At times, it’s difficult not to express frustration with PBS.
President Trump’s aggressive stance against narco-terrorists and his efforts to put pressure on Venezuelan leader Nicolas Maduro have sparked controversy in many circles. One might wonder why there appears to be a degree of support for drug cartels and leaders influenced by China among some of our “foreign policy” experts—a question that remains largely unasked in mainstream discourse.
Recently, the US Southern Command executed its 21st strike against vessels tied to drug trafficking since the operation began on September 1. For more on this, you can refer to the article “Shots Fired! The US Military Sinks a Venezuelan Drug Runner.” Interestingly, it seems that the targeted vessel was primarily transporting gasoline instead of drugs. This observation suggests that cartels are diversifying their illegal activities beyond drug trafficking. Detailed coverage of this strike can be found in Ward Clark’s piece, “US Forces Eliminate 3 More Narco-Terrorists in Pacific Drug Strike.”
The media has been quick to label these military strikes as “illegal.” POLITICO, for instance, reported concerns from former GOP officials about the legality of the US strikes on suspected drug smugglers. Adding to the debate, The Independent drew parallels with historical events by questioning if following orders could protect troops from legal repercussions related to Trump’s actions. Critics, including individuals from DC think tanks, argue that Trump hasn’t sufficiently justified the legality of these strikes, and some suggest that future administrations might retroactively challenge these actions—an assertion that seems to disregard the complexity of military orders and their long-term implications.
Amidst these tensions, the sudden resignation of US SOUTHCOM commander Admiral Alvin Hosey has raised eyebrows. Speculation abounds that his departure was due to his opposition to the current policy targeting narcotics smugglers. This context adds a layer of intrigue to a PBS report on military personnel seeking legal counsel regarding the legitimacy of Trump-ordered missions. If indeed military staff are questioning the legality of their orders, it raises concerns about morale and could foreshadow significant upheaval in operations targeting Venezuela and the cartels.
As an aside, I don’t think this boat was smuggling drugs as its primary cargo, but gasoline. Coke and fentanyl don’t burn like that. This implies the cartels are engaged in more than drug running. My colleague, Ward Clark, covered this strike in more detail at US Forces Eliminate 3 More Narco-Terrorists in Pacific Drug Strike – RedState..
The drumbeat from the press is that these strikes are “illegal.” For instance: Former GOP officials fear US strikes on alleged drug smugglers aren’t legal – POLITICO. Former GOP officials, is there anything they don’t know? And there is this one that carries Nazi connotations (because of course it does): ‘Just following orders’? Experts doubt legal memo shields troops from prosecution over Trump’s boat strikes | The Independent. In this one, a guy from a DC think tank claims that Trump hasn’t established that the strikes are lawful (I guess he hasn’t gone to the “lawful killing” judge and gotten permission). Another guy says that even if he has, future administrations may decide he was wrong and prosecute everyone involved, which is horse dung because that means no one ever gets a lawful order if someone in the future doesn’t like the policy.
In this stew, we also had the no-notice resignation of US SOUTHCOM commander Admiral Alvin Hosey; see Did He Jump…Or Was He Pushed? US Top Commander for Latin America Abruptly Retires – RedState. He is widely rumored to have left because he opposed the policy of whacking narcotics smugglers. So I was intrigued by this PBS story, Military personnel seek legal advice on whether Trump-ordered missions are lawful | PBS News. Was Holsey on the leading edge of something? And if military personnel are seeking legal advice, then morale has hit rock bottom, and the wheels are about to come off the Venezuela/cartel operation in the form of a mass resignation that can’t be ignored.
The subject of the interview was Frank Rosenblatt, president of the National Institute of Military Justice, which runs The Orders Project, “a group of professionals, experienced in military justice, who are committed to connecting service members with experienced legal counsel to make informed decisions about their duties under the law as it relates to orders.”
The interview starts this way:
Military service personnel have been seeking outside legal advice about some of the missions the Trump administration has assigned them.
The U.S. strikes against alleged drug trafficking boats and deployments to American cities have sparked a firestorm of debate over their legality, and some service members are turning to nonprofit organizations for help.
Rosenblatt responds, “We are primarily getting calls, a lot of people who are tangentially involved. They aren’t the people who are actually on the operations or are approving them.” He goes on to say that people who are giving advice and opinions against the operation are feeling informal pressure to get on board.
The way I read that is that the military lawyers who ruled the roost in Iraq and Afghanistan, creating a maze of legal hoops that commanders had to jump through before engaging the enemy, are finding themselves sidelined. If the operators aren’t concerned, then no one is asking questions about the orders that matter.
Stepping back, a lawyer giving you advice on carrying out an order isn’t all that useful. The Orders Project produces an excellent downloadable publication called A SOURCEBOOK FOR ADVISING MILITARY PERSONNEL. Let me use their publication to demonstrate why relying on legal advice to disobey an order is a high-risk, low-payoff proposition.
First and foremost, any order you receive from a superior officer, so long as it is military related, is presumed to be lawful. You don’t get to demand to see a legal opinion; you really don’t even get to do the theatrical, “give it to me in writing.” This is from the “Sourcebook,” but it is taken directly from Article 90 of the Uniform Code of Military Justice: Willfully disobeying a superior commissioned officer.
(a) Lawfulness of the order.
(i) Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the subordinate’s peril. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.
If you guess wrong, it can be painful. You could be looking at life in prison in a worst-case scenario.
Any person subject to this chapter who willfully disobeys a lawful command of that person’s superior commissioned officer shall be punished—
1) if the offense is committed in time of war, by death or such other punishment as a court-martial may direct; and
(2) if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.
This is the standard you are up against.
Rule 916. Defenses
(d) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.
Discussion
The “person of ordinary sense and understanding” is a high bar to clear. If the President or the Secretary of War has directed the operation, a “person of ordinary sense and understanding” would probably think that the order to whack drug smugglers was legal. And read that last paragraph carefully. Even if the big guy is wrong, but the order was colorably legal, you don’t have to worry about someone hunting you down in the future.
This, by the way, was immortalized at the Infantry School as the “Calley Defense.” When Lieutenant William Calley was court-martialed for the My Lai Massacre, his defense was that when he was allegedly told by his superior to kill the villagers, his intelligence was so below ordinary that he couldn’t be held responsible for thinking the order was legal. It didn’t work.
The bottom line, consulting a lawyer is not, in the case of either blowing up drug cartel boats or invading Venezuela is not going to give you an out. If you object, have the guts to go into your boss’s office, throw your rank on his desk, and tell him you’re out.
At best, this story was the worst sort of clickbait (though it worked as I did click it, and I was incensed enough to write about it) or, more likely, part of an information operation designed to create the narrative that military officers working in the U.S. SOUTHCOM area of operations are lawyering up because they believe the operation is illegal.
Either way, PBS doesn’t deserve our tax money, and thanks to President Trump, they are no longer getting it.
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