I paid my courtesy call upon him.
I was a JG.
I mean, I was pretty junior.
Paid a courtesy call upon me.
He welcomed me to his staff.
And I'll never forget what he said.
He said, Jim, always remember, as a JAG, you are the constitutional conscience of the command you work for.
And I've always appreciated that.
I wish I would have had a plaque made up that said that.
You are the constitutional conscience of the command you work for.
And I think that's the opinion of our senior leadership.
I think they truly believe that, as the general that I quoted from.
unidentified
Well, happy to hear it.
Here's a second question, which is a couple things you didn't mention, and then over to the rest of you.
So unfortunately, this is just part of it, is this sort of war on the JAGs.
But as I understand it, there is an effort from, I guess, from the Secretary himself to engage in sort of retraining or rather untraining.
And so I understand that he's appointed his personal attorney, has commissioned him as a commander in the JAG Corps, assigned him to his personal staff to oversee the review of the state of education in the military.
And then second, Jeff Korn, who is often here with us, recently wrote an op-ed expressing concern about the fact that we're going to stop doing law of war training really for the rank and file.
So for the first time in who knows how many decades we will stop training people on the laws of war.
So I'm just curious as to what you're hearing about those two things.
rear adm james mcpherson ▲ ● ▼
I'm hearing that precisely.
And the person that he appointed to the JAG Corps in the Naval Reserve was a general by the name of Palator, who, by the way, was Gallagher's counsel, one of the cases I mentioned.
And that's how he developed a friendship relationship with our Secretary.
But yes, my understanding is that the Army is leading right now in rolling back the mandatory training that is being given, even to junior enlisted individuals, on the law of war and rules of engagement.
And they are also planning on not having, whenever they have an exercise, the requirement was that a law of war portion always be written into the exercise, whether it be with the prisoners of war or rules of engagement or whatever it may be.
My understanding is they're rolling that back as well.
Exercises will no longer be.
unidentified
What do you think the impact of that?
I mean, is that kind of education wasted on 18, 19, 20-year-olds?
rear adm james mcpherson ▲ ● ▼
I don't think it's wasted on them at all.
I think it introduces them that there are rules in what we do, but it also reinforces to them that their leadership feels that this is important.
Otherwise, why would they be spending the time and the resources to train me on this?
This is something I need to know.
I think it's important to imbue even the junior enlisted and certainly junior officers with that, with the basic notion of the law of war.
unidentified
Good.
Thank you.
Floor is open.
rear adm james mcpherson ▲ ● ▼
Remember.
Be gentle.
unidentified
Questions here, please identify yourself if you would.
First, thank you from the bottom of my heart for everything you've done and the people in this room have done to make the JAG Corps so professional and such a reliable source of a rule of law perspective within our military.
I think it's, you know, a whole nation owes your indebted gratitude for that.
My question, just to clarify, is the Corps, are the Judge Advocate Corps themselves being subject to a purge?
I mean, are they weeding out the holdovers from prior, you know, the prior administration in the kind of line officers, or is just an attack at the top?
rear adm james mcpherson ▲ ● ▼
I'm not hearing that.
I'm not seeing that.
But generally, the result of a TJAG selection is that there are a number of colonels and captains that are on active duty waiting to see what the next selection is, because it might be me.
And if I'm not selected, then I retire.
So I think what you're going to see is a lot of premature retirements.
For example, Joe Berger, Army, he had only been in the job six months or so.
And so now that they select another one who's going to have a three-year tour of duty, I think you're going to see a lot of senior colonels are going to say, well, clearly I'm never going to be selected as a T-JAG, so I'm retiring.
And I think you'll see the same of the other services.
So I think you'll see a little bit of a flight to the door by some of the senior officers.
But I don't think that was intended, perhaps an unintended consequence, but I think that's going to be one of the consequences.
But I think more importantly, this sends a terrible message.
I mean, we have a secretary who calls us JAGOFs, who views what we do and what we hold as an important part of our portfolio as something we shouldn't be doing.
It's useless.
Why should we do that?
I think it's a tremendous morale buster.
unidentified
Thanks.
Yeah, right here.
It's good to see you again.
I'm Bill Bombardier, retired Coast Guard Air Admiral TJ.
I took over as Coast Guard TJ right as you were leaving.
Thanks for the great description of the Coast Guard, the Coast Guard JAG Corps.
So that's great.
On this last point, just last week it was announced that the Secretary had decided to tear up the flag selection board report from last summer, which is the people that were selected last year for flags in the Coast Guard, to tear up that report in total and then give a new instructions to a board that would meet this summer.
And also, I don't know why, but in the list of flag assignments, the Judge Advocate General of the Coast Guard is listed as to be announced.
I've not talked with the incumbent right now to know whether he's resigned or was planning on retiring anyway.
But there are interesting things happening all over the place.
rear adm james mcpherson ▲ ● ▼
Yeah, thank you for that update.
By the way, you could speak disparagingly or the word you could with contemptuous words concerning the Secretary of Homeland Security because Article 88 says Department of Transportation.
Now the Coast Guard was transferred to Homeland Security in 2003, so that's how long our Congress has had to clean up that and they haven't done it yet.
unidentified
More questions?
Yep.
Here.
Scott Flesh, I'm Miller Chevalier, and I'm a retired Army JAG.
I'm wondering if there was a question about whether or not the JAG Corps line of file, junior officer ranks, if in fact there's an attack or purge on them.
I'm wondering if the attack on the rule of law training is a way to minimize the role or responsibilities of JAGS, which incentives will reduce our requirements and needs and potential staffing.
rear adm james mcpherson ▲ ● ▼
I think that's one of the very real threats.
I agree.
My understanding is the senior JAGs, at least the Navy senior JAGs that I still know and stay in touch with, are telling their junior officers, just hang in there, just hang in there.
Things change.
This administration will change, and the pendulum will go back to where it was before.
So there's an encouragement there.
But I think they're having, again, the senior officers I speak with, are having a tough time in their own lives of staying with an organization that regards them so poorly.
unidentified
Yep.
Thank you, Admiral.
John Newers, I'm the Marine Judge Advocate.
How do you see this ending?
rear adm james mcpherson ▲ ● ▼
Wow.
Great question.
You know, I don't know.
You read the paper this morning, you may conclude that our current Secretary is on thin ice because he can't quite get his front office on the same page.
And if he were to depart, who would take his place?
And would that be a change in direction?
I think probably not.
I think what you're going to see is some period of upheaval in the JAG course, particularly in the area of training of law of war and rules of engagement, because the current administration doesn't think they're that important.
unidentified
So that's a good tee-up to my sort of last question, an invitation to you, Jim.
So when I'm over at the State Department, I spent a lot of time talking to other countries, particularly about the laws of war, and a number of the JAGs do as well.
And I think as everybody here in this room knows, despite our shortcomings, despite the fact that we fall off our pedestal from time to time, other countries really look to the United States, particularly for leadership in the laws of war, international humanitarian law.
One of my disappointments is that we've not been able to actually move forward on a number of initiatives because there just haven't been the people really to lead in that area.
But other countries really do look to us to do this.
So I guess, Jim, I know you're not circulating quite as much, but you also hear a lot from people.
One, what do you think is going to be the impact when other countries see that our Secretary of Defense is downplaying the importance of compliance with law in our military?
And two, if you had a few minutes with a successor Secretary of Defense as a former TJAG, what would you say as to what that person ought to do to change things?
rear adm james mcpherson ▲ ● ▼
I'll exercise my emeritus status again and tell a quick war story that gets to your first question.
So when I was the Navy JAG, every year Pacific Command, PACOM, would hold a legal conference.
And the year I went, it was in Singapore.
And they invited the JAGs, all the JAGs in the Pacific region to attend.
And most of them did.
So it was a large gathering of not only allies, but not, well, the adversaries, People's Republic of China sent a delegation.
North Korea did not.
But it was a gathering of a lot of very senior JAGs, some of them their own TJAGs.
And we had a dinner that was hosted by Pacific Command.
And I remember at that dinner, one of the JAGs in one of our allied nations, actually was Australia, he said how much he, publicly, it was like a toast, how much he appreciated what the United States was doing,
the Navy particularly, with regard to rules of engagement and law of war, and how they borrowed from our publications for their own rules, and how much they appreciated that our military took the lead in law of war and rules of engagement.
And that really resonated with me and made me realize that, yeah, we really are the leaders in this area.
Well, we're no longer the leaders in this area.
And so, if we're not, who is?
And how can our allies now trust us when it comes to joint operations and those sorts of things?
When they see a joint exercise take place and all the rule of law and rules of engagement exercises are taken out, I think it sends a terrible message.
What would I say to the new Secretary of Defense?
Gosh, I would say this: I would give him a decision matrix model.
And I would say to him, you know, before you make any decision, there are three questions you need to ask yourself.
And the first question is: is this ethical?
Does the decision I'm about to make fit the norms of my organization?
Secondly, is the decision I'm about to make lawful?
Is it a lawful decision?
And third, and perhaps more importantly, is it moral?
Is it the right thing to do?
I stole that from a four-star general.
But I think it is so true.
And that would be the advice I would give to the new Secretary.
unidentified
Jim, thank you.
That was great.
Thank you for all your leadership.
Keep it up.
rear adm james mcpherson ▲ ● ▼
Don't stop.
unidentified
You want to javel us to a close?
Yes, if you do.
Our rebels are ended.
So thank you for coming and thank you too once again.
Thank you.
Coming up live today on the C-SPAN networks.
At 11 a.m. Eastern on C-SPAN, Air Force Secretary Troy Menk will deliver the commencement speech at the U.S. Air Force Academy.
The Secretary is an Air Force veteran and was sworn in earlier this month.
Then live at 4 p.m. Eastern on C-SPAN, the American Enterprise Institute hosts a panel discussion on regional immigration programs aimed at addressing immigration at the local level by considering the economic need of each community.
And at 6:30 p.m., former National Security Advisor Jake Sullivan will discuss U.S. foreign policy at an event hosted by the Chicago Council on Global Affairs.
And on C-SPAN 2, Congresswoman Virginia Fox will join scholars and advocates to discuss parental rights at the Cato Institute at 9 a.m. Eastern.
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