General Mark Hertling (4:06)

No, it is not only against the law, Ben, but it also is used as an example in a manual within the Pentagon that shows exactly what not to do. An example in that manual says, for example, if there's a ship that's hit and there are people floating in the water who are swimming around after the boat begins to sink, it specifically would be a war crime if you shot them. So, I mean, this is even given as an anecdotal example in a Department of Defense manual on the laws of war. The other thing is, this has been beat to death all day today. But I'll just add another beating of the horse to it that we don't even know if we're legally in a war. This appears to be another dynamic of are we in a criminal action or counter criminal action against drug smugglers, which is a crime? Are we on a, in a war against narco terrorism? Which hasn't been declared. And if you are then an objective of hitting small boats with, with drugs on them would not probably be the campaign plan that a four star general would put together. You know, it would be like a.

Military Analyst/Commentator (5:29)

Tactical battle against a squad versus trying to get to where the sources of these things are.

General Mark Hertling (5:36)

You add to that the confusion of what the President is saying about, well Pete told me he didn't do this on the, on Air Force One yesterday during the same trip where he pardoned a major drug lord.

Military Analyst/Commentator (5:51)

And while the, the drug mules, let's.

General Mark Hertling (5:57)

Just call them what they are, are being destroyed on sea and potentially double.

Military Analyst/Commentator (6:02)

Tapped or at least that's the allegation.

General Mark Hertling (6:04)

Hits being hit twice, first on the boat and then when they're hanging off to the side. When, when you have someone who has been incapacitated like that.

Military Analyst/Commentator (6:15)

The formal turn term is urs de combat, which means they are outside the realm of con combat. They have been become a casualty or someone who can no longer fight and they are no longer, they no longer have the ability to be struck by fire. It's considered both an illegal and an immoral act. So all of these things combine to that. But there's even more that we can talk about too between the confusion of whether or not this is a criminal, an attempt to stop criminals, an attempt to go to war against Venezuela and its surrounding areas, the chain of command of who issued the order and how and what kind of an order was it, what was perceived versus what was actually given. You know, a military commander may perceive that he was given an order that wasn't quite in the directive, but that has to be proven in a hearing or a court martial. And you then have to take a.

General Mark Hertling (7:17)

Look at not only the leaders who.

Military Analyst/Commentator (7:19)

Executed the event if it's determined to be a criminal act, but also who contributed to those acts, the people that fired the guns were observing in the aircraft or the drone overhead. And also the ones who knew anything about the order being transmitted.

Ben Parker (7:40)

Yeah, I want to get to all of that through the entire chain of command. But first I do want to just double down on all, all the ways this is at least legally ambiguous, if not if what the Post reported was true, just illegal. So first you've got the constitutional aspect of it that you mentioned, which is are we in a war? Are we not? Did Congress allow this war? Now that's a question that goes back centuries really. I mean that's one of the fundamental tensions. The American Constitution doesn't mean it's good. That's A little more in the realm of normal. Then there's the question of is this actually a war or is this using the military for, like, a policing function that maybe the Coast Guard, which is not exactly part of the Department of Defense, would do? That could be problematic. Then there's the military law component of it.

General Mark Hertling (8:28)

Right.

Ben Parker (8:28)

It is against American military laws, in addition to international humanitarian law, as you said, to target people who are out. So are newer. To become non combatants, essentially. Right. You're not allowed to do that. And this is an act of war against Venezuela. Right. I mean, if we are just going out and killing Venezuelan citizens on the high seas in Internet.

General Mark Hertling (8:51)

Yeah.

Ben Parker (8:51)

And we don't even know if these people are actual drug traffickers or not. As far as I know, the administration has provided no evidence that they are. So it could also just be straight up murder.

General Mark Hertling (9:01)

Well, one of the things on that last point, Secretary Hexa said, We killed 11 people in this boat. They were all members of a terrorist organization. But truthfully, I think any investigation or any hearing in Congress is going to say, okay, give us the names of those people who. Because when. When terrorists were targeted during the wars in Iraq and Afghanistan, there was always the hue and cry about how they were targeted and what occurred. But you at least always had an alleged name for that terrorist, that they were number one in Al Qaeda or they were the financier of ISIS or what, Whatever. You know, we're just giving this lump group of people, these 11 people in this boat that were considered part of a Venezuelan terrorist organization.

Military Analyst/Commentator (9:49)

Oh.

Ben Parker (9:49)

And it goes beyond that. I mean, we're really going down a rabbit hole here. But at least in Iraq and Afghanistan, there was an authorization from Congress that basically said, okay, we're at war with the Taliban, we're at war with Al Qaeda, and we're at war with their allies. Right. And so you include ISIS and you include Al Nusra Front, if you want. And like all the. All the different options, you could say that's all the same master organization. And people have debates about that. But Congress never said we're at war with the Venezuelan drug traffickers, if that's even who this was. President Trump just said, I'm declaring them a terrorist organization, which doesn't mean we're at war with them.

General Mark Hertling (10:22)

Correct.

Ben Parker (10:24)

Okay, so let's talk. You talk. You mentioned this earlier. Let's talk about the chain of command. You have written now several good pieces of the Bulwark, which I recommend for everyone about why and how members of the American military are trained not to follow illegal orders. So what should have happened here if indeed this wasn't a legal order? And what did happen here and why, as far as you can tell?

General Mark Hertling (10:50)

Yeah. If you're a soldier of any rank, you have the ability and the requirement to question any order that you consider illegal. So if I'm Private Smith and you're Sergeant Parker and you tell me, hey, go shoot those prisoners immediately, my morals say this isn't the right thing to do. So I'm going to say, sergeant, are you sure you really want me to do that? Because I think that's an illegal order. If you come back and say, hey, hurtling, go kill those guys, then it's my duty to disobey that order. If you take it up the chain.

Military Analyst/Commentator (11:26)

Of command a little bit, when you.

General Mark Hertling (11:28)

Have more authoritarian rules, captains and majors and colonels, then if you get an illegal order from your superior, you not only question it, but then you can go to the staff judge advocate, the so called jag, and say, this appears to me to be in a legal order. What should I do? Or you go to the Inspector General and say, hey, my commander is always ordering me to do things that I don't think are illegal. Here's the situation. And the Inspector General looks at it. Or you go to your more superior commander and report what happened. So there are ways for Captain Hertling to then question these kind of orders. When you're talking about the level that we're speaking to, the three and four star general level, part of their oath.

Military Analyst/Commentator (12:15)

And the oath of all officers is.

General Mark Hertling (12:18)

To stand in the way of any kind of violation of the Constitution for legal and moral purposes. But it's also to protect the soldiers under your command. I don't want to be given an illegal order because I'm now going to have to pass it to someone else who executes it. That could be the situation here. If a three star or four star general got an order from Secretary Hegseth as a hypothetical, then told someone else to shoot, and they didn't know what they were shooting at all, they knew that they were being given an order by a commander they could be cleared. But they are still in that chain of of implication, if you will. So all it seems confusing. And truthfully, that's why we talk so much about it in the military. We give law of war classes at every level for both officers and even for brand new privates coming in during basic training. It's understood that you don't obey illegal orders.

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Ben Parker (14:40)

We're going to go down a little bit of a rabbit hole here too, because it's interesting to me that the, the officer that they, that the Pentagon is now pointing to is not the, the four star with command over the Caribbean area. Right. Or Caribbean, South America, where this happened, which would be the south, the Southern Command commander. It's the commander of Special Operations Command. And you know, we all remember the, from the Osama bin Laden raid, the, the footage of the President, the Vice President and a bunch of the huge numbers of the cabinet all gathered around to watch that raid live.

General Mark Hertling (15:21)

So the Joint Chiefs, the Secretary of Defense were all watching that live?

Military Analyst/Commentator (15:26)

Yes.

Ben Parker (15:26)

And, and so it sounds like in this situation, if the post reporting is correct, you also had a situation very different from what you would have experienced when you were, you know, commanding a division in Iraq and you were in charge of tens of thousands of people on a whole staff. It sort of sounds like it's a direct line from the four stars and maybe the Secretary of Defense to the guys with their fingers on the button. How are you supposed to say no in a situation like that? If you're the guy who's Got to decide I'm going to shoot the second missile or not.

General Mark Hertling (15:56)

Yeah, that's, that's part of the dynamics of when you push a three or a four star general into a situation like this. They know that they should not obey illegal orders. But they're also pressed by the relevancy of time and tempo, what's going on, the context and answering to your boss and making sure you want to get the mission right. And you know the Sergeant Parker telling Private Hertland, go shoot that group of prisoners. That's a relatively small group of people. What you're talking about here are three and four star generals who are obeying orders they think are coming from the Secretary of all Defense and potentially the.

Military Analyst/Commentator (16:37)

President of the United States, even though.

General Mark Hertling (16:39)

They still realize it's an illegal order. That's why truthfully, I'll take a segue here. That's why when Admiral Halsey retired, or Secretary Hegseth announced his retirement on 16 October, which by the way, these dates are important, it caused my hairs on my neck to stand up because you don't retire as a brand new four star general. He had only been in the job.

Military Analyst/Commentator (17:05)

For nine months and say, hey, I'm.

General Mark Hertling (17:07)

Now going to retire. Something else was going on because he doesn't retire as a four star, even though he's been promoted to that rank. He will retire as a three star general. So that's giving up a whole lot if you're a combatant commander. So something must have pushed him to do that. There were also reports.

Ben Parker (17:24)

Sorry, just to interject here real quick, Admiral Halsey is the SOUTHCOM commander who has no real jurisdiction over the Caribbean, not the Special Operations commander who is the one the Pentagon is pointing to. Right. So the guy who normally would be in charge there has suddenly retired and given up a lot of pension and other thing and a life in service to do that. Right.

General Mark Hertling (17:44)

Well, in terms of SOUTHCOM coming into your area of operation, and I've got a lot of experience with this, you still are the, the combatant commander. The SOUTHCOM commander, Admiral Hydraulic is still what's called the area commander. So he controls everything that goes on in that area. But truthfully, when Special Operations Command or JSOC comes into your area to hit a target, you are involved, you are told and you give permission to be in your area. But you don't control that force. They are a supporting force in your area. You can tell them don't do this, but they kind of act under their own authority directly to the Secretary of Defense. And because both those four stars have a direct link to the sec, death one is not underneath another one. Which brings up, I think we should talk about dates and personalities and positions. This hit on this boat that is in contention occurred on 2 September. At the time Admiral Mitch Bradley, who is at the center of all of this today was not the Special Operations Command commander.

Military Analyst/Commentator (18:57)

He was a three star general as the JSOC commander, the Joint Special Operations Command.

General Mark Hertling (19:04)

So he's the guy that swings the.

Military Analyst/Commentator (19:06)

Pipes and kills the terrorists and does.

General Mark Hertling (19:08)

All the kinetic operations where his boss, the four star commander is the Special Operations commander commander.

Military Analyst/Commentator (19:17)

So there's SOCOM at the top, JSOC directly underneath them. Who is the, the action agent, if you will. I'll put it in those terms.

General Mark Hertling (19:27)

So Mitch Bradley, Admiral Mitch Bradley was.

Military Analyst/Commentator (19:31)

This JSOC commander conducting the attack. The southcom commander at the time was an army general by the name of Brian Felton.

General Mark Hertling (19:41)

He was an army four star special.

Military Analyst/Commentator (19:44)

Operator who gave up command on 3rd October at a change of command ceremony.

General Mark Hertling (19:52)

He turned over Special Operations Command to newly promoted four star Mitch Bradley who.

Military Analyst/Commentator (20:01)

Had been the JSOC commander before.

Ben Parker (20:04)

Now that's a month after this boat strike, right?

Military Analyst/Commentator (20:07)

Now another factor here, all of that took place on the 3rd of October. So a month after the boat strike both of those individuals would have had to have known the details of that strike or at least talked about it. The third person that would have had to have known about it was Admiral Bull Halsey, The Southcom commander, four star admiral who Hegseth announced his retirement on the 16th of October. Now I'm saying this from the standpoint of a guy who understands changes of command and when people do things and why they do things.

General Mark Hertling (20:44)

It seems pretty interesting to me that.

Military Analyst/Commentator (20:48)

All of this centered around the change of command between jsoc, SOCOM and a retirement announcement of southcom. I'm not trying to present any conspiracy.

General Mark Hertling (21:00)

Theories, but I think these are the.

Military Analyst/Commentator (21:02)

Kind of questions that will be asked.

General Mark Hertling (21:04)

On, on any kind of congressional inquiry.

Military Analyst/Commentator (21:07)

Or perhaps even at any kind of disciplinary action later on. And as we saw today in the White House, Carolyn Levitt put all the blame on the military commander doing what he was authorized to do. Very interesting term that she used at the press conference. Authorized, not legal, not unlawful, but authorized. So those are some other factors that I think we have to consider. This could be, this could become, let's just put it this way, a very big congressional inquiry and perhaps disciplinary action for three four star generals and a lot of people on Their staffs that were potentially involved in this, based on what we now know is Secretary Hegseth potentially telling them to conduct an additional strike. One other thing on that regard too, and I'm sure you've got a question on this. Remember when all of this happened and people were questioning the first couple of boat strikes, Secretary Hegseth repeatedly put out tweets or true socials or whatever social media it was on that in my view, were not only condescending but also immature for a secretary of defense talking about additional killings. You know, today he put out, or over the weekend he put out the meme of the turtle.

General Mark Hertling (22:33)

You know, it seemed like he wasn't.

Military Analyst/Commentator (22:35)

Taking any of this very seriously, which tells me he knew exactly what happened and was proud of it, by the way.

Ben Parker (22:43)

Yeah, that would not shock me. You know, I really. Here's where I want to get into a little bit of, a little bit of political analysis. It seems to me that maybe the White House, the administration just made a mistake because you already have the Republican chairman of the House and Senate Armed Services committees and the ranking Democrats all agreeing, saying, yeah, we're going to investigate this. You know, we're going to look into this. As Trump would say very strongly, we'll see what they do. But now you've made Admiral Bradley, the Special Operations Command commander, your scapegoat. If you were Admiral Bradley and you got a letter saying the Senate Armed Services Committee would like you to come testify, would you not tell them everything that happened?

General Mark Hertling (23:26)

Absolutely, I guess, no hesitation there. In fact, when senior general officers, this is something that is little known by the American public, when you're promoted up through the ranks, up to the rank of two star, it's usually performed by your service because they see your potential to lead different organizations. When you get into the rank of three and four star, you are promoted along with an assignment. So for example, when I was promoted to or when I achieved the rank of three star, it was specifically to lead an organization that had a three star commander. When that happens, you also sign a letter when you're given that higher rank saying, hey, I understand that I'm being wearing the rank of a three star general in order to command this organization. And when I'm done there, if I don't get another command at three star level or four star level, then I should, then I will submit my retirement papers and you sign that letter. So when you go into that first three star job, you sign a letter saying, hey, I know if, if I'm not selected for another position, my rank is going to stay the same, but I got to retire or if I get promoted. That's confusing, but that goes to the Senate, and the Senate actually keeps that, that letter on record undated until it's time for you to retire. So one day when I was commander of US Army Europe, I got a call from the vice chief and he said, hey, Mark, you're a three star. We don't have another job for you. There's no four star positions opening. So we want you to retire in December. Yes, sir, you got it. I will, you know, understand that's, that's.

Military Analyst/Commentator (25:14)

The way it works.

General Mark Hertling (25:15)

But in these cases, people are submitting their retirements before they're told to retire because they understand what's going on, if that makes sense.

Ben Parker (25:24)

Yeah. And what that means is that Admiral Bradley already knows that he is possibly on his last assignment. So the difference between retiring and telling Congress everything he knows or even not retiring and the future of his military career.

General Mark Hertling (25:39)

Yeah, I'm sorry, Ben. I went down a rabble and didn't answer your question. When you sign that same letter, that letter also says that you promise to give your best military advice to the Congress when they ask for it. So when you're brought before the Congress for some kind of committee, no matter what the committee is, you know, if your advice is contrary to what the Secretary of Defense or the President says about a military operations, you're subjected to telling what your advice is. The perfect example that some of your listeners may know is General Rick Shinseki during the prelude to the 2003 invasion of Iraq, where Secretary Rumsfeld was saying, we can do this with 200,000 forces, 200,000 soldiers. Rumsfeld was testifying before Congress was asked the question, is 200,000 enough? And he said, in my best military judgment, it's half the size of the force that we need to. Which created great tension between the civilians and the military. But it was his best military advice, and it proved to be true.

Ben Parker (26:45)

Yeah, no, he was, he was proved pretty right on that one. Okay, so we've talked a lot about the guys who wear stars in their shoulders. They are very important in stories like this, but not as important as the people who are really in charge. And just the last thing I want to talk about. Here is the piece you wrote for us today. It's up on the Bulwark right now, and it's about Pete Hegseth and what happens when you don't have moral leadership at the top of an organization. So why don't you just tell us about your experience seeing this in combat and what you think Pete Hegseth's responsibility is now to tell the American people Congress about what happened truthfully and what sort of responsibility you should have before the Congress.

General Mark Hertling (27:26)

Well, whenever a Cabinet official testifies before Congress, they usually raise their right hand and swear to tell the truth. That's what Secretary Hegseth has to do. And he will be put in a very difficult situation, I would suspect. And part of the reason I suspect that is in this most recent Bull work article having to do with his past experiences as a lieutenant in in combat. When you read the article as you have, because you edited it. Thank you for that. We talk a little bit about some of the moral problems that the army had in the 2003 through 2006 time frame. Obviously, everybody knows about Abu Ghraib. Not many people know about the Black Hearts, Black Heart scandal that occurred in 2005 with a brigade out of the 101st. But there was another scandal called the Tartar island scandal, which didn't receive as much publicity. It was another brigade out of the 101st where a couple of soldiers went in. They were allegedly told by their brigade commander as they went onto this island in the middle of outside of the city of Samara in Iraq. When they went on this island, there was nothing but terrorists there, so kill every military age male on the island, which they did to include prisoners. And they were convicted for it and served some sentences. But the commander who told them that kill every military age male was also relieved of his command, suffered some other consequences. Secretary Hegseth.

Military Analyst/Commentator (29:03)

Was a young lieutenant in that unit, and a lot of lieutenants in that unit liked that commander, adored him. He was a very good leader, but he gave some very bad moral judgment and some bad orders and he was held accountable for it. So when you hear Secretary Hegseth talking to all the four stars, admirals and generals and their senior enlist advisors, and he says things like rules of engagement are too tight. We're going to open those things up. We're here to be a kinetic force. We're out here to do the duty of our, you know, of our military force.

General Mark Hertling (29:38)

You can kind of see where his.

Military Analyst/Commentator (29:40)

Background plays into this. And you could also probably see the stoic looks on some of the senior military commanders that have more experiences in that room saying that's not who we are. We obey legal orders, we obey rules of engagement. We obey the laws of international law and the laws of land warfare and the Geneva Convention. But that's not quite where he sees it. And I think there's a lot of implication on some things Secretary Tegseth has said since he's become Secretary of Defense that I think may get him in a little bit of hot water during these hearings.

Ben Parker (30:17)

Yeah, well, I hope there are hearings. I hope they're very serious. And I hope, as you call for in this piece, Congress launches a full and thorough investigation into what happened here. Because the idea that our political leaders, our civilian political leaders who are ultimately responsible to us, to us, the voters, are putting our military in a position to either disobey or carry out irregular orders and war crimes is completely unacceptable. General, thanks so much for joining me.

General Mark Hertling (30:46)

If I can say one thing to that, Ben, it. It affects not only the discipline of.

Military Analyst/Commentator (30:51)

The force and the moral implications that.

General Mark Hertling (30:54)

These kind of orders are given to the military force in a bipartisan arena that people who swear their oath to.

Military Analyst/Commentator (31:02)

The Constitution, but it also starts affecting.

General Mark Hertling (31:05)

And degrading the institution and causing additional.

Military Analyst/Commentator (31:09)

Divisiveness within the American society. And that's not what the American military is supposed to do.

Ben Parker (31:15)

Yeah, it makes us all worse off. But you can say that about a lot of things this administration does. General, thanks so much for joining me.

Military Analyst/Commentator (31:21)

Thanks, Ben.

General Mark Hertling (31:22)

Appreciate it.

Military Analyst/Commentator (31:22)

Have a good night.

Ben Parker (31:23)

You too.

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