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When I was an infantryman in the United States Army, my leaders drilled many different ideas into my head, from never leaving my post to “keeping my head on a swivel” to never leaving behind a fallen comrade. Pretty high up in the ideas I heard over and over again was that if I ever “double-tapped” a wounded fighter (shooting him again after he had already been incapacitated or incapacitated), I would probably go to jail. When I was first deployed during the troop surge in Iraq, I was 20 years old and had only a high school diploma: no one would have mistaken me for a lawyer. But even though some of the situations I found myself in were complex and difficult to handle, I was at least trusted to understand that unwarranted violence was illegal and that every time I fired my gun, I better be prepared to justify my actions. I was also repeatedly informed of my duty to disobey illegal orders.
The Trump administration has clearly had difficulty with this idea – or, more likely, a complete disregard for it. Defense Secretary Pete Hegseth appears to be an outspoken enemy of the standard rules of engagement, claiming to view them as handcuffs. During his first term, at the urging of Hegseth, then a television host, President Donald Trump pardoned several tried or accused war criminals. Now in his second term, Trump has moved from pardoning war criminals to formalizing his war crimes policy.
Since September 2, Trump has authorized strikes against several small boats in the Caribbean Sea and eastern Pacific Ocean, killing at least 83 people. The problem is that the United States is not actually at war with any of the people it killed in these strikes. While Trump has declared Venezuelan drug traffickers terrorists and legitimate enemies, Congress has neither declared war on Venezuela nor authorized the use of force against drug traffickers. As Trump himself said when explaining that we wouldn’t seek authorization to use force: “I think we’re just going to kill the people who bring drugs into our country. OK? We’re going to kill them, you know, they’re going to be as good as dead.” So already, these are not even war crimes, but rather pure and simple murders.
Aside from the illegality of the strikes, recent reports showed that in the first incident on September 2, two people survived the initial strike. Even assuming these were legal strikes, the military’s obligation under the U.S. Code of Military Justice and international law was clear: secure and care for the wounded and receive them as prisoners of war. Instead, Admiral Mitch Bradley reportedly ordered a second strike to finish off the survivors, citing Hegseth’s directive to “kill them all.”
When six Democratic lawmakers with military or intelligence backgrounds released a video reminding members of the military of their right to disobey “patently illegal orders,” Trump declared it “SEDITIOUS BEHAVIOR, punishable by DEATH!” » Since then, the administration has worked to convince the public that any order it issues must be legal.
It’s true that last year the Supreme Court granted Trump “absolute immunity” from criminal prosecution for any “official act.” However, this same immunity does not apply to Hegseth, Bradley or anyone else down the chain of command, all the way down to the person who pulls the trigger, and any of them could potentially be prosecuted for the murders under a future administration.
Let me say this clearly, as a lawyer and as someone who once followed orders for a living: America’s military has not been allowed to use “mere following orders” as a defense for more than half a century. Before World War II, the U.S. military could invoke a “superior orders defense,” which would excuse even illegal conduct as long as their actions were consistent with orders. However, the Nuremberg Tribunals after World War II established in international law that obeying an illegal order does not absolve an individual of responsibility for atrocities committed. The Uniform Code of Military Justice, the legal framework governing U.S. troops, has codified the same rule: a service member can refuse an order that is “patently unlawful.” Since the 1950s, every soldier, sailor, marine and airman has been trained on this.
These regulations are not simply ambitious: soldiers have been and continue to be imprisoned for illegal use of force, and the defense of “mere compliance with orders” has never saved them. When Airman 1st Class Thomas Kinder executed a detainee during the Korean War, he claimed – and other airmen corroborated – that his commanding officer said, “Take him to the dump and shoot him, Kinder.” » It didn’t matter and he was sentenced to life in prison.
When 2sd Lt. William Calley was tried on 22 counts of murder after ordering his platoon to kill between 350 and 500 civilians during the My Lai massacre in Vietnam. His defense highlighted his commander’s instruction to kill “every living thing” in the village. Following the advice of the UCMJ, the United States Court of Military Appeals upheld Calley’s conviction and sentenced him to 20 years of hard labor.
When military guards at Iraq’s Abu Ghraib prison committed horrific abuses against inmates, some claimed they were just following orders. Orders or not, 11 soldiers were found guilty of their crimes.
The military does not choose its commanders. They cannot shape the political climate. They can’t decide which talking head whispers in a president’s ear. But they are the ones who will be court-martialed and charged by the federal government if they cross the line. They are the ones who will live with the nightmares. They are the ones who will sit down in front of a lawyer one day and ask him: “Sir, do you think I will go to prison?”
We’re talking about the murder of real people with real lives and real families. Rules of Engagement exist for a reason: unjustified killings are detrimental to the mission and, more importantly, morally wrong. The best decision I ever made in Iraq was when I decided not to pull the trigger when I could have. This would have been justified from what I saw, but something was wrong. It turned out that the driver I feared might be a vehicle-borne improvised explosive device was just someone who wasn’t paying attention to our convoy after a late night at work. Because I held back, we were both able to go home that evening. We didn’t turn his family and friends against us, and I didn’t have to live with the murder of someone who was just trying to live their life.
To every soldier, every commander and every political leader: if you commit a war crime – or extrajudicial killing outside of an actual war – you can be prosecuted; if not by this administration, at least by a future one. Please don’t sentence yourself to prison and a lifetime of guilt over Donald Trump and Pete. Hegseth.
