How the Department of the Air Force Can Optimize Legal Support for Great Power Competition

Effective legal support is mission critical.

Earlier this year, the Secretary of the Air Force announced “sweeping plans for reshaping, refocusing, and reoptimizing the Air Force and Space Force to ensure continued supremacy in their respective domains while better posturing the services to deter and, if necessary, prevail in an era of Great Power Competition.” In other words, the Department of the Air Force (DAF) is going through a reorganization. And, despite some congressional discomfort, this reorganization is already well underway. 

This effort does not include a reorganization of how the DAF, the U.S. Air Force, and the U.S. Space Force receive legal support. But it is not too late for the DAF to correct this initial oversight. This piece lays out five recommendations, in order of least to most difficult to execute, for reorganizing, and ultimately optimizing, legal support at the DAF for “Great Power Competition.” 

The Case for Legal Support at the Department of the Air Force 

Whether one calls it “Great Power Competition” or “strategic competition,” effective legal support is mission critical for several reasons. First, we are no longer in a post-World War II, industrial age where clean delineations of “peace” and “war” exist. Some commentators have even gone as far as to say that we are now in a new “pre-war” era. 

Thus, the days of flicking a switch from “peace” to “war” and relying only on jus ad bellum and jus in bello principles as the sole legal boundaries for action are very likely over. Powerful cyber capabilities, both offensive and defensive; increasing focus on domestic activity and the blurring between homeland security and defense; rapidly developing artificial intelligence (AI), both generative and general; the growing, deliberative intersection of traditionally defense-based and commercial activities, particularly as they relate to data collection and space defense; and indeed the possibility of humanity’s permanent presence in space all require expert understanding of the law—both domestic and international. 

The need for expert legal advice is made more stark by the idea that the executive branch is a government of limited, express authority. As a general rule (absent the President’s own, independent Constitutional authority, as in the realm of foreign affairs), executive branch agencies, including those in the Pentagon and those that work for it, can conduct an activity only if they can identify a source of affirmative statutory authority for that activity. And then, that agency may fund the activity only for the purpose, time, and in the amounts appropriated by Congress. Simply put, there is no mission without legal authority.

Recommendations for Reorganizing Legal Support at the Department of the Air Force

Many of these recommendations are grounded in driving cultural change so that, at every level, lawyers are a deliberative part of the unit-of-action concept favored by the ongoing DAF reorganization.

First, senior leaders at the Secretariat, Headquarters Air Force, and Headquarters Space Force should actively work to bring their servicing legal offices into regular staffing and planning processes on the front end. Currently, most legal review in the DAF is completed via the formal coordination process where there are varying stages of review of individual staffing packages. In more cases than not, the DAF’s lawyers are not aware of a staffing action until it hits the formal coordination process. Building in legal analysis earlier in this process allows counsel the opportunity to gain important visibility into pending initiatives and facilitates shaping legally available options as viable courses of action. To the extent they are not already doing so, the servicing legal offices should prioritize accessibility as a core competency and should take the initiative in offering their services at a stage in the process before so-called formal coordination. This would also speed up the formal coordination process, which ultimately should be retained for administrative record-keeping purposes. Not engaging with counsel on the front end creates the risk that lawyers identify a legal issue with a proposed staffing action that cannot be resolved, which could in effect “waste” all of the staff work leading up to that point. 

Second, DAF lawyers should always strive to practice with discipline. Their primary function should be to make assessments of legal availability, identify legal risk, and then offer decision-makers recommendations to mitigate that legal risk. Assessing legal availability and identifying legal risk are related—but they are not the same thing. For example, if a proposed action violates the U.S. Constitution or U.S. domestic law, it is not legally available, and thus the legal risk to the DAF enterprise is infinite, because members of the executive branch have an affirmative obligation to execute the President’s Constitutional Take Care Clause responsibilities. A legally available option may come with legal risk, particularly if the legal availability assessment includes a novel or untested read of an authority. Of course, lawyers may also offer nonlegal, prudential, or policy advice to decision-makers—but should clearly state the nature of the provided advice. Ultimately though, lawyers advise and principals decide. 

Third, the final legal review of a proposed action or policy should be an “above-the-line” review in the DAF’s formal coordination process. In other words, the sponsoring program office should pursue policy coordination and adjudicate all policy edits and comments before providing a product for final legal review and clearance. This may seem as if it conflicts with the first point of bringing lawyers into the discussion early on in the policymaking and decision-making process. It does not, because the legal interaction in the early stages is a matter of access and visibility, so that lawyers can help shape the outcome. Once, however, the results of the staffing action start the final clearance process, it is important for lawyers to work on a policy-stable proposal or document for two reasons. First, legal review and clearance is only good for the document that the lawyers are reviewing and clearing. If a policy or program office changes that document after legal review, that office has now assumed the risk of legal sufficiency of that document. Thus, it makes sense for lawyers to go last in the coordination process, because their job is to underwrite the enterprise’s legal risk. The servicing legal office should also actively engage throughout the staffing action. Ultimately, doing so also helps expedite the review process. Second, having lawyers review an already mostly baked, policy-coordinated document will allow the legal team greater ability to provide an annotated “red line” in tracked changes, as opposed to the standard “comment resolution matrix” (CRM) favored by staffing actions in the Pentagon. A CRM makes great sense when having to review and adjudicate policy comments and edits from multiple stakeholders, but it makes less sense for the legal review, provided the lawyers are engaged in disciplined practice as described above. Clarity of policy intent is a legal issue, however, so policy and program offices should expect lawyers to hone in on and offer corrective language on sentences that are vague or are subject to ambiguous meaning or competing interpretations; sloppy punctuation (which can create interpretation challenges); passive voice—particularly with respect to directive documents where it is not clear who is supposed to action the direction; and assertions of legal authority. Offering the servicing legal office the ability to review, edit, and offer comment in a red line will ultimately expedite the review process and offset some inevitable lag associated with repositioning the legal review “above-the-line.” 

Fourth, the Secretary should consider appointing a “chief counsel” subordinate to the General Counsel of the Air Force, at the three-star equivalent Senior Executive Service (SES) level to provide dedicated Space Force-specific advice, counsel, and direction to the Air Force judge advocates (JAGs) assigned throughout the Space Force enterprise. These assignments would thus become “details” from the Air Force to the Space Force until the Space Force reaches a critical mass of Guardians to support its own JAG corps. This recommendation charts a middle ground between the valid, principled arguments on both sides of the question of whether the Space Force needs its own judge advocates. On the one hand, it is extraordinarily difficult for the Space Force to establish its own service culture and advance its own priorities without its own, service-dedicated legal advocates. Right now, all Space Force JAGs are really U.S. Air Force JAGs assigned to Space Force units. On the other hand, the Space Force remains comparatively small, and establishing a JAG corps, where members compete against one another for promotion and assignment, is not a feasible option, because there just are not enough members to maintain the health of the corps, at least by traditional military organization standards. 

Finally, the Secretary should publish and enforce clear lines of responsibility between the Office of General Counsel (SAF/GC) and the Judge Advocate General of the Air Force (TJAG). Each has relevant statutory authority over the provision of legal advice to the DAF enterprise, although TJAG’s authority can be fairly read in a way that is literal in its execution and limited by both the Secretary’s or an officer’s or agency’s willingness to receive the TJAG’s advice and the relevant provision’s placement in the U.S. code nested under the Air Staff. The JAG’s authority must also be read in such a way as not to disturb the long-standing norm of civilian control and oversight over the military. There are existing (and arguably conflicting) policy documents that attempt to govern this interaction, but practically speaking there is no easily articulable or understood standard as to which office is responsible for what among the Secretariat, Headquarters Air Force, and Headquarters Space Force. Much of this is attributable to individual personalities, selective compliance with existing policy direction, historical grudges, and cultural vestiges of when the DAF was responsible for but one military service. 

In some cases, there are functional working relationships at some of the SAF/GC and AF/JA staff levels, but this tends to be the exception and not the rule. As a result, the “client” policy and program offices often do not know which legal office to engage with and when. In some cases, they do not engage with either until forced to by the existing formal coordination process. Savvy policy and program offices are aware of the divide and sometimes use it to “forum shop” in an attempt to get the answer they seek. This dynamic can also create a perverse incentive for one legal party or the other to stake out the more permissive interpretative position as a cynical and self-serving means to curry favor with decision-makers. 

This unconstructive divide fails to provide the best possible legal service to the DAF, at a time when providing legal service could not be more important. 

There are a few ways to solve this particular challenge, but the easiest may be for the General Counsel’s office to generally take lead responsibility for the Secretariat and the so-called “two–letters” and the AF/JA’s office to take lead responsibility for the Air Force and Space Force Headquarters elements (subject perhaps to the USSF chief counsel recommendation above) along with all field legal support. This recommendation plays to each office’s strengths, where SAF/GC is staffed primarily with career civilian subject matter experts and AF/JA comprises much greater numbers of traditionally generalist JAGs at the O4 and O5 levels. And optimally, both SAF/GC and AF/JA would backstop one another, as necessary with these functions. There would of course need to be exceptions to this default, like AF/JA retaining primacy over military justice matters regardless of level and SAF/GC retaining primacy over interactions with interagency partners and up the chain to the Office of the Secretary of Defense’s Office of General Counsel. Alternatively, the Secretary could review and reissue Air Force Management Directive 1-14, although in a service that values speed of action above almost any other equity, this would be folly, as both SAF/GC and AF/JA would likely be unwilling to renegotiate previously hard-won compromise, thus delaying any real remedy.

The DAF should be commended for taking the initiative and making hard choices involved in reorganizing the Air and Space Forces for strategic competition. The project will remain incomplete, however, without taking a hard look at how the DAF receives legal support. 

The views expressed are those of the author and do not reflect the official guidance or position of the United States Government, the Department of Defense, or the Department of the Air Force. All references to non-federal entities are provided for informational purposes only and are not endorsements.

– Michael Sinclair is a federal executive fellow at the Brookings Institution and a captain in the U.S. Coast Guard. Published courtesy of Lawfare.