If you’re a law-abiding citizen and someone admonishes you that robbing banks is a crime, you would be inclined to laugh off the advice as obvious and unnecessary. If, however, you’re planning on carrying out a bank job — or have already done a few — you might react with feigned indignation that anyone could possibly ever imagine that you would ever commit such a terrible offense.
Hence President Donald Trump’s over-the-top rage after six Democratic members of Congress, all of them military or intelligence veterans, posted a video on Nov. 18 advising service members that they “can refuse illegal orders.” This is not exactly news; it is a bedrock principle that American troops “support and defend the Constitution” and follow the law.
Yet Trump reacted as if the lawmakers were urging troops to stage a military coup. In his typically understated fashion, the president accused the Democrats of “SEDITIOUS BEHAVIOR” and wrote, “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.” Trump added, for good measure, that their behavior was “punishable by DEATH!”
Trump’s obsequious secretary of defense, Pete Hegseth, who prefers to style himself as “secretary of war” in contravention of an act of Congress, immediately jumped into the social media scrum. He labeled the Democrats the “Seditious Six” and, while expressing regret that five of them were not subject to court-martial, he announced that the Defense Department was reviewing whether Sen. Mark Kelly (D-Arizona), a retired Navy captain and astronaut, could be recalled to active duty to be tried in a military court.
If the Pentagon follows through on Hegseth’s intemperate threat, the likelihood is that the case would be dismissed as swiftly as the politically motivated prosecutions of former FBI director James B. Comey and New York Attorney General Letitia James. (Any official tempted to do Trump’s bidding in Kelly’s case should Google “Speech or Debate Clause.”)
But the point of this exercise isn’t really to get a conviction — it’s to intimidate current or retired officers who might be tempted to speak out about Trump and Hegseth trying to compel the armed forces to do their bidding regardless of the law. This isn’t a theoretical concern; it’s something that probably happened already and is likely to happen again.
The Post reported last week that after the first U.S. attack on a suspected drug boat in the Caribbean — itself a probably unlawful act — Hegseth gave a verbal order to kill two survivors clinging to the smoldering wreck. Adm. Frank M. “Mitch” Bradley, head of the Joint Special Operations Command (JSOC), evidently transmitted the order to his forces, which then launched an additional strike that killed the two helpless survivors.
JSOC later claimed that the second strike was conducted so that the survivors couldn’t call other traffickers to retrieve their cargo and so that the wrecked boat wouldn’t impede navigation. This is blatant sophistry to cover the obvious fact that individuals rendered “hors de combat” — wounded or unable to fight — are not legal targets. The Defense Department’s Law of War Manual specifies: “Orders to fire upon the shipwrecked would be clearly illegal.” These are actions that you would expect from the Islamic State or the Russian army — not from the armed forces of a democracy.
Jack Goldsmith, a Harvard law professor who headed the Office of Legal Counsel in the George W. Bush administration, wrote online: “If the Post’s facts are correct, it appears that Special Operations Forces committed murder when the ‘two men were blown apart in the water,’ as the Post put it.” A working group of former judge-advocates general also weighed in: “Orders to kill survivors of an attack at sea are ‘patently illegal,’ anyone who issues or follows such orders can and should be prosecuted for war crimes, murder, or both.”
The facts are alarming enough to prompt even the Republican-led armed services committees in the House and Senate — typically loath to challenge the administration — to demand answers from the Pentagon. (Trump told reporters Sunday that Hegseth denied any knowledge of the second strike.)
Hegseth is typically unrepentant, writing, “We have only just begun to kill narco-terrorists” and posting a picture “for your Christmas wish list” of the children’s book character Franklin blowing up drug boats. Indeed, the administration may be gearing up for an armed attack on Venezuela that is being justified as part of the war on drugs — even as Trump announced he is pardoning former Honduran president Juan Orlando Hernández, who is serving a 45-year prison sentence in the United States for drug trafficking.
The Hernández pardon makes a mockery of Trump’s efforts to remove Venezuelan President Nicolás Maduro, who has been indicted on similar charges. But the armed forces would still be obligated to carry out a Trump-ordered attack on Venezuelan military bases or other regime targets (though not on civilians). That would fall under the category of “awful but lawful” orders. The boat strikes, however, appear to cross a legal line — and that goes double for the killing of survivors.
There is a good reason Mark Kelly and the other lawmakers felt compelled to warn service members not to carry out illegal orders. That seems to be precisely what the military is now doing at the behest of an administration that disdains any limits on the president’s imperial authority and treats war crimes as a joke. It is not Kelly who should be facing justice but, rather, Hegseth and the admiral who followed his order.
The post Pete Hegseth, not Mark Kelly, should be facing justice appeared first on Washington Post.
