War Without Law

 

"DEFENSE OPINION - By Thomas J. Wilson, III and Christopher R. Fee

"Those in command and those actually pulling the triggers are well advised that their actions may not be soon forgotten and that the “I was just following orders” defense was rebuffed in Nuremberg and at the My Lai trials of the Vietnam War era.

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When Adm. Alvin Holsey relinquished his command Dec. 12, it was amid growing criticism of attacks that began on his watch. Since the first U.S. strike on an alleged drug smuggler in September, the United States has carried out over 21 attacks in international waters, killing at least 81 people.

The Department of Defense disclosed recently that the first strike in September was quickly followed by another after two people survived the first hit. Defense Secretary Pete Hegseth claims that he didn’t watch the follow-on strike because he had another meeting, a proposition that both beggars belief and calls his priorities into question.

Although the strikes began this fall, the policy behind them took root in February when then acting Deputy Attorney General Emil Bove told his department’s top drug prosecutors that the Trump administration wasn’t interested in interdicting suspected drug vessels anymore. The U.S. should “just sink the boats.” This was a seismic shift in U.S. policy and would require highly questionable justifications for military actions.

Force as a last resort

The Trump administration argues the strikes are necessary to stem the flow of drugs to the U.S., but it is vital to underscore that the law is not simply whatever the president deems it to be. To the contrary, “under international human rights law, the intentional use of lethal force is only permissible as a last resort against individuals who pose an imminent threat to life,” according to Volker Turk, the U.N.’s High Commissioner for Human Rights.

Michael Schmitt, an international law scholar, former Air Force lawyer and professor emeritus at the U.S. Naval War College, said the attack that killed the two survivors “is clearly unlawful.” As Schmitt said, “I can’t imagine anyone, no matter what the circumstance, believing it is appropriate to kill people who are clinging to a boat in the water.”

Might does not mean right. Due process is necessary to ensure justice.

Top defense officials and the president continue to justify these actions by claiming America is engaged in “a non-international armed conflict with these designated terrorist organizations,” a designation it argues gives it the right to “conduct operations against them pursuant to the law of armed conflict.”

This rationale is striking, given that when individuals survived a recent U.S. attack they were repatriated, not held as prisoners of war nor arrested as terrorists.

A purge of Judge Advocates General

U.S. forces rely on senior Judge Advocate General lawyers to interpret international law and provide guardrails for commanders as they execute their missions within rules of engagement. In February, the Trump administration summarily fired the Judge Advocates General of the Army, Air Force and Navy. As the former Naval War College professor Tom Nicols puts it, “the first step in turning a military into a personal tool of power is not to fire the generals but to fire the lawyers.”

If sharp and unbiased legal minds are replaced out of hand, the internal system used to check for unlawful orders is effectively broken. With sparse information provided to the public, the attacks can only be assumed not to have risen to the level of compliance with international law, making them extrajudicial executions.

Traditionally, the U.S. Coast Guard, with Navy support, has served as the key force in combating maritime drug smuggling, following set and clear procedures that provide due process in a series of escalating actions designed to bring suspected smugglers to face trial in the United States. Replacing that effort is Operation Southern Spear, whose naval forces include an amphibious ready group with 2,000 embarked U.S. Marines, a carrier strike group and a special operations support ship. This level of force is not there to conduct law enforcement or drug interdiction.

Allies respond by limiting intelligence

These strikes are not executed in a geopolitical vacuum. Reports are surfacing that countries, most notably the United Kingdom, have curtailed intelligence sharing. This is counter-productive on several levels, not least regarding combating drug trafficking—the stated goal of the attacks.

Those in command and those actually pulling the triggers are well advised that their actions may not be soon forgotten and that the “I was just following orders” defense was rebuffed in Nuremberg and at the My Lai trials of the Vietnam War era.

Any assurance to the contrary offered by the current Justice Department has an unspecified “use by” date that may well be sooner than expected. This is not simply an academic debate on the laws of warfare. An officer who receives an order he or she considers illegal has a duty to discuss it with whoever gave the order. If, after that discussion, the officer remains unconvinced of its legality, they must resign their post.

These strikes, of dubious legality, are morally wrong, a blot upon the honor of the United States, and an insult to the brave men and women ordered to carry them out. Unchallenged, they can only threaten our fragile democracy."

ABOUT THE AUTHORS:

Thomas J. Wilson, III is a retired rear admiral in the U.S. Navy, and Christopher R. Fee is Graeff Professor at Gettysburg College in Gettysburg, Pennsylvania. Fee is also a faculty advisor to the college’s Eisenhower Institute and co-clerk of the northeast region of the American Friends Service Committee.