Advisory Opinions – “Kill Everybody”

Podcast by The Dispatch | Hosted by Sarah Isgur and David French
Episode Date: December 2, 2025

Episode Overview

This episode centers around a major Washington Post report detailing an alleged “no survivors” order in a Caribbean military operation, examining the profound legal and ethical questions it raises under the law of armed conflict. The hosts, Sarah Isgur and David French, offer a careful legal analysis, discuss historic and practical precedents, and scrutinize the implications of such orders. The episode also turns to current appellate news, including recent sanctions against Donald Trump’s legal team, a high-profile Supreme Court advocate documentary, the Vacancies Reform Act ruling affecting U.S. Attorney appointments, and the latest Trump-related prosecutions.

Main Discussion: The Legal Fallout of “No Survivors” Orders

(Discussed: 02:11–21:37)

1. Setting the Stage: Washington Post Reporting

• The Washington Post published a story alleging Secretary of Defense Pete Hegseth gave an order to “kill everybody” in a naval strike on a narco boat; subsequent orders apparently ensured no survivors, including a second strike on men clinging to wreckage.
• The hosts stress their focus is a legal analysis “assuming everything in this Washington Post story… is correct,” while expressing skepticism about anonymous sources (Sarah, 02:11).

2. Threshold Legal Questions

• David French explains “from Nuremberg forward,” the legality of war itself is decided by high command, not by every soldier or operator (04:07).
• Operators retain an obligation not to follow manifestly unlawful orders (“manifestly unlawful acts”)—citing the My Lai massacre and Vietnam-era precedents (05:40).

Notable Quote

“Once the ranks are ordered to combat, they're entitled to presume... that the actual military operation itself is lawful. Now once they get that presumption, however, they still are bound by the laws of war regarding any individual strike.”
—David French (04:07)

3. No Quarter Orders: Legal and Historical Context

• David: “A no quarter order … is an order to kill everyone. And the problem with it is that it absolutely conflicts with very basic principles of the laws of war.” (08:12)
• Such orders are illegal under U.S. and international law (Lieber Code, 1860s) and have been grounds for prosecution since WWII.
• Sarah questions—historically and hypothetically—whether it may ever be a mercy to kill instead of capture, especially in historical contexts (09:27).
• David: Argues that “A kindness to kill is always going to fail as an argument,” emphasizing that laws of war arose directly because “the effects that their violation has on combatants … whip both sides into an absolute frenzy… wars are prolonged… surrender is not an option.” (10:06)

Notable Quote

“If surrender is not an option, what ends up happening is wars become more vicious, more brutal. There's only a billion reasons why if you want to have any humanity at all in armed conflict, that killing of incapacitated people is [unlawful].”
—David French (10:54)

4. Analyzing the Orders and Military Conduct

• The alleged order—“kill everybody”—could be ambiguous, but if interpreted as “no quarter,” subordinates must clarify or refuse to comply.
• Sarah’s “war crime avoidance canon”: If an order is ambiguous, experienced officers would interpret it to avoid illegal conduct, questioning the plausibility of the facts as reported (12:34).
• They note that future acts (e.g., rescuing and returning boat survivors in following strikes) suggest the military recognized or adjusted behavior after potential war crimes (16:29).
• The resignation of the SOUTHCOM commander and vague, non-denial official statements add to the mystery.

5. The Need for Oversight and Investigation

• David: “This requires a serious investigation. This is not something that we can just leave open as one of those news stories… we never get a resolution to.” (20:30)

Appellate Roundup and Legal News

1. Upcoming Podcast Coverage & Supreme Court Previews

(21:37–23:55)

• Sarah and David preview future episodes (e.g., the Slaughter case), live blogging and post-argument podcasts, and several circuit court updates: campaign finance, state AG subpoena cases, and more.

2. Documentary Review: Supreme Advocacy with Roman Martinez

(29:55–42:28)

• Bloomberg Law’s hour-long documentary “Supreme Advocacy” follows Supreme Court advocate Roman Martinez during the AJT case (student ADA rights). The hosts offer both praise and critique:
  • Interesting facts: Bananas as a Prelogar argument ritual, the return of the “black car service” era for law firm runs to the Supreme Court (31:15–32:23).
  • Critique: Documentary misses an opportunity by not delving into the actual legal issues at stake, over-simplifying the narrative for the audience.
  • David’s Thesis: Legal coverage that doesn’t address substantive law is “inherently inflammatory” because it frames issues as merely good guys vs. bad guys (36:25).

Notable Quote

“A lot of legal disputes… the bad guy can be right on the law, and many times the good guy is just wrong on the law.”
—David French (36:41)

3. Sanctions Upheld Against Trump and Alina Haba

(44:05–50:40)

• The 11th Circuit upheld nearly $1M in sanctions against Trump and attorney Haba for a shotgun, frivolous RICO lawsuit against Hillary Clinton, James Comey, et al.
• David: Explains “shotgun pleading”—filing huge, scattershot, often unrelated claims as a litigation strategy (45:12).
• The court found many of Trump’s claims “frivolous” and their appellate conduct further subpar, noting only one narrow issue survived at all.
• Sarah: “The point is not to win. You know, the point is the headline… causing pain to the other side.” (50:40)

4. Vacancies Reform Act Decision (Third Circuit: U.S. Attorney Appointments)

(52:50–56:41)

• The court rebuffed DOJ attempts to circumvent the Vacancies Reform Act’s 120-day limit for interim U.S. Attorneys.
• The Trump administration’s maneuvers—firing the designated successor, withdrawing nominations, executive re-appointments—“did them no favors” (David, 54:24).
• Sarah: Wonders about the constitutionality of delegating Senate advice-and-consent powers even temporarily—an open doctrinal debate.

5. Update: Georgia Trump Prosecution Dismissed

(56:41–61:50)

• Georgia’s criminal case against Trump—once viewed as legally strong due to state-specific statutes and evidence (e.g., the infamous phone call)—was dismissed by the newly responsible official after Fani Willis was removed.
• David: Contrasts this “inverse of the Manhattan case”—Georgia had the legal substance, “but it was practiced miserably.”
  • Manhattan case (NY) was “improperly brought” but well-litigated.
  • Georgia case: “a case with a lot of merit that was practiced miserably.” (59:49–61:50)

Legal Education & Pod Corrections

1. Supreme Court “Some Rev” & “Shotgun Pleading” Explained

(61:50–64:02)

• Summary reversals (“some revs”) are bench-slaps where the Supreme Court quickly overturns egregiously wrong lower court decisions without full hearings—rare, and often a signal of severe error.
• Two new legal terms for listeners this episode!

2. Fourth Circuit as the “New Ninth”; Circuit Court Reversals

(64:02–65:29)

• The hosts note the Fourth Circuit’s 0–8 record at the Supreme Court (suggesting it’s now the “liberal outlier” court, replacing the Ninth).

3. Party Presentation Doctrine – Judge Bumatay’s Federalist Society Speech

(66:02–71:02)

• Judge Bumatay advocates for a moderate approach: while courts rely on party-supplied arguments, judges must ensure that the best, most accurate legal theory prevails—even if not fully briefed (“Judges are never obligated to follow the party's agreement to incorrect law.” – Sarah quoting Bumatay, 68:37).

Memorable Quotes & Moments

• “A kindness to kill is always going to fail as an argument.” — David French (10:06)
• “If you’ve got an ambiguous order… why would you interpret it the way that leads you to commit a war crime?” — Sarah Isgur (13:31)
• “In many ways, the best defense against Trump has been the conduct of his own legal team.” — David French (50:10)
• “This is our naw dog candidate of the month.” — Sarah Isgur (56:33)
• “A case with a lot of merit that was practiced miserably.” — David French (61:00)

Timestamps for Key Segments

• Main Story (Washington Post, “Kill Them All” order): 02:11–21:37
• Supreme Court documentary critique: 29:55–42:28
• 11th Circuit upholds sanctions on Trump and Haba: 44:05–50:40
• Vacancies Reform Act/US Attorney decision: 52:50–56:41
• Georgia Trump case dismissed: 56:41–61:50
• Legal terms explained (Some Rev, Shotgun Pleading): 61:50–64:02
• Circuit court reversals & party presentation doctrine: 64:02–71:02

Tone and Takeaways

The episode balances skeptical, technical legal analysis with pragmatic skepticism regarding high-level military and DOJ conduct. Both hosts are intent on grounding headline-grabbing stories in legal precedent and practical reality, often expressing disbelief at apparent disregard for “basic stuff” under the laws of war or statutory interpretation. Their tone is collegial, occasionally wry, and often draws on a deep well of historical knowledge to contextualize today’s controversies.