Let’s Kill All The Lawyers
The first thing we do, let’s kill all the lawyers.’ Shakespeare’s warning becomes modern reality as the United States removes the legal brakes on war and lethal force.
Written By: Gary Moore
In Shakespeare’s Henry the Sixth Part 2, rebel leader Jack Cade addressed his Kentish followers thus: “your captain ... vows reformation. There shall be in England seven halfpenny loaves sold for a penny ... and I will make it felony to drink small [i.e., weak] beer; all the realm shall be in common ... and when I am king ... there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers and worship me their lord.” Cade’s accomplice Dick the Butcher concurred, urging “The first thing we do, let’s kill all the lawyers.” Cade responded, “that I mean to do.”
In this vein, US secretary of defense (as he then was) Pete Hegseth, in a dramatic move on the night of Friday 21 February 2025, removed the incumbent judge advocates general (JAGs) of the Army, Navy and Air Force. JAGs are military lawyers who advise on international law and rules of engagement and investigate potential violations of the laws of armed conflict and military law.
JAGs participate in after-action reviews, help determine if misconduct occurred, and may be involved in court-martial proceedings when service members face charges of violating the Uniform Code of Military Justice or laws of war. Hegseth in his 2024 book criticised military lawyers, saying most of them “spend more time prosecuting our troops than putting away bad guys.”
Analysts say that Hegseth’s late-night dismissal of the JAGs is a grave threat to the rule of law. A former Navy JAG has said that the firings were extraordinary and destabilise a longstanding norm of separating uniformed military members from politics. Professor of law and policy Rosa Brooks at Georgetown University in Washington DC is quoted in the ABA Journal of the American Bar Association as saying that firing the top lawyers is “what you do when you’re planning to break the law: You get rid of any lawyers who might try to slow you down.”
In response to their firing, those and other erstwhile JAGs have established a “Former JAGs Working Group” which issues unofficial opinions containing advice they would have given to US commanders about the lawfulness or otherwise of specific uses of military force.
The Working Group has issued opinions about the lawfulness of US military air attacks against alleged narcotrafficker “go-fast” boats in the Caribbean Sea and the eastern Pacific Ocean, the first such attacks being the two lethal strikes on 2 September against one boat in the Caribbean that destroyed the vessel and its cargo and killed all its crew.
The Former JAGs Working Group notes that on 20 February the US State Department designated several groups which traffic illegal narcotics through the Caribbean as “Foreign Terrorist Organisations”, and that in August the President determined that the US is engaged in a non-international armed conflict against those and other transnational criminal gangs.
The Working Group notes that US Coast Guard cutters have from early August to mid-October detected, intercepted and boarded over 30 suspicious “go-fast” vessels in the eastern Pacific Ocean and the Caribbean Sea, seized the vessels’ cargoes of some 110,000 pounds of cocaine, marijuana and other narcotics and captured 86 or more of their crew members, without employing lethal force.
The Working Group records that on 4 September the President sent a notice to Congress pursuant to the 10973 War Powers Resolution regarding an attack on 2 September on a vessel at a location “beyond the territorial seas of any nation” that was assessed to be “affiliated with a designated terrorist organisation” and to be “engaged in illicit drug trafficking activities.” This attack targeted a vessel carrying 11 civilians and, allegedly, an unknown quantity of drugs. The first strike resulted in near-total destruction of the vessel. Two survivors were reportedly observed via surveillance video clinging to wreckage, whereupon the commander directing the operation ordered a second strike, which killed them both.
In the subsequent two months, similar drone-executed air strikes were repeated at least 21 times, killing at least 83 in the Caribbean and eastern Pacific Ocean.
The Working Group records that, in the last week of September, the President sent a notice to Congress claiming that continuing drug trafficking by “non-state armed groups” constituted an “armed attack” on the United States. According to the President, these groups have “wrought devasting consequences on American communities for decades, causing the deaths of tens of thousands of United States citizens each year and threatening our national security and foreign policy interests ... [and] engage in violence and terrorism that threaten the United States and destabilize other nations in the Western Hemisphere” requiring armed force in “self-defense”.
US forces are currently directed to target “positively identified” civilian unflagged vessels operating on known drug-trafficking courses in the Caribbean Sea with lethal force sufficient to destroy the vessels and the drugs aboard them and to kill the embarked “narcoterrorists”.
The Former JAGs Working Group are aware that the Department of Justice’s Office of Legal Counsel (“OLC”) has issued a lengthy opinion contending that the sinking of alleged drug boats and killing of persons on those boats, is legal. The OLC opinion has neither been made public nor been provided to members of Congress exercising their oversight responsibilities under the Constitution.
On 1 November, OLC informed some members of Congress that (contradictorily) the War Powers Resolution of 1973 would not apply to the boat strikes because the US would not be “in hostilities” with the drug cartels and transnational criminal gangs.
The Former JAGs Working Group, having recounted these facts, advised that the use of military armed force abroad is lawful only if it complies with domestic constitutional and statutory law, international treaties ratified by the United States, and customary international law.
Constitutionally, Congress, not the President, has sole authority to declare war. In lieu of formal declaration of war, Congress may by joint resolution authorise the use of the military force that serves the same constitutional function of conferring on the President the power to use “all necessary and appropriate force” against enemy nations or (as in the case of the September 11, 2001 attacks on the Twin Towers and the Pentagon) against any group that meets criteria established by Congress.
The Former JAGs Working Group notes that Congress has neither declared war nor passed a joint resolution authorising the President to use force against these transnational cartels.
The President has an inherent constitutional authority limited to self-defence. The President may for 60 days deploy the military to engage in hostilities or in a situation in which hostilities are imminent, when “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces” occurs or is imminent, says the 1973 War Powers Resolution, consistent with longstanding Supreme Court precedent. Thus, the president’s power to wage war absent congressional authorisation is limited to instances of repelling an ongoing or imminent invasion by foreign armies, or countering ongoing or imminent attack.
But the OLC informed Congress on 1 November that the US would not be engaged in hostilities with these groups. According to a White House spokesperson, “The operation would likely comprise precise strikes conducted largely by unmanned aerial vehicles launched from naval vessels in international waters at distances too far away for the crews of the targeted vessels to endanger American personnel.” Because the US is not engaging in hostilities, argues the Administration, then the 60-day presidential war-waging window does not apply at all, allowing the Administration to continue this and any similar military operations indefinitely.
The Former JAGs Working Group observes that the OLC’s 1 November assertion to Congress that the US is not in hostilities with these transnational narcotics smugglers is irreconcilable with President’s late-September notice to Congress that the U.S. is employing armed force in self-defence against these non-state armed groups.
The Working Group notes the Administration has provided no evidence to support the contention that these fast-boat crews – even if members of drug cartels – are invading the US or engaged in armed attacks against US persons or military or the US homeland. The President’s explanation for using armed force in “self-defence” does not factually link the introducing of illicit drugs into the US to the “deaths of tens of thousands of United States citizens each year,” nor does it explain how the importation of drugs constitutes a threat to “national security and foreign policy interests” or furnish any specific examples of acts of “violence and terrorism” that “threaten the United States.”
The Former JAGs Working Group concludes that no domestic law authorises the President to engage these targets with lethal force, and therefore extrajudicial killing of these targets without legal justification constitutes the crime of murder. For military personnel, the Uniform Code of Military Justice also prohibits murder, and planning by military staff to conduct these operations would constitute conspiracy to commit murder.
[To be continued in Part 2.]
Gary Moore, a practising attorney for 30 years, is a Senior Associate at the Free Market Foundation.