OPINION / EXPERT PERSPECTIVE – When the U.S. launched a military attack against a speed boat traveling in international waters between Venezuela and Trinidad-Tobago, President Trump told reporters that the operation happened "over the last few minutes, (we) literally shot out a boat, a drug-carrying boat, a lot of drugs in that boat." While few may mourn the alleged 11 narco-traffickers who perished in the attack, all Americans should be concerned about how our military is being cut loose from its legal moorings by what appears to be the abandonment of the rule of law from the very top of our national chain of command.
What is equally – and perhaps even more troubling – is how an order to employ U.S. military power - arguably beyond the bounds of international and domestic law – made its way down a chain of command staffed with military commanders and legal advisors who are obligated to comply with these laws.
There is nothing surprising about a military operation generating significant legal and policy criticism. Critiquing such operations has, since September 11th, become a veritable cottage industry. What is however, surprising is the near-uniform consensus among former military legal experts that this operation violated both international and domestic law, a critique exemplified by retired JAGC Commander Mark Nevitt’s excellent commentary.
This was a lethal strike conducted outside the context of an ongoing armed conflict (distinguishing it from attacks like those directed against high-level al Qaeda or ISIS operatives) and without the justification derived from the exercise of self-defense in response to an imminent unlawful armed attack against the United States (or any other nation). And, as Nevitt notes, this attack deviated from decades of operational practice employed in response to such narco-trafficker activity (seize, detain, and prosecute).
Those supporting the administration will inevitably say that this legal handwringing misses the point; that these were ‘bad’ people who deserved the fate that befell them. But it is the failure to acknowledge the abandonment of the rule of law that really misses the point. More fundamentally, it is deeply concerning that military legal advisors at every level of the chain of command may have provided the proverbial green light for this attack, and perhaps even more concerning if they were cut out of the decision-making process (concerns exacerbated by Section 7 of the recently promulgated Executive Order 14215).
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Military lawyers are integrated into the chain of command for the vital purpose of ensuring that the leverage of U.S. military power complies with international and domestic legal obligations. As commissioned officers, they bear a singular loyalty to the Constitution. And as members of the bar, they bear an ethical obligation to "exercise independent professional judgment and render candid advice" on behalf of their client – the institution – not any particular commander.
Some may interpret that these obligations mean obedience to the orders of the President is absolute. This is mistaken. While such orders carry a powerful presumption of legality, loyalty to the Constitution and the rule of law it represents trumps personal loyalty to the President or any individual within the chain of command.
When an order from any commander (even the President) is assessed as clearly unlawful, the military lawyer’s duty is clear: advise his or her commander to disobey, and if that advice is ignored, elevate the issue to the military or civilian lawyers at higher command levels.
Of course, when the order emanates from the President, there is no higher command, but there remains a continuing constitutional obligation that transcends the chain of command. While highly unusual and perhaps a chilling scenario, the lawyer – even one in uniform - has the legal, ethical, and constitutional obligation to advise commanders of the obligation to refuse to obey any order assessed as clearly violating domestic or binding international law, and the consequences of failing to do so.
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The lawyer’s ethical obligation is completely aligned with this constitutional loyalty. While it may seem that a command legal advisor’s client is the commander, it is not. Instead, it is the ‘command’, then the military service, and ultimately, the nation that the lawyer represents. A commander is presumed to represent those entities, but the command lawyer does not owe a duty of loyalty and zealousness to the commander per se, but only as such a representative.
When the commander commits to a course of action inconsistent with the interests of the organization and the nation, the lawyer’s duty is clear: prioritize the latter. In more concrete terms, this means that a command legal advisor must object to any command decision inconsistent with binding legal obligations.
This points to the most troubling aspect of this recent attack: what happened to what is supposed to be ‘principled counsel’ (a term coined by the former Army Judge Advocate General to define the essential function of the military lawyer) at every level of command? Were there legal objections? And if there were, what happened in response? Were dissenting opinions ignored? Marginalized? Or perhaps even sanctioned?
These are questions every American should be asking. Why? Because if ‘principled counsel’ is steamrolled in this new Department of War, what will constrain the future abuse of military power?
Whether bolstering border security, backing up ICE agents, patrolling city streets, augmenting immigration courts, and now interdicting drugs with lethal force, it is increasingly apparent that this President sees the military as his favorite hammer, and every problem starts to look like a nail. That alone is reason for concern. When that tool can be employed with little to no regard for the law, there is really no telling where this road will take us.
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