While there may be little sorrow over the deaths of alleged drug dealers somewhere in the ocean, Americans should all be concerned about how our military is being used by the Trump administration, and what that implies for the future of our country.
Over the past several weeks President Trump has ordered American forces to kill at least 64 people whom the administration alleged were moving drugs headed for the United States. This campaign seems to be expanding and may soon include strikes into sovereign states such as Venezuela, Colombia and Mexico. Mr. Trump has unilaterally justified these actions by asserting to Congress that we are effectively at war — a noninternational armed conflict, as he calls it — with drug trafficking organizations.
Our military leaders are trained to evaluate the legality of orders they are given. As part of their professional education, the American values of respect for and compliance with the law are reinforced throughout military officers’ careers. They all understand that they have a duty to challenge any order they believe may be illegal — and disobey any order they know to be illegal.
The order to preemptively execute alleged drug traffickers at sea has never been considered a legal act before. The Justice Department informed Congress that it considers the strikes to be lawful and not to require congressional authorization under the War Powers Resolution. But many legal experts believe these strikes to be illegal; on Friday Volker Turk, the U.N. High Commissioner for human rights, said they violate international human rights law. Nevertheless, our military continues to carry out these strikes against vessels, intentionally killing people who, as far as can be determined, are not engaged in any violent, hostile act against the United States, have no perceived intent to engage in hostile acts against the United States, do not appear to be armed to carry out any attack and could be apprehended easily instead of killed summarily.
What happened to the requirement to disobey an unlawful order?
There is a protocol for what members of our military should do when faced with this type of situation. If an officer is concerned about the legality of an order, he or she turns to the unit’s organizational legal authority for a legal opinion. If needed, there is a legal chain of command that can provide higher levels of legal authority, too. That chain starts with military judge advocates within all major commands, rises from there to that Military Department’s judge advocate generals, the general counsel of the Department of Defense, and then the White House Office of General Counsel and the attorney general of the United States.
In the course of Mr. Trump’s second term, there has been a concerted and successful effort to put compliant and supportive lawyers in positions of legal authority within the administration and within the military chain of command. This is true in the White House, in the Justice Department and in the Department of Defense. Pete Hegseth has been very direct about this. One of his first actions as defense secretary, along with firing several senior leaders he viewed as too woke, was to fire some of the Military Department’s most senior judge advocate generals. He has openly bragged about prioritizing “maximum lethality, not tepid legality.”
Today I believe we can say with confidence that the legal chain of command for the military, at least at its senior echelons, has been populated with lawyers who will not say no to virtually anything Mr. Trump or Mr. Hegseth directs them to do.
This puts our military leaders in an untenable position. While they may question the legality of an order, once the department’s legal authority has ruled that the order is lawful, disobeying it becomes a criminal offense under the Uniform Code of Military Justice. They could be court-martialed for disobedience; to defend themselves, they must prove the order was illegal. Facing this situation, a few officers may, as a matter of conscience, still say no. But while I have enormous respect for the professionalism and integrity of our senior military leaders, I’m afraid they will be the exception. Most officers would almost certainly obey the order.
One of those exceptions may be Adm. Alvin Holsey, the head of the U.S. Southern Command, where the attacks on suspected drug vessels and their crews are occurring, who said last month that he was stepping down. We still don’t know the circumstances of his departure, but I have never seen a four-star officer leave a major command after what will be only one year, and after having served only one of the three years needed for retirement at his highest grade. Like many other events associated with the Trump administration, this is not normal.
This all leaves us with two critical questions: What other orders might Mr. Trump or Mr. Hegseth give that would involve the use of lethal force by our military? And is there any use of force that the president’s handpicked legal authorities would find unlawful?
During his first term, Mr. Trump proposed sending military forces to Portland, Ore., to respond with lethal force to protests. Gen. Mark Milley, who was then chairman of the Joint Chiefs of Staff, had the character and the courage to push back on this proposal. Importantly, General Milley was supported by the senior lawyer in the room at the time. In this administration, if the current chairman of the Joint Chiefs pushes back, we can be confident that the lawyers in the room will support the president.
Frank Kendall was the secretary of the Air Force for the Biden administration.
Source photographs by David Arky and Debora Vandor/Getty Images
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