As December marked the fourth anniversary of the Space Force, the youngest military service within the Pentagon, it remains the only branch of the armed forces without its own judge advocate general (JAG) unit. This absence of a service-specific court system is deemed by Maj. Aaron Brynildson, an Air Force JAG, as detrimental to the Space Force’s operation and growth. He emphasizes that it’s high time for this inadequacy to be redressed.
Currently, it is the Air Force that supplies all active-duty JAG representatives that directly support the Space Force units. Judge advocates from any military service branch provide space legal advice in joint space environments. Specialized space lawyers have been recognized as crucial for some time, and their introduction was even included in the original legislation establishing the Space Force. Essential details on the necessity of specialized space lawyers can be found here.
A primary question arises – why does a military branch with an approximate members’ count of 8600 need its own lawyers? The distinct culture and environment within the Space Force is one of the reasons which should be considered when giving counsel on discipline and order. Additionally, the Space Force encounters an especially intricate and unusual set of evolving international and domestic laws. These include the Outer Space Treaty, questions around global spectrum use, progressively proliferating commercial space communities, and regulations on space launch, telecommunications, and remote sensing.
The 2022 NDAA saw lawmakers recognizing the need for more domain-specific military lawyers, leading them to create independent prosecutors known as “special trial counsel” within every service branch. This recent development is largely motivated by concerns about commanders’ influence over criminal proceedings involving their members. This change could potentially pave the way for the Space Force to have its independent legal advisors.
In contrast to the Air Force, where the JAG Corps operates under a forward operating agency (FOA) model which centralizes authority over other JAGs, the 2022 NDAA reforms detach criminal prosecution from both the FOA lawyer commander and traditional operational commanders. Instead, the newly established top prosecutors now report exclusively to the Secretaries of each branch. This alteration simultaneously prevents illegal command influence from both lawyers and commanders and provides job security for the stationed officials, which promotes impartial legal advice.
Meanwhile, the Space Force faces similar challenges. It currently lacks experienced space lawyers and maintains its legal advice under political and career pressures, yielding a need for independent legal counsel specific to space law. The Space Force can follow the model of the special trial counsel program, where a one-star JAG directly advising the Chief of Space Operations would be exempt from concerns about career advancement, securing impartial and unaffected legal advice.
Interestingly, funding, often seen as an obstacle to creating Space Force JAGs, should not pose an issue with the enormous defense budget. Set up for a Space Force JAG department would require minimal resource and lawyer transfers, with the potential to convert approximately 50 lawyers currently advising the Space Force or U.S. Space Command.
Overall, the 2022 NDAA’s emphasis on specialized JAGs and insulated legal advice makes a strong case for establishing independent, specialized space lawyers, disrupting previous arguments against a Space Force JAG Corps. With the Congress seen leaning towards supporting specialized prosecutors, the need for a dedicated JAG Corps for the Space Force cannot be denied.