'If You Can Keep It': Trump And Matters Of Military Law

0:07As of Thursday, the Pentagon says it's attacked 23 boats and killed at least 87 people as part of the Trump administration's campaign against drug trafficking in the Caribbean and Eastern Pacific. In the month since the first strike on September 2nd, one question has emerged in Washington that Defense Secretary Pete Hegseth cannot seem to shake. Are these boat strikes legal? The White House says yes, but several members of Congress, legal experts, and former defense and intelligence officials are casting doubts also disputed in Congress and, most importantly, in court, whether it's legal for President Trump to deploy the National Guard in cities across the country, according to the administration, to help with policing.

0:50Today, for the latest installment of our weekly politics series, If You Can Keep It, we've convened a panel of experts on military law to help us answer those questions and yours. I'm Jen White. And I'm Todd Zwilling. You're listening to the 1A Podcast. We get to all of it after this short break. Stay with us.

1:11Let's get into the conversation with our guests. Joining us from Jackson, Mississippi is Frank Rosenblatt. He's the president of the National Institute of Military Justice. That's a nonprofit advocating for the fair administration of justice in the armed forces and improving the public's understanding of military justice. He's also a law professor at Mississippi College School of Law and a retired Army Lieutenant Colonel. Frank, welcome to the program. Hi, glad to be here. Also with us from Charlottesville, Virginia, is Dan Maurer. He's a law professor at Ohio Northern University. He's also a retired Army Lieutenant Colonel and Judge Advocate General.

1:48Dan, welcome to the program. Hi, thanks for having me. So let's start with the boat strikes. Earlier this year, the Justice Department produced a classified memo, hasn't been released to the public, saying that U.S. troops involved in strikes would not be prosecuted for their involvement. Frank, is this sort of memo about immunity common for military operations? This is not uncommon. For those of us who were in the global war on terrorism, this is something that never came up. You knew that if you committed serious crimes, even on the battlefield, that you could be punished for those. But this sort of blanket immunity order raises more questions than it answers.

2:31So then why do it? I mean, why would service members need legal exemption if they're carrying out legal orders in the first place? Well, this is really making things, I think, more challenging rather than simplifying the life of our military members. And if I could give an example, I'm a baseball fan. Would that be okay? Yes, go ahead. I am too. Go for it. All right. So think of a baseball player like Shohei Otani. If Shohei receives an order, we're playing the Giants tonight. He doesn't need much guidance. He is well-trained, and he knows how to accomplish his task. But if Shohei receives an order, we need you to dance in the Los Angeles ballet tonight.

3:13He's going to have a lot of questions. And that is what's happening with the boat strikes. We have a well-established law enforcement model with the U.S. Coast Guard. They have successfully interdicted 212 drug boats since September. They are well-trained at intelligence gathering, seizure, criminal prosecution, and extradition. They have thought through contingencies. They know what they are doing. But then that abruptly changed. Now we declare that this is a war. We fire the top military lawyers. We promise immunity for any crimes committed. This all results in lots of questions from military members.

3:51And they're asking these questions because they want to do their jobs with competence and honor. Well, last week, President Trump and Secretary Hegseth doubled down on the boat strikes.

4:27Which is the entire point, right? Deterrence has to matter, not arrest and hand over and then do it again, the rinse and repeat approach of previous administrations. Dan, Frank laid out how these operations have been carried out under previous administrations, but what legal statute is the Trump administration using to support its ability to take this sort of preemptive action against these votes? Well, it doesn't appear that they're using any statutory authority whatsoever to do this. It seems like they are relying upon a designation of terrorism. So the State Department has statutory authority to designate certain groups, foreign groups, as foreign terrorist organizations.

5:09That happens not infrequently. But that designation as a terrorist group here might be factually unsupported. But even if it is, that doesn't give the administration any kind of legal authority to actually strike them with lethal force. What it does is simply rhetorically equate them or analogize them to other terrorist organizations that we have been striking lethally over the last 20-plus years in the global war on terror. Think al-Qaeda. Think ISIS. Except those military operations were legitimate military operations. There was an authorization for the use of military force, which is essentially how we do declarations of war these days.

5:52That's a congressional joint resolution. That is, Congress invoking its war powers to give the president the authority to use the military against overseas targets. Also, those other targets arguably fell under international law and self-defense. Now, that's somewhat debatable and controversial, but nevertheless, those are two distinct legal paradigms that don't provide any legal authority to the president in this particular case. So simply calling them narco-terrorists or designating them as a terrorist organization does not give them any kind of legal authority to do what they're doing. Well, Frank, as you alluded to, this is causing a lot of questioning among the ranks.

6:34And your organization, the National Institute of Military Justice, oversees the Orders Project. And that's a nonpartisan initiative connecting service members with legal counsel with military experience who can answer questions about the legality of an order they've received. In recent months, you've received more calls from service members than at any point earlier this year. Broadly, what concerns are they sharing?

6:59Well, military members, they thrive when they are well-trained and when they know their tasks. And when we very quickly tell them that they're going to do something that's completely different, they have questions about this. Many of the questions we receive are from people who are told that they are going to a National Guard deployment. They hear they're going to D.C. or Chicago, and they have questions about this because they're following the news, they're keenly interested, and they see that the legal answer to that question changes by the day. We're also receiving questions from those who are involved in military operations overseas, including the boat strikes in the Caribbean.

7:38People who, in many cases, these are people who tell us they are feeling pressure to apply their technical expertise in some sort of way so that senior political officials can claim that the military people unanimously agree that this is the right thing to do. Dan, what, if any, training do troops receive to be able to know whether an order could be violating the laws of war or is otherwise illegal? Right, that's a great question. So the Uniform Code of Military Justice, which is the binding internal criminal law system that applies to all the services all the time everywhere, actually includes a provision at the end of it that says troops should be or must be trained on some of the most salient provisions of the UCMJ every year.

8:28And that training typically comes from JAGs, military lawyers, in concert with the chain of command. So what should happen is that every year or so, there is a training that goes on involving these lawyers with the command teams at low tactical levels. Again, this is the ideal setting in which they go over scenarios. and they talk about things like, hey, if you're in this particular set of facts, what would you do, how would you handle it, and what would be permitted and what's not permitted? And certainly that training happens when a unit is set to deploy, whether certainly overseas into a hostile combat zone.

9:13They're going to get basic training on the laws of armed conflict, Things like distinguishing between civilians and combatants and unnecessary force. These core principles that undergird decades of modern law of war and the rules of engagement. So ideally they'll go through these kind of scenario-based episodes. With regard to other elements of the UCMJ, that's also supposed to be covered in annual training. Things like consequences of not following an order. for example, or certainly very, very high-profile crimes that get a lot of airtime in the media, like sexual assault in the military. So crimes related to sexual assault are discussed, and soldiers are trained about how to behave appropriately.

10:04So I think the underlying gist of the question, though, is to what extent did they receive training on distinguishing between a lawful order and an unlawful order. The problem with that is that out of any given day, there are thousands upon thousands of orders given from the mundane to the serious at all levels of the chain of command, from a junior sergeant giving an order to a private during physical training in the morning, all the way up to a general officer giving an order to a colonel. And most of them, the vast, vast majority, are clearly legal. They have no obvious connection to any crime.

10:45They don't raise any gray moral issues. They're simply followed as a matter of course. While we're hearing from you, Stephen emails, it sounds to me like military personnel are in a near catch-22. The law requires them to positively follow lawful orders and definitely disobey unlawful orders. If they don't get it exactly right, they face serious consequences. We'll pick up our conversation in just a moment.

11:13Let's bring a new voice into the conversation. Colby Vokey is a civilian lawyer representing people in the military. He's also a retired lieutenant colonel and judge advocate general with the U.S. Marine Corps. Colby, welcome to 1A. Thanks for having me. And we're hearing from you. One of you shared this. I served as an information systems technician in the Navy for eight years. As a first-class petty officer, the sixth enlisted rank, I challenged an order given to me while I was stationed in Washington, D.C. I did not believe the order was lawful. I communicated my refusal to my chain of command, and I alerted my elected representatives.

11:48Refusing the orders of the person who holds your whole life in your hands can have dire permanent consequences. Ultimately, the order turned out to be unlawful, But I was discharged and spent several years overcoming the stigma of a general discharge under honorable conditions. Others kill themselves rather than live with the shame. I do not regret my decision. Had I had more gumption, I would have refused several orders years prior. But I did not have the personal integrity I have now. Now, Frank, before we took a pause, Dan mentioned that in the normal course, a soldier or a sailor or an airman might get dozens of orders in a day, almost always legal.

12:27Usually it's not a question. It's when the questionable orders or illegal orders come up, what is an airman? What is a soldier or a sailor or a Marine? What do they do? Did you want to add something to that conversation? Yes, and I was a former military lawyer, but I just really want to de-emphasize the role of military lawyers here. Nobody says that some legal briefing I received just showed me the truth and I understood everything. This is a matter of training. When our soldiers, sailors, and airmen and Marines go out and do a mission, they practice and they work through contingencies. You know, those of us who went to Iraq for Fallujah and Ramadi, when our troops were entering the cities, they went through lots of iterations of what they could do.

13:13Could they enter a house? Could they search a civilian? And by practicing and training, they gained the confidence to know exactly where the boundaries were of what they could and couldn't do. Well, in November, six Democratic lawmakers who served in the military or the intelligence community made a video reminding active service members that they're allowed to refuse to comply with illegal orders. You all swore an oath. To protect and defend this Constitution. Right now, the threats to our Constitution aren't just coming from abroad. But from right here at home. Our laws are clear. You can refuse illegal orders.

13:47You can refuse illegal orders. You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution. Those Democratic lawmakers include five military veterans, Senator Mark Cowley of Arizona, Representative Jason Crow of Colorado, Representative Maggie Goodlander of New Hampshire, and Representatives Chris Deluzio and Chrissy Houlihan of Pennsylvania. The sixth is Senator Alyssa Slotkin of Michigan, a former CIA analyst. President Trump slammed the video saying it encourages the military to rebel. And here's what White House Press Secretary Caroline Levitt told reporters last week.

14:24All orders, lawful orders, are presumed to be legal by our service members. You can't have a functioning military if there is disorder and chaos within the ranks. And that's what these Democrat members were encouraging. It's very clear. And not a single one of them, since they've been pressed by the media, and I'll give you guys credit for that, can point to a single illegal order that this administration has given down because it does not exist. President Trump called the video seditious and in multiple social media posts suggested that the lawmakers that Jen listed a moment ago who produced it should be put to death.

14:58Colby, what was your reaction to both the video and the reaction from the White House? Well, I'd say first for the reaction to the video is I saw nothing wrong with the video whatsoever. In fact, what these members of Congress are saying is follow the law. Don't follow clearly illegal orders. And that's exactly what they're saying. So it's amazing that they They call this seditious because all they are doing is telling us exactly what we were trained to do in the military, which is you must follow legal orders. So it wasn't that big of a shock to me when I heard that. Now, the response to that is different.

15:43The response calling is seditious, claiming that they're seditious or it's creating mutiny or something, I thought was pretty far-fetched given what I heard on that video. Dan, your thoughts? Well, I agree with Colby 100%. There are definitions in the law to include how sedition and mutiny are defined, both in the UCMJ and in other federal law. And these statements simply don't meet those elements. They're not crimes. And they're simply exercising their First Amendment protected right to speak, kind of implicitly criticizing the administration. But implicitly criticizing the administration is also not a crime.

16:28The fact that it came from six Congress members is why the White House responded the way they did, calling it what they did. It is in no way and should never be taken as an actual allegation of legally defensible fact. They're just not. So there was a threat made against Senator Kelly to bring him back to active duty and to court-martial him under the UCMJ because he's a retired Navy captain. In my opinion, that prosecution won't go anywhere because you need facts to prosecute, and there are no facts that suggest a crime was committed. So I agree with Colby that it was odd to get that kind of over-the-top vitriolic response.

17:18And frankly, if there's anything that's unbecoming, it's the response to the administration. Well, Senator Slotkin, one of the senators who made the video, has said publicly that her office and other offices were getting questions from troops and from airmen, from soldiers, about what to do in general about illegal orders. They got so many questions, she says, that they decided to produce the video. Well, Frank, the White House says that troops weighing the legality of an order could lead to, quote, disorder and chaos within the ranks and the decisions about orders. Well, they often need to be made very quickly in the field.

17:56Of course, we know that. What avenues do service members have to ask questions about the legality of an order when they're in the mix, when they're in the fight, when the order comes down. In this case, there's a boat skimming across the water and somebody gets an order that they think gives them pause. Well, there are a lot of options. We vest a lot of agency in our military members. We have high standards for enlistment and officership, and we expect them to take the initiative and to accomplish the mission in a way that they know is correct and meets the guidance of their hires. Our troops are not like the automatons in some Bertolt Brecht play, just committing atrocities just because they are told to do so.

18:42So although most of the questions we get are well in advance of an actual illegal order, the troops would have some options if they get some order in real time. For example, shoot those protesters in the leg or execute those civilians on a boat, something like that. They could seek clarification. They could implement the guidance in a way that removes the illegal element. They can step away and resign, or they can say, you know what, I'm just going to accept what I'm told and do that. Those are all things that they are thinking about because everyone is thinking about right now what they would do when some sort of order like this comes up.

19:24Well, we got this from Brian who emails, I'm currently in the individual ready reserve after completing a full U.S. Marine Corps reserve contract, including a deployment. During my time in a reserve unit, we received very little practical education regarding the legality of orders or the application of lawful orders and rules of engagement. As reservists balancing civilian careers, it can be difficult to maintain a full and accurate understanding of these responsibilities, especially when our only exposure to military law is limited or outdated. So Colby Bryant might confront a situation like this.

20:02It happens in the movies all the time, somebody refusing an illegal order. It's pretty dramatic in Hollywood. But in the real world, what happens when a service member refuses an order? What does that look like? Well, normally what it looks like, because as Pam Bondi said, orders are presumed to be legal. So when somebody does not follow that order, they're usually going to incur some kind of wrath. So what often happens is they're charged with failure to follow an order. They can be removed from their position. Either administrative or criminal proceedings can be started against them. So that's not uncommon at all.

20:47Now, what we it's not uncommon that someone gets in trouble for not following an order or disobeying an order. But in most of those cases, the orders are lawful. And it's just that the person does not like the orders there. For example, you have somebody from the National Guard who is told that they're being activated and sent to one of these cities. And they don't like that fact and they're kind of against it. Well, without anything more specific, their general reticence to deploy or disagreement with it is not a basis to refuse that order. Now, however, if they're told while they're being activated to do something that is clearly unlawful, then that's when they need to clarify that with their superior.

21:43Say, I believe this order is illegal. And then, as Frank mentioned before, you're faced with those different options. But it's not uncommon for people who do refuse the order, even if ultimately is determined to be unlawful, to pay the price. Well, as we mentioned last week, the Pentagon announced it's investigating Democratic Arizona Senator Mark Kelly over what they say are possible breaches of military law related to his appearance in that video telling troops, you should not follow illegal orders. And I'm really curious, Frank, about the message that sends to our armed service members when they see a veteran, now a senator, stating the law and then seeing this type of retribution.

22:33What effect do you think that has on people who are currently serving? Well, not to overstate things, but this is really dire. This is going to affect not only the separation of powers and the ability of our elected officials to do their jobs, but it's going to affect the two million retirees. We ought to look for their voices on questions of national security. And now they are seeing if I speak out and say something that's unpopular, I might face a very serious consequence for exercising my First Amendment rights. And not only that, it's also our troops in uniform. They are getting the message that we're really walking on eggshells right now.

23:13And the kind of speech that they used to be allowed to engage in, things that didn't really have an effect on the military mission, but just their own personal expressions, people are really being chilled now. More from our guests and from you in just a moment.

23:31Well, a lot of you are writing in for advice and information from our experts. It's Allen in Georgia emails to say, what process of review would determine if the orders to strike boats of, quote, narco-terrorists are lawful? Is there a judge or a review panel in the Pentagon that makes that kind of determination? Well, Frank, who ultimately has the authority to decide whether a military order is legal or illegal? Well, this comes down to people using the training that they have. If you have worked on a team and everyone has done their job, then when you say, you know, fire that cannon in your artillery, you trust that the observer has given the correct information on the receiving end.

24:14But if you have reason to doubt that information, that the person is, say, just taken out of vengeance against civilians, then that's where you ought to jump in and say, wait, I have some questions here. And so that's where we're at because the biggest issue that we have in this, and Dan talked a little about this before, is there is no armed conflict. We're in a law enforcement paradigm, and we can't wish an armed conflict into existence just because we want to use JSOC and blow up boats. So, Frank, are those two different things? I mean, on the one hand, we ask who would be the final authority if somebody on a trigger refused to fire the missile that blew up the boat because they think that's an illegal order.

24:54There's two guys clinging to a piece of flotsam, and they're not going to do it. On the other hand, there's also going to be the determination maybe at some point what you just said, whether this is a state of war at all and whether this entire paradigm is legal or the boat strikes are legal. I guess those are two different things. Take question two. Who ultimately decides whether the, quote, narco-terrorist strike campaign in the Caribbean is legal in the first place? Well, our federal courts would most definitely punt on these questions. They would apply a constitutional doctrine called the political question doctrine and say those issues of war and foreign affairs are not really for the courts to decide.

25:39So no conclusive answers there. We would likely to see, you know, when Colby talked about the sorts of adverse consequences that can happen to someone if they are charged with disobeying an order, then it's going to be through some sort of military adjudication, the commanding officer may investigate the facts of what happened. And it's possible that the military member could experience non-judicial punishment, a separation, or possibly even a court-martial where they would go through the actual standards, look at the facts, and see, did this soldier have the right to do this or were they wrong?

26:12Well, we got this question from an active duty service member. Can you discuss within what law structures these events are, should be evaluated. What exactly are the international laws that apply to these boat strikes and how can we determine if they've been violated? Dan? Sure. So Frank alluded to it earlier that this is a law enforcement legal framework, a law enforcement paradigm, not a law of war paradigm. And under all modern domestic criminal law, including ours, a killing of a criminal suspect without due process is unlawful. It's called an extrajudicial killing or murder. And these are unlawful things to do as a government against any individual.