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- [00:00]
Howie Mandel
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- [00:30]
Margaret Donovan
Can you grab one more thing?
- [00:31]
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- [01:00]
Ben Parker
Hi, I'm Ben Parker from the Bulwark.
- [01:03]
Mark Hertling
And hi, I'm Mark Hertling, retired Lieutenant general, also from the Bulwark. And this is Command Post. And one more time tonight we're having the great Margaret Donovan, former assistant United States Attorney for the District of Connecticut. She served six years in the United States army and was a captain in the Judge Advocate General's Corps. And the last time we had her on it was a smashing success. And, and we have even more legal stuff to talk about tonight. So, Margaret, welcome. Thanks for joining us.
- [01:33]
Margaret Donovan
Great. Thank you so much for having me again.
- [01:36]
Mark Hertling
Got it.
- [01:37]
Ben Parker
We're talking all about Iran today, all about the war in Iran. And specifically we want to talk about this threat Donald Trump made against Iran's civilian power generation, civilian power plants. So we're going to start with the threat originally. We're going to talk through that. Then we're going to talk to his sort of update slash walk back. So we'll get to that later and at the end we'll zoom out and ask some some broader questions. Like I couldn't be more excited to be talking to the two of you about this to help us all get smarter. But why don't we go ahead and start. This was March 21, 7:45pm we can start with this Trump threat post he made on his social media platform, threatening that if Iran didn't open the Strait of Hormuz, we were going to, quote, obliterate the various power plants, starting with the biggest one first. If we could pull up that that Trump threat posed for people to see. Sounds like maybe we're having trouble pulling it up. Yeah, I just summarized it. Yeah. Okay, so I just summarize what it says. It was a. He threatened to start bombing civilian power plants in. In Iran. So, Margaret, why don't we start with you as a military lawyer. What is the first thing you think when you hear that kind of threat being made?
- [02:55]
Margaret Donovan
Yeah, so I also saw that tweet or social media post, whatever you want to call it when it came out, and my first thought was, this seems illegal, but you should understand that you actually can target, in certain circumstances, civilian infrastructure. And that's kind of a shocking thing for people to learn, I think, when they begin to think about targeting in a combat environment. Civilian infrastructure generally is categorized under Joint Chiefs of. Under the Joint Chiefs of Staff's instruction and other DoD policy under two different categories. You have category one, no strike facilities, and category two, no strike facilities. And so those are what's known as protected status. A protected status basically gives some type of civilian entity exactly what it sounds like it is protected from being striked. But I just told you that you can sometimes actually strike civilian infrastructure. Right. And so the test for that is if something has lost its protected status, and so a civilian entity could lose its protected status by basically by being used for some type of military purpose. So I saw contemporaneous with when that tweet came out, or maybe it was within the first 24 hours. The US ambassador to the UN, Mike Waltz, said that the power plants he believed were legitimate targets because they were controlled by the irgc. So that itself is not the test for whether something loses its protected status simply being controlled by the irgc. You could say that about many things in Iranian society. It doesn't make them targetable. A civilian entity or a civilian facility like that will only lose its protected status if its nature, location, purpose, or use somehow makes it a contributes to the enemy's military action, or if somehow the destruction, capture, or neutralization of it will give your side a definite military advantage. And so anytime that you do a target in this type of environment, you're looking at the four principles of armed conflict. But specifically, if you're looking at civilian targets, you need that target to pass one of those two tests. And so my problem with this tweet is that the advantage I think that the President was trying to convey here, I think that we're all looking at, is to lower gas prices, which isn't actually a legitimate military objective. Right. That's just like an economic goal. It's a mistake that he sort of. We've kind of blundered ourselves into here and he's trying to undo. And so the idea that you could inflict this amount of damage on a civilian population simply for something that does not appear to be a military advantage, I think is difficult to sort of square with those four principles of armed conflict that I think we talked about on our first show that you look at with any strike. Is it militarily necessary? Is it proportional the damage that you're going to cause? Is it proportional to the civilian collateral damage that you may cause? Are you properly distinguishing in between military objectives and civilian entities? And are you causing unnecessary suffering? And I think that a strike on a power plant that's going to wipe out power for an entire civilian population that already doesn't have the Internet, remember? And so they're relying on this for their basic needs without actually having a concrete military advantage articulated. I think that that's going to be very difficult to fail to pass any of those four standards. I think it would probably fail all four. Now, I say that, but I just want to caveat everything. Maybe there's some intelligence out there that the DOD can rely on. Maybe there are intelligence reportings, there are intelligence reportings that we don't have. I don't have that you don't have that say that actually this power plant is being used for the irgc, in which case the analysis could change and you could say there is a military advantage. I need to take out the civilian target in order to advance a military operation.
- [06:30]
Ben Parker
But it would have to be for all of them. Right? Because he said, like we're going to start with, we're going to be targeting all of their power plants. That have to be some crazy intelligence they're looking at to make that.
- [06:40]
Margaret Donovan
Yes, completely. And we've seen the intelligence that they've used on strikes in this war. For example, the strike that is widely believed to be the US Was responsible for on the elementary girls school. We've seen that that intelligence was over a decade old. I have some doubts as to the reliability of some of the intelligence that we're using for these strikes. So you would want that to be really nuanced. And sir, I don't know if you have this experience as well, but whenever we would have these types of facilities that we would have to strike something that falls into, like I said, a Category 1, the highest protected status of a civilian structure. Usually you're looking at mosques, water treatment facilities, hospitals, things like that. Power plants are not only on that list, but they're pretty much at the top of the list, especially if you're talking about nuclear power plants because of the potential for just environmental destruction if you were to target that. So if you are actually making an analysis that you're going to take out one of these so called Category 1 Protected Objects, you better have pretty ironclad intelligence that you can use to back up if you get questioned on the collateral damage for it later. But all of that assumes that you have some type of military goal right at the end of it. And so I think my main problem is my concern, I guess with that social media post is that it wasn't clear to me that there was a military advantage. It seemed like we're just worried about oil prices and surely there's a way that we can solve that without just blowing up power plants all over the country. And the real harm that you're doing there is on the civilian population. It's almost like a very creative way to hold civilians hostage for that.
- [08:14]
Ben Parker
The rule can't be we're going to immiserate an entire country said our gas prices get lower because we accidentally spiked them. Right. So General, I want to ask you the same question. When, as a former commander, what did you see when you, what did you think when you, when you saw this social media post for the first time?
- [08:29]
Mark Hertling
Well, the first thing I'm going to say, Ben, is what I just experienced was deja vu because Margaret's terrific explanation is the kinds of things I would get in multiple tours in combat from my staff, judge advocate, my Jaguar, you know, you want those kind of details, but I'm going to take it back a notch before that legal analysis is even presented to the commander. Because when I heard the president say this and, or put it on true social and say within 48 hours, my first reaction was that's impossible. You know, the Air Force or the Navy who are getting ready to fire the missiles. I mean, this isn't a video game where you have the targets immediately available. And you know what's going to happen. First of all, there's got to be an assessment of the target. That takes time. What are we trying to strike? You know, when the president gives a grand hand wave of we're going to take out all of the, the power generation facilities in, in Iran. First of all, that's a lot, a lot more capabilities than the Air Force and the Navy has. And I'll give you an example of that in just a second. But secondly, has there been an assessment what kind of collateral damage could take place around those facilities? What kind of civilian workers are in those facilities that have no connection to the IRGC or the Basij? What kinds of effects is this going to have other than blowing up the building and stopping the power generation or whatever the target happens to be? So it's, you know, when you say 48 hours before the strikes commence, which is what the President said in that true social post, I'm first thing I said is it's impossible. The second thing I thought even before having my JAG come in and brief me just like Margaret did so magnificently, is we get trained on this stuff too. We know what are in the various articles of the Geneva Convention. And just a quick review in my UCMJ and a couple of other legal documents I have here in my home, I could find at least seven articles of the Geneva Convention that that order violated or potentially violated, as Margaret just said. Now what the first thing I'll say is in terms of electronic places where electricity is generated. I was in the Pentagon on 9 11, and when we realized that there could be successive strikes after that 911 strikes, the Secretary of Defense asked me and three other people tell us what other high value targets they might be aiming to hit. What are the targets that we have to defend? And we went through a litany of categories of high value targets in the United States that we had to defend. And There were over 40,000 of them across the United States, anywhere from dams and power plants to tall buildings and religious facilities and universities and all those kind of things. So just the issuance of the order, which I think probably came off the top of the President's head, is dangerous in the first place because as Margaret said, it doesn't contribute to any kind of operational plan or strategic objective. The second thing I'd say, because Margaret brought it up, yes, I've been in this situation a couple of times. There was one example, I'll give you, where we had intelligence indicators that there was a mosque in northern Iraq in Mosul that had quite a significant amount of arms cached in the facility. And we could watch through UAVs and other intelligence assets the going ins and outs of various members of terrorist organization taking the ammunition out of that mosque and using it against local population. Does that become a valid target at that point? A religious facility? You really want to bomb a mosque? We made the decision of yes, it was because it was being used for military purposes. That's really difficult to do because the initial blowback from the citizens of Mosul was, hey, those damn Americans just blew up a mosque. Are you serious? Until we could get the film out that showed what was going in and out of that and how these terrorists were using a religious facility to kill other Muslims, did we not suffer the damage that's associated with striking a target that's allegedly a protected target under the Geneva Convention?
- [13:06]
Ben Parker
Yeah. One of the themes we come back to on the show all the time is tradeoffs. And you hit it a couple of different places there. One of them is, if we're all of a sudden going to devote huge resources to trying to bomb, legally or illegally, every power generation station in Iran, does that mean we're going to pause our attempt right now to open up the Strait of Hormuz? Does that mean we're going to stop hitting missile launcher facilities and we're going to stop hitting the drone stockpiles? Like, are we going to just all of a sudden switch? That doesn't make sense.
- [13:37]
Mark Hertling
Yeah. And if I can comment on that because you and I have talked about this offline. The reason why, one of the reasons, and I'm an army guy, let's not forget that I am not a Navy guy. But I would suspect one of the reasons why we're not escorting ships in and out of the Straits of Hormuz is because those cruisers and those destroyers that are part of the carrier strike groups are doing other missions like protecting the aircraft carrier, like launching Tomahawk missiles at pre designated targets, like patrolling around to see what's coming their way with their air defense weapon systems. So all of those things are part of what the military calls a troop to task relationship. When you assign any kind of the military force to a particular area, you say, here's what you're going to do when you go in there and suddenly if the mission changes and the task change, then you have task overload and you can't accomplish all the missions you want to accomplish. So again, that's another factor in this 48 hour warning of, hey, we're going to start striking new targets. It throws everybody, not only the launchers, but the intelligence specialists and the lawyers, puts them through cheater flips across the board.
- [14:50]
Ben Parker
I do want to get to the,
- [14:51]
Mark Hertling
that's a doctrinal term, that cheater flip, cheetah flip is. That's a doctrinal term, by the way, that commanders use often.
- [14:58]
Ben Parker
Okay, yeah, I do want to get to the, the follow up post where Trump, people say he chickened out. Well, I think it's a little more nuanced than that. But first, I wanted to ask you, Margaret, is there any legal implication to Trump even saying what he did? I mean, is it an order, Is it a quasi order? If I'm, if I'm an officer in the military, is it my job now to go, like, run that down and prepare for it, or is it just a thing he said? What is the legal implication of him even making that threat in the way he did?
- [15:29]
Margaret Donovan
My God. I mean, I think that's one of the most horrifying questions you could ask. I mean, we don't. Nobody knows. Nobody knows what, who is calling the shots, what he means, what he is not, is, or is not serious about. And we hear that all the time, that he's, you know, he's not serious about this thing, but he is serious about that thing. But as the commander in chief in that role, if that is the status from which you are making that statement, in any other world, that would be an order. And so it would be up to people below him. You know, we talked about this last time. Orders are actually, they are assumed to be lawful. And so that is up to people beneath him to determine whether or not the order is actually unlawful. And so that puts people in very difficult positions. But look, this is, you know, I'm not a strategist and I certainly don't have the experience of General Hartling, but this is not the way to run a war. By tweet. This is actually utter insanity. You're talking about a nuclear power plant and nuclear damage and fallout from this type of strike. And so you just hope that there's enough people around him and around the people in the strike cell that are not just automatic yes men that are thinking these things through. And maybe that's what generated the next tweet, maybe it didn't. But thank God. I think most of the time we find ourselves saying at least the incompetence kind of outweighs the corruption in many instances, or at least we've said that many times in the DOJ space here. But you just hope that, as the general just said, you don't have the capabilities to actually do that. And that gave people some time to think, okay, maybe we shouldn't be just wiping out the power grids or hitting a nuclear power plant based on a tweet. That should probably require a little bit more intelligence, assessment and thought and care to the fallout. And also, it's just kind of short sighted, right? In addition to you're taking assets away from active operations, from defending, you know, United States service members and their equipment and planes and ships, you're not really thinking about the next day. Right. So if we do eventually have to have a ground force there, either on the shore, across the state of Hormuz, or anywhere else on the ground, you have to be thinking about what type of conditions you're shaping in the populace and in the geography and in the infrastructure. Generally, when you're making these targeting decisions, that's not really up for a lawyer to decide, but that is something that I think most commanders want to think about before they make those types of commitments.
- [17:54]
Mark Hertling
Yeah. And, Ben, if I can add to that, you know, the mosque example I gave you a little earlier in that particular. On that particular occasion at the division level, I was a division commander at the time. At the division command level, I knew what was going on. I was getting intelligence briefings about that particular location from the targeteers, from the intelligence people, and from the operators so that we had the full picture. But when we actually gave the order to pull the trigger for the precision weapon to strike that target, I personally made a phone call to the commander of that unit and said, trust me on this one. Here's what's going on. Here's what we're going to do. And yes, we're going to hit a mosque. And it's because the intelligence shows what the role it's playing in the operation. But I gotta tell you what you just asked Margaret. I think from a commander's perspective, that conundrum that you face when you think something might be an illegal or an awful, awful order, it's the most difficult position any officer that's commanding a unit can be in. Because the stakes are immense, the pressure is real, and especially in this case, it's coming from the President. The consequences, personal and professional, are important for you as an individual, but also for the soldiers you protect. Because if someone fires that connector, that precision round, and it hits the building, if I'm wrong, they're also wrong and they suffer the consequences. Legally, there's no appeal. There's no just following orders. Yeah, there's no just. I was just following orders. No, you should have questioned it, too. That's the difficult part of that. But the expectation remains for professional militaries. You don't follow illegal orders or unlawful orders. And that's a pretty important distinction.
- [19:49]
Ben Parker
So I wonder. I wonder if we fixed our tech problem here. We can get up the Trump Taco post. There we go. So that was very early this morning. It was actually earlier than the timestamp says. He Originally posted it with some typos, and he took that one down and replaced it with this, which I think still has some typos, but basically said, we've had some very good negotiations, good conversations with Iran over the last few days regarding a pleat and total resolution of our hostilities, of course, of course, blah, blah, blah. And so he, he doesn't say he's taking away the threat. He says, I have instructed the Department of War, which is what he calls the Department of Defense, to postpone any and all military strikes against Iranian power plants and energy infrastructure only for five days. So people are talking about this as if, oh, well, he chickened out. That's it. It's over. The threat is still hanging out there. So I don't think this is really the classic taco where he completely reverses course. I should say this is a terrible transition. But speaking of tacos, this is about the time of year when my New Year's resolution to eat better usually falls apart. I don't know if that's true for any of you, which is why I'm delighted to give you a very short message from our friends at Tempo. Tempo is a meal delivery service. It takes all of the difficulty out of thinking of a recipe and making meals. And when you work with stamp sign, you never have a free moment. So you can imagine how much something like that is valuable to me. For a limited time, Tempo is offering our listeners 60% off their first box of food. Go to tempo meals.com bulwark takes the meals are fresh balance ready in two minutes so you can eat what you want without losing time. That's Tempo Meals.com bulwark takes for 60% off. Once again, Tempo Meals.com bulwark takes rules and restrictions may apply. And speaking of rules and restrictions.
- [21:42]
Mark Hertling
Wait, wait a minute.
- [21:43]
Ben Parker
Wait a minute, Ben.
- [21:43]
Mark Hertling
You're not going to transition again. Hold, hold on a minute. I got a comment on that because this is the first time we've had a commercial or an ad in the middle of a Bulwark Takes of command post. But I have to compliment you because I personally always thought you were a hero in the first place. But the fact that you could transition the way you did. Talk about this great organization, Tempo, that's going to provide meals and still get Sam Stein mentioned in the advertisement is it's actually podcast brilliance right there. It belongs in the hall of fame.
- [22:18]
Ben Parker
Well, thank you so much. I do feel like it's a little bit awkward to do an ad read for food when we're talking about, you know, what we're talking about here is war crimes, honestly. So speaking of.
- [22:29]
Mark Hertling
But you got to eat. You got to eat, right?
- [22:31]
Ben Parker
You got to eat, right. Speaking of rules and restrictions, I just want to ask the same question, Margaret. When you saw that he was. I'll just share off the bat that my sense. Well, sorry, I should share more background information. Since Trump made this post saying we've had great conversations with the Iranians, so I'm delaying my ultimatum five days, the Iranians have come out and said we're not talking at all. He's making that up. I think it's possible they're both lying. There could be some sort of, you know, there's some sort of go between. There's some sort of intermediary. So they're not talking directly, but they can say they're talking. Whatever. I don't know if this is the Iranians calling his bluff because maybe they figure, General, what you said, which is the capability to destroy Iranian energy infrastructure, isn't there. But same question. Margaret, when you saw this, this walk back post, what did you. What I mean, were you just a sigh of relief, thank God, or what?
- [23:30]
Margaret Donovan
Yeah, actually, you know, General Hertling and I were messaging earlier today and you know, on the updated news and I literally said thank God because I, I don't care if it was to move the markets and try to correct the dive, fine. At least we're just not 48 hours away from hitting a nuclear power plant. So if maybe there are non nuclear power plants in country still protected status, still would need requirements of all of the law of armed conflict to be targetable. So my thought is that this is just sort of prolonging a really unlawful conversation. When you look back to the principles that each commander, including the commander in chief would be thinking of before he or she engages a target. Military necessity, proportionality distinction, unnecessary suffering, it's very difficult to satisfy. Let's just take the first one. Military necessity. If you're saying that this can wait five days, that this can just be something that we can negotiate and there actually is an alternative besides use of force, I'm just not patient enough to go through with it. I mean, that is, you know, they say war is politics by other means, so to speak. And it's just sort of like maybe we should have tried politics for a little bit longer here or negotiation or diplomacy for a little bit longer. I think we're. Well, that's true of the whole past that. Right, exactly, exactly. So we, that, that, you know, maybe water under the bridge, so to speak. But you just. You don't pass any of those requirements in my mind, certainly not proportionality distinction or properly preventing unnecessary civilian suffering. So the idea that we've now just kind of kicked the can down the road by. I don't know that that solves the problem. I think we just should have never put it on the table. And by the way, I had read in reports that Iran had responded in kind and said something to the effect of. And it was on social media, so take it for a grain of salt. But, you know, responding that they had been targeted, their hospitals had been targeted, their aid centers, their schools had been targeted, and they did not respond in kind. But if the electrical grid is put as a target, they will respond in kind, and they will respond to U.S. regional energy sources. And so that is a really good example, in my opinion, of why it is important to follow the law of armed conflict and to not just erase the standards with just a single tweet and say, actually, we don't care about any of this anymore. Everything's targetable if you don't help us lower our gas prices. I just thought that that was, like, a really poignant example. And in fact, I don't want to get super deep in the weeds here, but one of the Additional Protocols to the Geneva Convention was signed by only three countries, and two of them were Iran and the United States. And that Additional Protocol is the one that addresses specifically civilian objects and certain considerations for targeting civilian objects during warfare. And so you just have this really strange juxtaposition of, you know, the United States threatening to do this really horrific thing if. And again, I'm going to asterisk this like, maybe there is some intelligence out there. Maybe they know that these power grids are only serving the irgc. And if so, good. Sounds like that intelligence could support a strike on them. But if it really is just to hurt the civilian population, to try to inflict pain, to force the regime to negotiate, I just don't think that that is a proper use of military force.
- [26:41]
Ben Parker
Yeah, General, I want to ask you, too.
- [26:43]
Mark Hertling
Yeah, let me just. Because Margaret is, as always, spot on. But that distinction is so incredibly important for two reasons. For the last 47 years, we've been calling Iran a terrorist nation. They support global terrorism. They supported terrorism against our troops in Iraq and Afghanistan. And we have known our nation has come to know them as a, quote, terrorist state. When we talk about conducting what I would consider, if it doesn't meet the standard of the four standards that Margaret Just mentioned of any attack on those facilities. We are using weapons to try and persuade governments to change their direction. It's the same thing Russia has been doing for the last four years in Ukraine. So targeting civilian facilities makes us. I'm going to say this openly, kind of puts us in the same category of being a terrorist, because we're trying to persuade a nation to do something by striking their citizens. And that's just horrific in my view.
- [27:50]
Margaret Donovan
But that is the line, right? That is the difference. That is why the law of armed conflict matters, because that distinguishes us from them. And that's why we've tried to uphold that even against the most horrific of adversaries. Right. The Islamic State. Obviously, they're not even a state, so they're not signatory to any of these treaties or these conventions. They did not recognize any rule of law. But what made us able to hold our heads high in that fight and ultimately succeed in rooting out the Islamic State in Iraq and Syria was our ability to be doing the right thing for the right reasons. And so even though both the general and I many strikes, we had civilian facilities that were being used in firefights. The enemy was taking defensive positions in them. We had to strike them. But the difference is that we actually have a set of principles that underpin when we make those decisions. And we are doing an analysis of what the greater good is between the choice of two evils there is.
- [28:45]
Ben Parker
So I do want to ask you one more question, General. And then as we. As we get a little deeper into this, I really want to nerd out on the law stuff. But before we get there, General, you have a forthcoming article in the Bulwark we did. We. It's not published yet, but it'll be online soon. People can go to the bulwark.com to read all the excellent things you write, to get a ton of the best news coverage around. I really mean that. And to support what we're doing here, we which we're able to bring people for free because of people who join Bulwark plus and support us. So if you want to support our work, go to thebulwork.com, become a Bulwark+member. You got all sorts of Members Only freebies, too, or members only goodies, I should say. But your forthcoming article is all about not only the repercussions that we could have expected, or maybe still could expect from this kind of campaign against Iranian power generation for the region, but the repercussions for the American military and what it would Be do what it would mean for people who would be on the execution end of those orders. You talked about this a little before. But I mean, what. What does it do to morale? What would it do to cohesion in the force? What kind of military would we be looking at?
- [29:51]
Mark Hertling
Well, there's certainly going to be people inside the military who are saying, yeah, let's strike that target. Let's get it right now. Let's put as much wampa ass on it as we possibly can. And then there are others who are going to be considering all the things we've been talking about tonight. The moral injuries for soldiers, the fact that you're killing citizens, that may not come up when you're doing it, but five years later, when you're sitting at home with your family, suddenly you start thinking about the people you killed in combat. That's moral injury. So there's a combination of that psychological distress, but also the dynamic inside of organizations between different approaches that people will take. How much firepower, how much deliberate kinetic strikes should we give to destroy these individuals who have been hurting us for decades in combat and in proxy militaries? So there's that whole dynamic. Truthfully, Ben, it is a tough issue to talk about. Margaret said she breathed a sigh of relief this morning when. When the order was taken off. I did, too. But in addition to my sigh of relief, I thought to myself, God, please have it be the Chairman of the Joint Chiefs that persuaded him not to do this because of legal activity and holding the military together, because this is not what we do. We do not strike civilian targets purposely. So that's the approach I take from a morale and a discipline issue. You know, I go back to the main point I've made many times with you, Ben, that the whole role of a commander in combat is to control chaos. It is to control chaos and instill discipline so soldiers don't turn into, you know, Attila the Hun and go after bad guys just for the want of killing. That's not what we do.
- [31:51]
Ben Parker
Yeah, I think that's right. Okay, let's get really nerdy here. Margaret, you have named a whole casebook full of legal sources that I can barely name. So we have the General named, the Uniform Code of Military justice, the ucmj. We've also name dropped the Geneva Conventions and the Additional Protocols of the Geneva Conventions. And you mentioned the Chairman's directive, Right? So, yes. Where. How do all these stack up in terms of their legal power? And. And what. How much of this is domestic law? How much is International law. How much is Norman custom and how much is just basic morality?
- [32:31]
Mark Hertling
Well, can I add one more, Ben?
- [32:33]
Ben Parker
Oh, please do.
- [32:34]
Mark Hertling
About rules of engagement.
- [32:36]
Ben Parker
Oh, yeah.
- [32:37]
Mark Hertling
Which the current Secretary of Defense is kind of poo pooed, but there's certainly legal requirements from a commander to his or her troops.
- [32:45]
Margaret Donovan
Yeah, I mean, can I. I just want to like zoom out a little bit, big picture here. Because this is something that really like eats at me every time that I see leaders and people in this administration. And Sarah, I'm sure it drives me nuts too, having done so much work in Europe, just sort of discard these international treaties. And they think it's. Oh, it's just this breezy concept of international law that doesn't. Isn't actually binding. But NATO, the Geneva Conventions, the UN Charter, all of those agreements have been signed and ratified by Congress. And so that means that they actually are domestic law. They're not just floating in the. And if you look at the supremacy clause of the U.S. constitution, it actually lists treaties on the same footing in the terms of supremacy of the supreme law of the land as the Constitution itself and as statutes passed by Congress. And so treaties were actually very important to the framers when they first wrote the Constitution. And think about it, how did we get through the revolution? Right. Through an international alliance with France. And so that was one of the first treaties that we entered into. And so international law has always been important to this country and our allies have always been important. And so. So I just want to, you know, to your question about is it international law, is it domestic? There are many instances where so called international law actually has been codified. Codified as maybe the wrong word. But it has been ratified domestically such that it is binding on people who should be executing it. So then you have the Uniform Code of Military justice, of course, that is the penal code for all soldiers and service members in the armed services. And you have the rules of engagement. And that would be binding on people who are actually in theater. And so, so not following or disobeying one of the rules of engagement would trigger an offense under the Uniform Code of Military Justice. So it could subject you to possible criminal liability there. And so you have a pretty robust framework. But when you're talking about the context of following an unlawful order, it gets a little bit difficult when you have these really big picture conflicts of law. For example, the invasion of Greenland. Right. We all forgot about that. That was actually a topic that we were talking about less than two months ago that we were going to blow up NATO by the way, the same group of countries that were now asking for help, I wonder why they don't trust us. So there was this idea that we were going to take Greenland somehow by force. And I think that there is a very good argument that at the top, in those sort of decision making capacities, people who are deciding whether or not to go to war, though they may be bound by not following an unlawful order, but once that decision is made, I think that there's an argument that people lower on the chain, the private right, the lowest rank in the military, in the army, is assuming that the orders and the people who have debated these things above him or her have already come to some legal justification. And it's not as if everybody has some advanced law degree and you can't expect every soldier to know whether or not something is illegal or in violation of an international law or something like that. And so it really does fall to the leaders in the military to be making those decisions so that the people who are trusting them to make the right decisions and to follow the law are not being led astray and being part of this, you know, something that could be a really, really unfortunate chapter in America's history, which I hope we don't finally go down any of these roads that we've come really dangerously close to. But to me it belongs. Those decisions need to be made at the top and it needs to be made for the benefit of the people at the end of that chain.
- [36:16]
Ben Parker
And General, I wanted to ask you a question about how command climate affects all of this. We've gotten a lot of questions about this terrible strike on the girls elementary school in Iran that killed estimates are 165, 175 people, mostly children. And Margaret, as you said, seems to be based on intelligence that was really old and just never got updated. So the I'm sort of interested to know like, you know, from a legal perspective, like, oh, is that a crime if you're negligent or do you have to do it on purpose? And I'd be interested to hear that from you, Margaret. But General, I really want to know, like, does the fact that the Secretary of Defense talks the way he does make a difference in a case like that? I mean, obviously it's a one off. But the fact that he says, oh, rules are engagement, that's for sissies, we're going to be lethal over legal or whatever he said. What kind of effect does that have?
- [37:08]
Mark Hertling
Well, you know, there's an old saying in the military that says the command climate emanates from the top, you know, the unit, the organization takes on the personality of the commander. I'm not sure that's true from the overarching standpoint of the military, but certainly there are people who are emboldened when they hear the secretary of defense say things like this. There are those who are going to say, oh, yeah, we don't care about the rules. And, but most of the individuals who are saying that, and I'm spitballing here, but they don't have the responsibility of protecting their soldiers from both the moral injury we talked about a little bit earlier, but also legal action. And when you're not in the chain of command and you're saying, yeah, let's just blow off the rules of engagement, things happen when you do that. Secretary Hegseth was involved in an incident in Iraq where he saw that up close and personal, where his brigade did not obey the rules of engagement and went into an operation where they were told that there were only going to be terrorists on an island in the middle of, I think it was the Euphrates River. So everybody should be fair game. And because of that, a couple of individuals shot old men, old farmers, turned out to be civilians, and those individuals were court martialed and they're still serving a sentence at Leavenworth. So. And the brigade commander was relieved. And it was a brigade commander that Secretary Hegseth had a great deal of respect for. Well, he gave some orders that people could interpret at lower levels, and it got all of them in trouble and it resulted in death. That's the thing that isn't controlling the chaos that I talked about a little bit earlier.
- [38:58]
Ben Parker
Yeah. So I think we have time for just one more question. So, Margaret, I wanted to ask you a difficult question, but probably one that some of your old colleagues are facing, which is if you are the staff judge advocate and your boss comes to you and says, I just got this order to attack this power plant. Is it legal? And you do your analysis and you come back and you say, I think it's not.
- [39:23]
Margaret Donovan
Not.
- [39:24]
Ben Parker
And then they say, I think I'm going to do it anyway. What do you do as the staff judge advocate, as a military lawyer, what's your recourse?
- [39:34]
Margaret Donovan
Yeah. Yeah. So I can say that I have not had that experience because in a properly functioning strike cell, the judge advocate is integrated. And so at the time where a strike is going to go off course and veer into something that violates the law of armed conflict, the JAG should be integrated into that planning process to put it back on the right track or just to say, let's hold off, this target isn't ready, we'll come back in a day or two and see if we have imminence or whatever it was we were waiting for. I have had and I can count on one hand the number of instances where I was advising a commander on can you, should you, must you? And that's sort of a phrase that we use, I don't know, in the JAG Corps, maybe in the military, generally advising commanders, can you? Yes, I'm thinking of, if you want some color to this example I'm thinking of it was a strike in Fallujah in 2016 and we were reclearing the city of Fallujah from south to north. And at the time there was one remaining hospital in Fallujah. And so it had been taken up by the enemy to use as defensive fire. We had friendly forces getting casualties in a self defense posture. You can target that all day, but it is one of the last remaining aid centers. And so are there other ways to sort of take that objective that is not going to ultimately destroy it? And I remember having this conversation and having a very frank exchange of can you do it? Yes, you can. You have self defense. You have a justification. You legally can do this. Should you or must you? That is a decision that the commander makes. But to more to your point, to answer your question more directly, if you think that something is illegal and you are a judge advocate officer and you have given an opinion saying, I do not think that this comports with the law of armed conflict, I think that this is illegal, I think this could be a war crime. Not only do you have an obligation to tell your commander, whoever it is in your chain of command, that people also have an obligation to report war crimes and it is actually a war crime itself, a violation of Geneva itself to not report war crimes. And so that's what I would advise people who are in these positions is it's not just making that report to the chain of command. You need to be able to blow the whistle on things when you see it. And if your advice is not being followed, you need to make that report to Congress who is responsible for oversight. And then you probably need to resign if you don't think that you can do your job effectively. And I hate to say it, but that's usually the end of the road for people if their advice just isn't going to be heed.
- [41:52]
Ben Parker
Well, I think that is a suitably dark and scary note on which to end a conversation. About war crimes if people enjoyed this live stream. We do these all the time. The next Bulwark Livestream is tomorrow morning. My colleagues Bill Kristol, Andrew Egger are going to be getting together to discuss all of the news of the day, as crazy as it is. So make sure you tune in for that tomorrow morning. Someone will remind me what time it is. It's at 10am it's at 10am tomorrow morning. Join us for the Morning Chaser after the Morning Shots newsletter goes out in the morning. Margaret, thank you so much for joining us. And remember we we tried to answer a bunch of questions people sent us today with this episode. That's why we invited Margaret back. You can send us more questions at Command post@the bulwark.com and if you want to leave us a comment and chat with us, you can become a Bullwork plus member at thebullwork.com and thanks so much for watching Command Post.
- [42:46]
Mark Hertling
Thank you all. Thanks Margaret.
- [42:48]
Margaret Donovan
Thanks for having me. Talk to you soon.
- [42:50]
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