The seal of the Judge Advocate General Corps is displayed inside the 28th Bomb Wing courtroom at Ellsworth Air Force Base, S.D., July 17, 2018. (U.S. Air Force/Nicolas Z. Erwin)
The Space Force celebrated its fourth anniversary in December, and in many ways has become ingrained inside the Pentagon. But America’s youngest military service is still lacking in one key way: it is the only branch of the armed forces without its own judge advocate unit. In this op-ed, Maj. Aaron Brynildson, an Air Force JAG, argues it is time for that to change.
The United States Space Force operates today without its own uniformed lawyers, known as judge advocates, who specialize in the service’s needs. That’s a detriment to America’s newest military service, and one that needs to be fixed.
Currently, the Air Force provides all active-duty JAG bodies that directly support the Space Force units. In joint space environments, JAGs from every service branch can and do provide space legal advice, but the need for specialized space lawyers has long been identified and was originally in the initial legislation to create the Space Force.
Why does a military branch with roughly 8,600 servicemembers need its own lawyers? The same reason that every branch has its own version of the JAG: the criticality of lawyers for order, discipline, and compliance with the complicated domestic and international laws related to each warfighting domain. There’s a reason that one of the first officers hired by Gen. George Washington in 1775 was a lawyer, and that the Air Force stood up its own JAG just a year after its creation in 1947 — because the kinds of situations a military faces comes with specialized legal challenges.
Like other branches, the Space Force has a unique culture and climate, which should inform a lawyer’s advice on good order and discipline. But one could argue that the Space Force faces the most complex and unique series of evolving laws that any branch has ever faced. These laws include the Outer Space Treaty, questions about global spectrum use, an increasingly proliferated commercial space community and domestic policies on space launch, telecommunications, and remote sensing.
Lawmakers have recently acknowledged the need for more domain-specific military lawyers. In the 2022 NDAA, Congress established independent prosecutors in each service branch known as “special trial counsel,” a program that recently went into effect. The reforms are largely the result of concerns about commanders’ influence of criminal proceedings against their members, but the changes could end up being a pathway towards the Space Force having its own independent legal advisors.
Military justice reform is an implied criticism of the current organizational structure of the JAG Corps. For example, in the Air Force, JAGs established their own forward operating agency (FOA) that centralizes authority over other JAGs. Under this FOA structure, the top JAGs serve as commanders of most uniformed JAGs. Some JAGs are embedded within operational units and report directly to operational commanders, but this number is dwindling. This has profound impacts on the legal advice given to operators. If you want to know a person’s priorities in the military, look at their rating chain for answers.
The 2022 NDAA reforms carved criminal prosecution out from both the FOA lawyer commander and traditional operational commanders. Instead, the top prosecutors, all one-stars, now report directly to the various Secretaries of each branch. This arrangement is arguably a solution to prevent unlawful command influence by both lawyers and commanders, but also allows for a terminal one-star billet, which means that the individual taking the top prosecutor position has job security and knows they cannot promote again. Therefore, their legal advice should be insulated from career considerations and command pressures.
The 2022 NDAA also directed the services to increase promotion opportunities and guidance to promotion boards to value domain-specific military justice experience. Military justice experience has been often undervalued by the service branches. For example, very few JAG general officers have robust criminal trial experience, a reflection of the DOD’s past priorities. The military frequently loses its best trial attorneys due to the inability for lawyers to stay in the courtroom and promote to higher ranks. This new promotion boost also came about as a response to criticisms over JAGs being too inexperienced to handle prosecution of serious criminal offenses given their lack of time spent in the criminal law field, in comparison to civilian prosecutors.
Up to this point, you’ve probably been waiting for the connection between criminal law and space law. The issues and solutions facing the two areas are nearly identical.
The Space Force has a lack of experienced space lawyers. JAGs that want to specialize in space similarly struggle with being able to stay in the space field due to the demands that JAGs be constantly rotated among various specialties. JAGs advising the Space Force are also not insulated from the political and career pressures inherent to servicing a branch separate from their own. And none of the various JAG Corps’ general officers have space-specific legal experience.
The Space Force could model their future legal office after the special trial counsel program. A one-star JAG could advise the Chief of Space Operations. This JAG would be able to advise the CSO without concern for career ramifications. This lawyer to the CSO would also have assignment authority over subordinate JAGs, like the authorities that the special trial counsel has over his subordinate prosecutors. Lastly, space counsel could be given a recognized boost during promotions boards and turned into a specific sub-specialty that JAGs can opt into, much like how prosecutors are being boosted and specialized now.
One argument against creating Space Force JAGs is funding, but that argument doesn’t really hold up considering the vast dollars in play with the defense budget. The creation of a Space Force JAG would require minimal transfer of resources and lawyers. All told, approximately 50 lawyers provide advice to Space Force or US Space Command units, and those could all be transferred over easily — the same way the first wave of Space Force personnel traded in their Air Force uniforms on a Friday and put on their Space Force uniforms the next week.
Moving forward, opponents should have trouble using previous arguments against a Space Force JAG Corps. The willingness of Congress to embrace the need for specialized JAGs and insulated legal advice cuts against previous arguments that JAGs can easily switch between advising their own service branch and the Space Force. These prosecutor programs also show a willingness to fund and reallocate JAGs to meet current needs. For example, the Air Force spent the last 12 months establishing a significant planning team and training regiment for the special trial counsel, well before the mandated deadline. This highlights that capability is not the issue, but instead priority.
In sum, the precedent being set by decentralizing prosecutors from the JAG bureaucracy and the influences of command, should be utilized to argue for independent, specialized space lawyers.
Maj. Aaron Brynildson is a judge advocate, and currently works on space legal issues. The personal viewpoints of this author do not represent any official DOD or Department of the Air Force views or positions.