WASHINGTON — Some Democratic senators say they are deeply concerned that a Pentagon plan to allow military lawyers to work as temporary immigration judges[1] will violate a ban on using service members for law enforcement and affect the military justice system.
The letter, sent to the military services and provided to The Associated Press, comes two weeks after Defense Secretary Pete Hegseth[2] approved sending up to 600 military lawyers to the Justice Department to serve as temporary immigration judges. It is part of the steps the Trump administration has taken to use the military in broader ways[3] than previously seen, particularly in its immigration crackdown[4], including sending the National Guard[5] into American cities and deploying active duty troops to the U.S.-Mexico border[6].
“These military officers would serve under the command and control of the Attorney General and would execute administrative determinations at the direction of the Attorney General,” according to the letter signed by 12 Democrats on the Senate Armed Services Committee. It added that “these actions are inherently law enforcement actions that may not be performed by members of the armed forces.”
“We remain extremely disturbed about the impacts on readiness of using military personnel to perform what are traditionally Department of Justice functions,” the letter says.
The nation’s immigration courts — with a backlog of about 3.5 million cases — have become a key focus of President Donald Trump’s hard-line immigration enforcement efforts. Since Trump returned to office, dozens of immigration judges have been fired[7], while others have resigned or taken early retirement.
The senators' letter, sent to the offices of the top military lawyers for the four services on Monday, is asking the Pentagon to say where the roughly 600 lawyers will be coming from and for insight into what legal analysis the military has conducted into whether the move would violate the Posse Comitatus Act[8]. That law prevents the military from conducting law enforcement outside of extreme emergencies.
A Pentagon memo that described the plan said the lawyers should not be detailed for longer than half a year. The memo also showed that Pentagon officials were cognizant of the possibility for conflict with that law and said the Justice Department would be responsible for ensuring that the military lawyers do not violate it.
The Democratic senators said they were “deeply concerned” that pulling those lawyers away would have an impact on service members who are going through the military’s judicial system.
“These reassignments come at a time only shortly after Congress completely overhauled how the military investigates and prosecutes serious ‘covered’ criminal offenses … by establishing the Offices of Special Trial Counsel (OSTCs) in each of the Services,” the letter read.
Those offices were set up by Congress in 2022[9] as part of an effort to reform the military justice system by moving decisions on the prosecution of serious military crimes, including sexual assault, to independent military attorneys, taking that power away from victims’ commanders.
The offices began taking cases[10] at the end of last year.
The letter asks the Pentagon what it will do to “preserve the OSTC’s progress in building specialized trial capacity” and what the services will do to “ensure that diversion of OSTCs, trial counsels, and defense counsels does not create delays or diminish quality in court-martials.” The senators say that the plan is a demonstration of how “the Trump administration views skilled personnel as pawns to be traded between agencies, rather than as professionals essential to their core missions, in order to advance misguided immigration policies."
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