“Dishonorable and Inhumane”

Summary

Main Justice – "Dishonorable and Inhumane"

Date: December 3, 2025
Hosts: Andrew Weissmann, Mary McCord
Guest: Todd Huntley (Director, National Security Law Program, Georgetown Law; Former Navy Judge Advocate)

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Episode Overview

This episode of Main Justice addresses the bombshell revelations about a U.S. military operation in the Caribbean, specifically a "second strike" that killed survivors of a previous attack on a drug-running boat. The discussion—anchored by the show's legal experts and guest Todd Huntley—dives into the legality and potential criminality of the strike under domestic and international law. The hosts also contextualize the event within the broader pattern of disregard for the rule of law in Trump’s new administration and discuss other pressing justice issues, including the shooting of National Guard members in D.C., a contentious pardon for a former Honduran president involved in drug trafficking, and a critical Third Circuit ruling on improper U.S. Attorney appointments.

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Key Discussion Points & Insights

1. Introduction and Episode Scope

[01:03–04:49]

• Mary McCord introduces Todd Huntley, emphasizing his operational and legal background and relevance to discussing recent U.S. military actions.
• Provides context: post-Thanksgiving reports confirmed not only extraterritorial strikes on drug cartels but specifically, a devastating "second strike" that targeted and killed wounded survivors from the initial attack—raising immediate questions of compliance with law of war.
• Plans to also discuss: the D.C. National Guard shooting and its policy fallout, and the Third Circuit ruling disqualifying Alina Haba as acting U.S. Attorney in New Jersey.

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2. Legal Analysis of the Caribbean Strikes

[04:49–21:16]

a) Understanding the Judge Advocate Role

(Todd Huntley, [05:27])

“A judge advocate is a military lawyer, not necessarily a judge… oftentimes when you're advising commanders and operational units, they will refer to you as judge, as a shorthand. But you're not a judge most of the time.”

b) The Lawfulness of the “Second Strike”

• Operational facts: After the initial strike, two survivors clung to the wreckage; a second strike was then ordered targeting them.
• Key insight: Even assuming the U.S. administration's claim of an ongoing armed conflict with drug cartels, it's universally illegal—under the Geneva Conventions and longstanding customary international law—to kill shipwreck survivors.

(Mary McCord, [10:48])

“That notion that you don’t kill shipwrecked personnel—even the enemy—goes back historically more than a hundred years.”

(Todd Huntley, [10:57])

“It’s one of the longest-standing traditions in international law… there were war crimes trials after both the first and second world wars, trying German personnel for machine-gunning shipwreck survivors… and several of them were executed.”

c) Citing the U.S. Law of War Manual

(Andrew Weissmann, [12:24])

“Orders to fire upon the shipwrecked would be clearly illegal… because the people who are shipwrecked are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack.”

(Todd Huntley, [13:36])

“It’s ironic that that is the example in the Law of War manual, and here we are debating whether that was lawful or not. Unbelievable.”

d) Who is Obliged to Disobey Unlawful Orders?

• All ranks have a legal duty to refuse “patently unlawful orders.”
  (Todd Huntley, [16:16])

“What makes this difficult is that orders are presumed to be lawful. And so especially at the lower enlisted or lower officer ranks, an order that is passed down, they're going to presume it's a lawful order… But as a commander, you have additional responsibilities… to ensure violations do not occur.”

(Mary McCord, [15:12])

“It’s just plain old murder under U.S. criminal law. So either way… accepting the administration’s argument for the legality of the first strike or rejecting it, this killing of survivors is a violation of law.”

e) The “Collapsing” Defense of Targeting Drugs, Not People

• Administration suggests second strike was to destroy drugs, not kill survivors.
• Huntley debunks this: If not in an actual armed conflict, the drugs are not lawful military targets. Even if they were, proportionality and alternatives must be weighed, especially with survivors present.

(Todd Huntley, [18:48])

“To get to that defense, you really have to make a lot of assumptions… If the drugs have been labeled as a military objective... But again… are we actually in a war with these cartels? Since the facts don't support that, I don't think the facts would support striking the drugs would be lawful…”

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3. Chain-of-Command Controversy: Who Gave the Illegal Order?

[22:28–30:45]

• Initial reporting blamed Sec. Hegseth for the order; he now blames Admiral Bradley but claims to “have his back.”

  • Memorable Moment:

    (Andrew Weissmann, [23:40]) “That was the most hysterical laugh about this... It was basically saying, I don't have your back because you made the order — under the bus. Yes, exactly. Because you made the decision, not me, but I'm right behind you.”

• “No Quarter” Orders:

  • Huntley explains: Orders to take no prisoners, kill all, or “leave no survivors” have been recognized as illegal for over a century.
    • (Todd Huntley, [24:55])

      “...one of the oldest prohibitions in the law of armed conflict… you may not give an order to show no quarter or accept no quarter.”

• Importance of Documentation & Oversight:

  • There are likely chat logs and operational records that can resolve who ordered what.
    • (Todd Huntley, [26:23])

      “There are probably records of that. There are logs that are kept in those chats. So are those going to be made available to Congress…?”

Congressional Oversight

[27:05–29:49]

• Strong obligations exist to report such possible war crimes up the military chain and to Congress.
  • (Todd Huntley, [28:22])

    “Every military member has a duty to report violations of the law of armed conflict. That is supposed to go up the chain… and then… reported to Congress."

Mary McCord, [29:19]: “We do know now, in a rare display of bipartisanship, the chair and ranking members of the Armed Services Committees… have opened up inquiries.”

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4. Broader Impacts: Morale, Legality, and Policy

[29:49–31:24]

• Huntley: Morale and faith in leadership have been damaged by the administration’s blame-shifting and lack of backing for subordinate commanders.
• Notably, a similar case in the eastern Pacific did not result in killing survivors—suggests possible shift or clarification in rules after the Caribbean incident.

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5. The Administration’s Drug War Pretext vs. the Hernandez Pardon

[32:40–38:52]

• Irony/hypocrisy: While justifying extrajudicial killings as part of an anti-drug campaign, President Trump pardoned former Honduran President Juan Orlando Hernandez, convicted for trafficking 400 tons of cocaine into the U.S.

  • (Mary McCord, [33:19])

    “He was alleged to and… convicted of using his position… to facilitate the importation of over 400 tons of cocaine into the United States.”

• The pardon undermines the rhetorical justification for military operations against alleged narco-traffickers.

• The case was initiated by Trump’s first term DOJ, refuting claims of a "Biden prosecution."

• The number of lives affected by the trafficked cocaine (estimated at 4.5 billion doses) underscores the magnitude and incongruity of the presidential pardon.

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6. The D.C. National Guard Shooting and the Draconian Migrant Response

[42:38–49:40]

• After two National Guard members were shot (one fatally), politicians responded by vilifying migrants and imposing sweeping new restrictions:
  • Suspension of all asylum decisions (affecting 1.5 million cases);
  • Review of green cards for people from 19 countries;
  • Halt of Afghan immigration;
  • Indefinite pause on approvals granted under Biden.

(Mary McCord, [45:48])

“All the vetting in the world doesn’t necessarily lead to the discovery that somebody at some future point might have a grievance and decide to act on it… It’s not unique to one subset of people…”

• Hosts stress the dangers of politicizing tragedy and collective punishment, contrasting this with the DOJ’s methodical post-event reviews for accountability.

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7. Third Circuit Ruling on Improper U.S. Attorney Appointments

[49:40–53:28]

• The court found Alina Haba could not serve as acting U.S. Attorney for New Jersey, citing clear violation of the Federal Vacancies Reform Act—the first appellate court to so rule.
• Ramifications extend to other improperly appointed U.S. Attorneys and could invalidate a raft of prosecutions.
• The administration’s options: comply and nominate qualified candidates, seek rehearing, or risk Supreme Court review—potentially imperiling all contested appointments nationwide.

(Mary McCord, [51:08])

“This is significant for other situations around the country because this is the first circuit court case we have.”

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Notable Quotes & Moments

• “Orders to fire upon the shipwrecked would be clearly illegal… the reason that it would be illegal is the people who are shipwrecked are in a helpless state and it would be dishonorable and inhumane to make them the object of attack.”
  — Andrew Weissmann [12:24]
• “It’s ironic that that is the example in the Law of War manual… here we are debating whether that was lawful or not. Unbelievable.”
  — Todd Huntley [13:36]
• “It’s just plain old murder under U.S. criminal law. So either way… accepting the administration’s argument for the legality of the first strike or rejecting it, this killing of survivors is a violation of law.”
  — Mary McCord [15:12]
• “Morale and trust in the administration… really undercuts that.”
  — Todd Huntley on leadership fallout [29:49]

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Timestamps for Major Segments

• 01:03 – Episode and guest introduction
• 04:49 – Beginning of in-depth legality discussion with Todd Huntley
• 10:33–13:36 – International law and law of war detailed explanation
• 15:12 – “Just plain old murder” if no armed conflict exists
• 22:28 – Who gave the unlawful order & chain of command fallout
• 27:05 – Reporting obligations to Congress
• 30:45 – Impact on military morale and inconsistencies in operational conduct
• 32:40 – Analysis of the Hernandez pardon and its hypocrisy
• 42:38 – National Guard shooting and anti-migrant policy wave
• 49:40 – Third Circuit ruling on U.S. Attorney appointments (Alina Haba case)

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Tone & Style

• The discussion is sober, urgent, and often incredulous about the blatant disregard for law and precedent.
• The hosts maintain a rigorous, detail-oriented legal analysis grounded in experience and real-world examples.
• Occasional dry humor (such as the "I'll have your back—under the bus" moment) and passionate language (“dishonorable and inhumane”) keep the conversation human and relatable, even when discussing grave topics.

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Takeaways

• The U.S. military’s targeting of shipwrecked survivors is a clear-cut war crime or, in the absence of an armed conflict, murder under domestic law—by both international norms and U.S. doctrine.
• Systemic failures of accountability and transparency have escalated under the new administration, damaging military morale and trust.
• The legal system is starting to respond with critical rulings (Third Circuit) but faces an uphill battle to rein in executive overreach.
• Policy and rhetoric around drug trafficking and immigration bear little relation to consistent rule-of-law principles and are often wielded as political pretexts.
• Congressional oversight and public access to operational records will be critical for accountability.

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For Further Discussion

• Will Congress get access to the communications and logs surrounding the Caribbean strike?
• What other appointments and cases might be jeopardized by the Third Circuit’s U.S. Attorney ruling?
• Will any prosecution or accountability follow for the clearly illegal order—will the Nuremberg precedent stand?

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Main Justice continues to use deep legal expertise and operational savvy to scrutinize attacks on U.S. legal and constitutional norms, providing listeners with both a moral and practical guide to the debates rocking the DOJ and the military today.

Transcript

[Todd Huntley]

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[Andrew Weissmann]

Hello and welcome to Main Justice. It is Tuesday morning, December 2nd. I'm Andrew Weissman and I'm here with my co host Mary McCord. And I'm going to say hello, Mary, and then I'm going to skip all the chitchat because we have a really special guest. So in a rare display of self control, I'm turning it over to you so that we can get to him.

[Mary McCord]

And I will try to exhibit the same self control. I hope everyone had a lovely Thanksgiving and at least a slight break from the news. We will, as Andrew just forecasted, we will be joined this morning and spend the better part of the episode with my colleague at Georgetown Law, Todd Huntley, a former Judge Advocate General. And I'll give a full introduction and we will walk through the legality or more significantly, the illegality of what we learned about the day after Thanksgiving, which is that not only have there been the strikes in the Caribbean that we've been talking about multiple times, but that on that first strike that killed 11 people, not everyone was killed on the first strike. There were two survivors clinging to the wreckage of the boat and an order was given for a second strike to kill those survivors. And we will talk about that situation, which is very significant in terms of its failure to comply with the law of war, domestic law, et cetera. And it is actually finally getting a real response, a bipartisan response from members of Congress, which I think is important and it's about time. We will also, of course, talk briefly about the tragic shooting the day before Thanksgiving right here in Washington, D.C. of two National Guard members and what that has now precipitated in terms of actions by the administration to really, really limit and paus all kinds of policies related to asylum seekers and those here on green cards from certain countries, et cetera. And we will end our episode by talking briefly about the very significant Third Circuit appellate court ruling. I guess this was just yesterday on Monday, that affirmed lower court finding that Alina Haba, who was serving supposedly as the acting U.S. attorney in New Jersey, is not validly an acting U.S. attorney. So that has ramifications well beyond New Jersey and is, of course, an issue we've been tracking in New Jersey and other places such as the Eastern District of Virginia. So with that, let's jump in. I could not be more pleased to welcome Todd Huntley today to the podcast. Todd is my colleague at Georgetown Law. He's the director of the National Security Law Program there, also teaches there. But really importantly for purpose of today's discussion, I honestly cannot think of anybody better suited to talk about the new revelations about the second strike on September 2 that killed survivors of the first strike on a boat in the Caribbean, because Todd retired from the US Navy in 2020 after serving more than 23 years active duty as a Judge Advocate General, where he advised senior military and civilian leaders on national security and international law matters. And let me just be very specific. He was the senior Navy attorney for all national security law issues. He was a legal advisor to special operations units, including two deployments in Afghanistan. He was the country program manager for the Defense Institute of International Legal Studies. So he knows the operational aspects and the legality, or should I say illegality, of the events that we have recently learned about that took place in the Caribbean. So, Todd, thank you so much for joining us today.

[Andrew Weissmann]

Thank you. You know, it's so interesting because we had Tess Bridgman come, and in many ways, you know, we have all these people who have lots and lots of intellectual background, but Tess had operational work that she could bring to bear in terms of how the National Security Council, how things actually operate. And that is you have combined that intellectual expertise with operational expertise. So couldn't thank you enough. Maybe just quickly start with what is the term Mary said, which was judge advocate. What does that mean? Were you a judge? Were you a lawyer? Just so people understand and we can level set what that means.

[Todd Huntley]

Sure. So. Well, first, thank you so much for having me on today. So a judge advocate is a military lawyer, not necessarily a judge. We have military judges who are judge advocates, but kind of the common judge advocate is an attorney in the military, can be providing defense counsel advice and serving as a prosecutor, or like what I did for the last half of my career serving as a legal advisor Oftentimes, when you're advising commanders and operational units, they will refer to you as judge, as a shorthand. But there's. You're not a judge most of the time.

[Mary McCord]

So to be clear, you would have been in positions, if I understand correctly, where strikes, for example, drone strikes in Afghanistan targeted at foreign terrorist groups, Al Qaeda, later on isis. These are things that you would have had an opportunity to weigh in on in terms of the legality both under domestic law and international law and military law, is that right?

[Todd Huntley]

That's correct. So for both my deployments to Afghanistan and then some of my other assignments, I would basically set in the Joint Operations center along with the commander, intelligence specialists, operations specialists, targeteers, and we would monitor ongoing operations and plan strikes.

[Andrew Weissmann]

So, Todd, one of the things that we have done and our listeners understand from our prior conversations, is we've addressed the issues, particularly with Tess Bridgman, about what I'll call the first strike and the legality of that, the various issues that come up under domestic and international, whether it is an armed conflict or not, all of those sort of issues. But I think the focus today is going to be assuming the government's position is correct that we're in some sort of armed conflict between a nation state, the United States, and a non nation state. I assume that's correct. There's reporting now from the Washington Post that's since been disseminated widely and other media which has Pete Hegseth essentially saying kill them all. And what results from that, apparently is that two people who were survivors of the first attack are hanging onto this boat and they are blown to bits. Now, Pete Hegseth is denying, I think that he said kill them all. So ordering the first strike. And at a cabinet meeting he is saying he wasn't even there for the so called second tap, the second strike. And that that must have been orders from somebody else, but not his orders. We'll see how that shakes out. We want to sort of focus on the legal issues. I mean, it's almost sounds crazy to say that we want to focus on the legality of what I'll call what people are saying is like the second strike or the second tap. And it may be one way to get into this. Let's assume that you were still in the government and someone came to you and said, we are where we are. We've done the first strike. We now see two people in the water hanging on to the shards of the boat. Can we go ahead and kill them? What is our obligation at this point? What are our legal obligations under domestic or international law. And then just to be clear, they say to you, Todd, you're a lawyer. We do not want your policy views. We want to know what the law is. Maybe you could start by telling us, like, how would you go about thinking about that issue?

[Todd Huntley]

Well, that's. It's a difficult question because as you well know, your legal analysis is fact dependent and we have very limited facts right now. So I would at first start off by asking for more facts. And we would have to understand what exactly the rules of engagement were. Who had the authority to approve the strikes, any types of restrictions that had been put on that authority, whether that authority could be delegated. So oftentimes, you know, the advice that a judge might give would be who has the approval or who has the authority to approve this certain type of strike. So you would need all of that background information and then you would, would apply the law to those facts. And in this case, you know, my advice would be based on what we know, that those two individuals are out of the fight, you know, horde to combat is the term, pardon my awful Latin, and that we had a duty to not target them. So that would be the starting point. I think what's causing some of the confusion is that there is a difference in the law of land warfare and the law of naval warfare in that shipwreck personnel under both the second Geneva Convention doesn't apply here because it's a non international armed conflict. But also common.

[Mary McCord]

Alleged.

[Todd Huntley]

Alleged.

[Andrew Weissmann]

Right.

[Todd Huntley]

Common Article 3 of the Geneva conventions and customary international law give a protected status to shipwreck personnel. And that includes enemy personnel who are in the water after an attack.

[Mary McCord]

And that actually goes back historically more than a hundred years, doesn't it? That notion that you can't, you don't kill shipwrecked personnel, even the enemy.

[Todd Huntley]

Yes, it's one of the longest standing traditions in international law. And you know, there were war crimes trials after both the first and second world wars, trying German personnel for machine gunning shipwreck survivors who are in the water, in some cases in life rafts. And they were found guilty at the civil war crimes tribunals and several of them were executed.

[Andrew Weissmann]

Mary, this is something that I don't know that you know this about me. And when I was in law school, I developed this really strong interest in the Nuremberg trials. It may be because Telford Taylor, who was one of the principal prosecutors for the United States in the Nuremberg trials, taught at Columbia Law School, where I went. And so I sort of read every single thing I could. And as soon as this happened, this second strike, I thought of first the charges that were brought against Admiral Donitz and then the sort of follow on, which is exactly what Todd has been talking about. And that case, I just want to make sure people understand the United States was advocating that. In other words, this is the people on the other side were Germans. And the second in the World War II case, they were Nazis who, when there were survivors of boat attacks, went ahead and killed people. And the comparison is just so stark to what is happening here. But we are now on the other side of that. I mean, in the World War I and 2 context, we were the ones saying that this is a war crime. And I just want to read something that's. To Todd's point. That is the Department of Defense Law of War manual, that's the Department of Defense's current law of war manual, says that it would clearly be illegal to carry out an order that had no basis in law. In other words, you cannot do it. That is something that is very much in the news because of the video that we talked about last week. But the example that the Department of Defense gives for a clearly illegal order is this, and I'm going to read it verbatim. For example, orders to fire upon the shipwrecked would be clearly illegal. And it goes on to explain why. And it describes it in two adjectives that I thought were amazing because it so encapsulates where I think we are that the reason that it would be illegal is the people who are shipwrecked are in a helpless state and it would be dishonorable and inhumane to make them the object of attack.

[Todd Huntley]

Andrew, I was going to bring that up. I mean, it is ironic that that is the example in the Law of War manual. And here we are debating whether that was lawful or not. Unbelievable.

[Mary McCord]

That brings us to the second point. You know, first is sort of legality or illegality. And second is what's the obligation of high level military officials all the way down to the actual drone, you know, operational strike operators to, you know, not follow that order. But before we get there, Andrew started us off on assuming that the administration's rationale for the first strike as us being the United States being in a non international armed conflict with name your drug cartel. Because there are various drug cartels allegedly that have been struck so far. We've talked on other episodes about how we don't actually think the facts meet a non international armed conflict. But even assuming that you just described for us what would be a war crime under international law to kill these survivors who are shipwrecked at that point. But let's assume for a minute that we're right and there is no non international armed conflict. This would still be clearly illegal. Right. What would the name would you put on it in that case? Todd?

[Todd Huntley]

Yes, I think it's important not to just breeze by that claim by the administration that, you know, even the first strike, I think is unlawful, at least under, you know, given the facts that we know now and, you know, the supposed legal opinion or legal analysis that's being applied to that. So in that case, it would be murder.

[Mary McCord]

It's just plain old murder under U.S. criminal law. So either way, and I think this is so important for listeners, either way, accepting the administration's argument for the legality of the first strike or rejecting it, this killing of survivors is a violation of law. Domestic, international, no justification. Can you talk to us? Because I will confess even I have some confusion about when there is a duty not to follow any legal order. And the confusion that I have relates to sort of what your rank is. I've always understood that officers have that duty, but lower level service members might not have the same duty. But is that different when you're talking about something as patently illegal as this? And I say patently illegal and clearly illegal. Those are the terms that seem to be used in the Department of Defense's own guidelines.

[Todd Huntley]

Yes. One more word about the assumption of whether we're actually in a non international armed conflict. You know, is it possible? Yeah, it's possible. We just don't have the facts.

[Andrew Weissmann]

Right.

[Todd Huntley]

It would be pretty easy, I think, for the administration to share the facts, at least with Congress. So you're right. So the terms that are used are, you know, you have a duty to not follow a patently unlawful or a clearly unlawful order. And that applies to all ranks of the military. What makes this difficult is that orders are presumed to be lawful. And so especially at the lower enlisted or lower officer ranks, an order that is passed down, they're going to presume that it's a lawful order. And it's not that the duty is different the higher rank you are. But as a commander, you would have additional responsibilities to ensure that violations of the law of armed conflict, you know, not only that your orders are lawful, but that those underneath you are following only lawful orders. And so in this case, the commander has been named as I think Admiral Bradley would have a duty to not pass on a unlawful order that is clearly unlawful.

[Andrew Weissmann]

Todd, the defense If I was just following orders, was something, of course, that listeners will know was raised during the Nuremberg trials in a whole wide range of contexts, but including in this specific context when the issue was the killing of people who were stranded at sea. And the court rejected it because of the issue that you and Mary are talking about because it was so clear. We're not dealing with a gray area where you are thinking, well, there's a presumption here. You can just look at the manual itself and you can look at over a hundred years of precedent that you don't kill people who are shipwrecked. And the question I have for you is one of the defenses that seems to be floating, and who knows if this is the defense du jour, is, oh, we weren't trying to kill the people who were shipwrecked. We were trying to get rid of the drugs and paraphernalia that might have been on the boat and that other drug dealers could come to and find and then bring to the United States. And it would result in the death of people using those drugs. Putting yourself back into the position of the government, how would you treat that? Well, wait a second. We're not going after the people. They're just sort of collateral damage to trying to destroy whatever drugs might be on the boat. How would you go about thinking about that as a judge advocate for the Navy?

[Todd Huntley]

Well, to get to that defense, you really have to make a lot of assumptions or link together a lot of these assertive facts that we really haven't seen.

[Andrew Weissmann]

Right.

[Todd Huntley]

So, yes, if the drugs have been labeled as a military objective and that they are the weapon, if you will, that is being used to attack Americans. It could be a lawful target. And as you probably remember, the US with some amount of controversy, was striking oil trucks and oil production facilities in Syria that were being used by ISIS to raise revenue to pay the soldiers. So this concept of striking war supporting or war sustaining objects is one that I think is a legitimate target. But again, that brings us back to the very first point. Are we actually in a hard conflict with these cartels? And again, since the facts don't support that, I don't think the facts would support that striking the drums would be lawful because it's just not a military object in this case.

[Andrew Weissmann]

Wouldn't you also need to know more about, is there someone approaching the boats? Is there some other way to deal with it? Is there a way to rescue the shipwrecked people and then deal with it? In other words, all of the things that go to proportionality review. This is something Mary and I had to do when we were dealing with use of force in situations. But you don't really have to be a lawyer. Aren't there sort of a lot of facts that you would have, like how can you accomplish that mission but avoid killing people? I mean, wouldn't that just be a natural thing that you would be thinking about as a, not just as a policymaker but as a lawyer in terms of deciding whether this could be done?

[Todd Huntley]

Yes. Well, again, you know, assuming we're in an armed conflict and the law of armed conflict applies, any use of force has to be necessary and proportionate. And so is it necessary to use a drone to destroy drugs or an already disabled boat? And part of that is to ensure that you cause no more damage or suffering than is necessary to accomplish the mission. Another part of it is you want to preserve or conserve military resources. Does it make sense to use a $50 million missile or however much it costs to blow up a pile of drugs that are likely to sink or not be recovered any? Or do you have a helicopter in the area? Do you have another vessel in the area that can go recover those? You would also want to know those facts and they are legally relevant.

[Mary McCord]

Let's take a break right here. I hate interrupting this conversation, but we need to take a break and then we will be right back with more with our guest, Todd Huntley.

[Todd Huntley]

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Your budget at DSW stores or dsw.com. So, Todd, let me take you to something else that has now become controversial over the last 12 to 24 hours, which is when this news first broke about the second strike. I think on Friday, right after Thanksgiving, the reporting was that this was done on Secretary Hegseth's order. The secretary seems to be pulling back from that. Now. Donald Trump himself made a statement the other night that secretary had told him he did not give this order. And then we saw Secretary Hegseth last night putting out a social media post that said that this order essentially was given by Admiral Bradley, but that he fully had Admiral Bradley's back.

[Andrew Weissmann]

By the way, that was the most hysterical laugh about this because he. It was basically saying, I don't have your back because you made the order under the bus. Yes, exactly. Because you made the decision, not me, but I'm right behind you.

[Mary McCord]

Yeah. So I have two questions for you. One is that if it's true that Secretary Hegseth didn't actually give like a separate second order, oh, kill the survivors, but nevertheless, his first order was clear, leave no survivors, kill everyone. Is that lawful? Because this gets into this idea of denial of quarter, which I want you to address, because that's a term that's being bandied around quite a bit, and I want people to understand it. So is that something that itself, you know, if the initial order is leave no survivors survivors, and Admiral Bradley took it to mean we leave no survivors, would that initial order have been problematic? And then secondly, oh, my gosh, I mean, I'm reading reports now of, you know, officers within the Department of Defense being very upset about Secretary Hegseth now sort of pushing the blame off on others. And I want you to comment on sort of the impact of that on the military. And I'm sorry to give you a compound question, and if we were in a court of law, it would be an appropriate time to object. But we're not. We're on a podcast.

[Todd Huntley]

No, no. So you're right. So this concept of no quarter is that a commander gives an order that no prisoner should be taken, no survivors should be left, so that, you know, you do not give protection to those who are trying to surrender or who are wounded. Out of the fight, they are to be killed regardless of their status. And that, again, is one of the oldest prohibitions in the law of armed conflict, that, you know, you may not give an order to show no order or accept no quarter. And the other point about if Hegseth gave that order, again, it goes to we really need to know more facts, because what was the form of the order?

[Andrew Weissmann]

Was it oral?

[Todd Huntley]

Was it written? What exactly was the wording? How was that received? I mean, if you're Admiral Bradley and you receive an order that's unclear, it's your duty to clarify it and make sure you have a clear understanding of what those orders are. You would want to know the back and forth, the exact conversation, the way it was worded. But you would also really. That's why I said at the beginning, you really need to know what the rules of engagement are from reporting. I think I just read this morning that Secretary Hegsek himself was what we call the target engagement authority.

[Mary McCord]

Right.

[Todd Huntley]

That he was the one that had to authorize the strike. Well, did the rules of engagement then give Admiral Bradley the authority to do a follow on strike? Did he have to go back and get permission for that follow on strike?

[Andrew Weissmann]

Right.

[Todd Huntley]

That would be in the rules of engagement on the execution order. And so it would be important to know that. One other thing that I would say is, given what we know about Secretary Headset, I would imagine that he was watching this video live as it went down. And the other thing is, you know, there are chat functions that are available, classified chat functions that are generally used in the Joint Operations center to communicate with both higher authority as well as lower units in the field. And there are probably records of that. There are logs that are kept in those chats. So are those going to be made available to Congress so they can see exactly what was said, when it was said, and who was observing the operation as it was ongoing.

[Andrew Weissmann]

That actually is the perfect segue. The question I have for you is what are the reporting obligations in this situation to Congress? One of the things that I am struck by is there was a lot of public chest thumping and bravado in connection with the first strike, and video was released publicly. As to the first strike, I find it remarkable that it didn't include the second strike. In other words, to me, somebody had to have made the decision to cut it. And that is something that Mary and I in our criminal prosecutor roles sort of view as consciousness of guilt. In other words, why would somebody just reveal the first part, which obviously is problematic in and of itself for the reason we've talked about, but not revealing the second part, the thing that we're talking about now, which is so problematic, even assuming the administration's own rationale that we are in an armed conflict. And so what are the obligations to have revealed all of this to Congress and to be forthright and what is appropriate to withhold? And what should Congress be expecting here? And if you are still in the government, what would you be advising needs to be done now?

[Todd Huntley]

Well, every military member has a duty to report violations of the law of armed conflict. Right. And that is supposed to go up the chain. It usually goes up the chain through the combatant command. So in this case, it should have been reported up to the commander of U.S. southern Command, who, by the way, announced his early retirement shortly after this, and then that would have been passed up to the Department of Defense, and those are all kept track of by the combatant commands, by the services, by the DOD General Counsel's office. And then as far as reporting to Congress, there are several reporting requirements. There were many implemented through NDAA's during the Obama administration to report counterterrorism strikes. And from what I understand, there's a current reporting requirement that probably hasn't been met. So this should have been reported up at least to the military chain. And then the military chain, the highest levels at the Department of Defense would have had a duty to report it over to Congress.

[Mary McCord]

We do know now, in a rare display of bipartisanship, that the chair and ranking members of the Armed Services Committees, I think of both the Senate and the House, have opened up inquiries. They have made requests for information, and I hope that we will see hearings in the future. But before we let you go, Todd, the second half of my compound question, the impact of all of this, and particularly now this effort, it seems like, to shift blame, what's the impact within the military?

[Todd Huntley]

It's not good. I think a lot of people were probably, if not excited, probably looking forward to kind of a loosened rein on the right to use or the authority to use force that this administration had talked about bringing in. I think a lot of military people, not necessarily targeting drug dealers, but overall giving commanders at lower levels the authority to use force is generally well received in the military. Now that that was done and the commander followed up on that and is not being backed up, I think undercuts that, the trust in the administration, the morale. It really undercuts that. The other thing I'd like to add too, about what should be shown to Congress, what should be shared kind of just overall. The question I would ask is a few weeks after this there was a striking eastern Pacific on a semi submersible vessel where there were two survivors.

[Mary McCord]

Yes.

[Todd Huntley]

Why were they rescued and not double tapped? Was there a change in the roe? Was there a clarification in the orders? I would want to know why the change.

[Andrew Weissmann]

ROE is rules of engagement.

[Todd Huntley]

Yes.

[Mary McCord]

And we've talked before also about why were not those survivors brought back to the United States for prosecution if they were in fact trafficking drugs. But instead, you know, despite what the President has said about the scourge of drug trafficking, they were repatriated to their countries of origin. And of course that's beyond the scope of today. But we so, so appreciate you joining us, Todd. And there's so much more. We could talk about this for more hours.

[Andrew Weissmann]

Well, this is one where the hopefully Congress will do their work. I think one of the things that you mentioned earlier, in addition to contrasting this with the of other survivors, is this idea that there is documentation and a chat feature. I think that is so important and I hope people are listening to this that know that there is potential contemporaneous documentation that will either sort of substantiate or not the various claims that are being made and efforts to what appear to be throw somebody under the bus. Whether that's accurate or not seems to be something that it's so great to have an insider say. You know, this is where you can look to make sure that people are being candid with Congress. Obviously, it's a crime not to be. Todd, I cannot thank you enough. I have a feeling we are going to certainly cover this again and we may even try and implore you to come back. It is so nice of you. I know you're incredibly busy. Thank you so much. It's such an important story. We're so grateful that you're putting your voice out there and your expertise and knowledge. As Mary said, nobody is better in terms of their background to address what is going on.

[Mary McCord]

Thanks, Todd.

[Todd Huntley]

Well, thank you so much for having me on. I really appreciate it. Look forward to speaking with y' all again.

[Mary McCord]

So after that incredible discussion with Todd, we have got to think about the fact that the whole rationale of the administration for these strikes is that supposedly these are drug cartel members carrying drugs to the United States, which is what somehow translates into an armed conflict. And the scourge of drug trafficking is so significant that these strikes are justified. And at the same time, practically in the same breath as giving those rationales, we learn that the president has pardoned. And while we've been recording, Mr. Hernandez has actually walked out of prison, apparently.

[Andrew Weissmann]

And who is he?

[Mary McCord]

The former president, Javon dorris, sentenced to 45 years for being really at the center of one of the largest and most violent drug trafficking conspiracies in the world. He was alleged to and proven and convicted of using his position of authority in Honduras. He was the president to facilitate the importation of over 400 tons, tons of cocaine into the United States.

[Andrew Weissmann]

Let me just do the math, okay? The judge found, based on the evidence, 400 tons of cocaine. That is over 800,000. £800,000 of cocaine. Mary, when you and I were line prosecutors, it was a big case when you had like a kilo or two kilos on the table and people went away for a really long time. This is 400 tons. I just want to make sure people understand this is not a minor offense. Including, by the way, like, he had weapons and there were acts of violence.

[Mary McCord]

He accepted bribes.

[Andrew Weissmann]

This is what was found by a jury, what was found by a judge. And this same pretext of, oh, we are going after these boats and bombing them because we're against drugs. The same pretext of being anti crime is being used to not just use the military overseas. It is the same pretext that's being used, in my view, to bring the military and its use internally. And why the government says, oh, we really are concerned about crime, but the same disparity in terms of, oh, really, you're concerned about crime while you just pardoned hundreds and hundreds and hundreds of people. And we've talked about those myriad ways in which the pardon power has been abused. And so the irony, the hypocrisy here goes to the pretextual nature. So not only do you have what many people say is either a war crime or murder going on, but it's also in aid of a pretext that is being carried out, whether it's the military overseas or the military here. By the way, one comment the judge made in sentencing Mr. Hernandez, that I thought was so moving in retrospect is he said, let this sentence be a lesson to those people who are sort of higher educated and in essentially in white collars and ties and shirts that they're going to be held to account. That's right. That seems so much like a throwback when you think about what's going on here. But one quick point about the prosecution, because the President has said, oh, this is a Biden prosecution. This case started in the first Trump administration and then came to fruition and to trial in the Biden administration. But this is not one where you can parse out, oh, it's only one administration. This is both administrations thought it was appropriate to prosecute somebody who was responsible for 400 tons of cocaine coming into this country. Mary, I know you want to say something about that particular prosecution.

[Mary McCord]

Yes. The reporting is that during the first Trump administration, one of the prosecutors in the Southern District of New York who was most involved with this investigation was none other than Emil Beauvais, who later, of course, became President Trump's personal defense lawyer, who then became the acting Deputy Attorney General at the Department of Justice, and who now is a 3rd Circuit judge in federal court. So it's hard to see that this was some sort of political prosecution. And to your numbers point. One other number I want to put in there, because I looked back at the Department of Justice press release when Mr. Hernandez was convicted, and the department calculated that that 400 tons of cocaine amounted to well over 4.5 billion with a B doses of cocaine, because the.

[Andrew Weissmann]

Cocaine comes in at a very high concentration and gets cut. So say that number again.

[Mary McCord]

Yes, 4.5 billion with a B. Okay. And to your point about pretext, et cetera, just let that set in. This man has now walked out of the prison doors. And let's just now also keep in mind that at that trial, there were a number of cooperators who were former drug traffickers who testified at that trial, people who now are almost certainly going to be subject to all kinds of threats. I mean, who knows what is going to happen? Now, you also made a point, I think, worth reiterating, when the judge talked about accountability. Right. For the higher ups. You gotta wonder this one. I'm struggling to find the justification for this pardon, particularly given the inconsistency with the other rhetoric about essentially this war on drugs. But this is, again, a person in power who was prosecuted, which is something we know that Donald Trump feels strongly about because of his own personal situation. And, of course, there's been lots of reporting that lots of friends of Mr. Hernandez and highly placed people were asking Mr. Trump to do it. In fact, I think that's what he said. Lots of people were asking him to do it and that just, you know, we'll do more. We'll continue to watch the pardons because they are coming fast and furious and make no sense.

[Andrew Weissmann]

Yeah, well, we'll see whether there's a financial motive or whether it has to do with something I talked about with you, Mary, which is that political Queen corruption is something that the president has pardoned lots of people for political corruption. He has weighed in, saying that Bolsonaro, former president of Brazil, should not have been prosecuted, and he has been punishing Brazil for that. He has weighed in on Bibi Netanyahu's criminal case, saying that that should not be brought. He has made comments when he talked about this case and said it's a Biden case. He had said, oh, well, this is the president. And so he was being targeted because he was the president. So this idea that public corruption is not something you should look at, gee, I wonder if you're up to no good as a public official. What better than to have a government who doesn't believe in public corruption? But it's a really good example of using the pardon power. It can be used to completely eradicate the rule of law so that when you control the Department of Justice, you can decide who gets prosecuted and who doesn't get prosecuted. But as to those people who have been prosecuted federally, he can just release them. And that is what we're seeing, even though, and I hope courts take this into account, that it proves up the pretextual nature of what is going on and the litigation that is going on now. By the way, there is a case in the Supreme Court that we are all waiting for in terms of the National Guard in Chicago. And none of these facts that are going on in the real world should be able to be used by the government, and they should be able to be used by the challenger to point out the protectional nature of what's going on. In other words, what the district courts have been saying, which is there's no good faith in terms of what is being represented here.

[Mary McCord]

That's right.

[Andrew Weissmann]

Okay, so I think we're. I'm triggered.

[Mary McCord]

I'm in violent agreement with you, per typical. Let's take a break, come back and finish out. Mostly Talking about the 3rd Circuit decision with respect to the disqualification, frankly, of Alina Habba as U.S. attorney in New Jersey. And also, of course, make a mention of what did happen right before Thanksgiving here in Washington, D.C. with respect to the killing of one National Guard member and the serious wounding of another. Be back in a minute.

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[Andrew Weissmann]

So Mary, last week there was a horrendous, horrendous shooting of two National Guards people, one of whom has died and one of whom is, I think still in very serious condition. And just to be clear, I mean this goes without saying, but we're going to say it, which is obviously violence has no place. It doesn't matter what people's political views are. It is zero place in this society and is to be condemned and should be condemned up one side and down the other side. It also should not be politicized. There's been a lot of talking about who let this person into the country. And you know what? There's plenty of blame to go around if there is blame, if this could have been detected and it's not clear.

[Mary McCord]

To me yet, which I seriously doubt, to be honest.

[Andrew Weissmann]

Exactly. And so it may be an absolute tragedy and it's right for people to think about was their fault at blame. And I have sort of two quick points to that. One, it is true that he came in on a program that was started in connection with President Biden's term, but it also continued and he was granted that asylum under the current Trump administration, by the way. That's not to default to either administration. As we said, it may not be that there was a red flag there. I want to make sure people Understand what would happen in a normal administration, Republican or Democratic. And this comes from my training from Director Mueller when I was at the FBI. There is an important function to an after action, and for it to be public. If there was a fault here, the only way to have confidence in the government is for the government to do an after action to figure out what happened. Could it have been done better? What did we miss? What should be done differently, if anything, in the future, and how are we going to audit whatever those changes are? That was sort of a mantra from Director Mueller as to how you deal with this. One quick anecdote. After the Boston bombing, one of the Tsarnaev brothers was in the FBI holdings because in connection with an assessment, he had been investigated. And in the middle of trying to track down what was going on, Director Mueller. This has been publicly reported, so I can say it. Director Mueller turned to me and said, I need you to pull everything that's in our files on him, and I need you to sanitize it for what's called personal identifying information, material that can't be made public. But I need you to get it all ready, because we need to make this public. Whatever it is, whatever we did or didn't do needs to be made public. The public needs to know, and we need to have an assessment. And there was an inspector general who looked into this. And that's what you expect of the government. That is how you have accountability. That's how you have trust in the government. It's not by hiding things. It's not by lying about what's happened. It's not by not reporting to Congress what happened. And to me, rather than politicizing who did what to whom and which administration is at fault, it's like this is an apolitical endeavor as to what could be done better.

[Mary McCord]

Yes. I think that it's also important to recognize that all the vetting in the world doesn't necessarily lead to the discovery that somebody at some future point might have a grievance and decide to act on it. I mean, this is a country where we have had, unfortunately, we have seen this happen time and time again by us Born citizens, occasionally by immigrants, such as in this instance. I mean, this is not unique to one subset of people, and it's not the thing that is easy to detect in advance when somebody acts on their own. And at least it's so far, and the investigation is ongoing, at least by what we saw and what happened outside that Metro station. This was a person acting on their own. So I agree that you need to sort of turn over all the rocks and see are there things that could have been done better. And that includes in the situation of having the national guard deployed in D.C. i mean, does that make sense? And I think the idea of, oh, now let's send 500 more. Remember, the rationale for having the National Guard in D.C. was to combat this crime problem. But I would not include what appears, appears to be a targeted shooting in the generic crime problem. If this was a targeted shooting at National Guard members, it was sort of the opposite of a normal crime problem. It was like targeted potentially because of some sort of feelings about this militarization here. And remember, this is somebody who did work with our military overseas in Afghanistan. So there's so much more to learn about this. But I think this notion that somehow this was a failure of vetting, I mean, maybe, but I'm skeptical. I think significant though is the way this is being used to really, really vilify migrants yet again. And I'm just here are all the things that already have happened since this tragic shooting. And I do want to say, I mean, we are Talking about a 20 year old who was killed, a 20 year old woman who joined the National Guard straight out of high school. We're Talking about a 24 year old in critical condition, horrible, horrible violence against people just doing their job and completely without any excuse at all. No rationale for that. But the response, pausing all asylum decisions for migrants currently in the United states. That's about 1.5 million people pending asylum affected now by this pause, calling into question their legal status. And remember, when you have a pending asylum application, you have authorization to work. Reviewing the green cards that have allowed people from 19 different countries, mostly in the Middle east and Africa, to live and work permanently in the United States. Reassessing already granted asylum approvals that were issued under the Biden administration, indefinitely halting immigration applications by all Afghan nationals and barring Afghans from entering the country. That list of things, I've been reading about it since it happened, New York Times this morning put these all into a good sort of package of describing this impact. This is a really, really significant impact on migrants from this one incident. And again, I'm not belittling the incident, but to put on pause. And there's some things that I will not read because they are too foul to read the Secretary of Homeland Security, some of her social media last night. That is just some of the meanest, most hideous things I've ever read. And that's why I'm not going to read it in terms of the way she's treating migrants. This is a country of immigrants, except of course, for the Native Americans. And we should not forget that. But Andrew, should we finish out by the Third Circuit's significant decision yesterday with respect to the quote, unquote, acting, and I say that quote unquote, because she's not legitimately acting as the U.S. attorney in New Jersey, Alina Haba, just very.

[Andrew Weissmann]

Quickly, the Third Circuit has now decided the issue that we've seen over and over again throughout the country, but most recently was raised in connection with the James, Comey and Letitia James case in connection with their challenge to Ms. Halligan. And here the third circuit has heard the appeal as to whether a Alina Haba is properly the U.S. attorney and acting as the U.S. attorney and whether she was properly appointed and whether she could sort of be, after the fact, given the position and role by the attorney general who has tried to sort of backfill, ratify, ratify. Exactly. And the unanimous Third Circuit, in a lengthy decision, rejected the government's arguments over and over and over again and very much took them to task, saying that the things that you're saying. Let me just give two quick examples. One, it said it is directly contrary to what the statute says. So that goes to the sort of ratification argument they just said that is completely belied by the language of the statute. And two, it said that to read it the way they would would absolutely make no sense whatsoever. They completely agree the district judge. And so the bottom line is that Alina Haba has been ruled by the Third Circuit unanimously that she cannot act as the U.S. attorney in New Jersey.

[Mary McCord]

And this really, remember, this is not the first situation to be challenged of a either an interim U.S. attorney who stayed too long or the case of Lindsey Halligan. Of course, that precipitated the dismissal of the Comey and James cases because she was not legitimately serving as the interim U.S. attorney and she was the one solely responsible for their indictments. We've had judges in other districts, including in New York and in, I believe, Nevada, and I think five or six places say, no, you don't have authority. There are laws that conscript that the ability to appoint an acting or an interim U.S. attorney, the federal Vacancies Reform act, and another very specific provision that provides for the limitations on the time an interim U.S. attorney can serve. That was the authority that the judge ruled last week in the cases of Comey and James that Palligan not appropriately serving. And here, as you indicated the Third Circuit said what the administration tried to do here completely violated the text of the Federal Vacancies Reform Act. And because of that, it violates essentially the Appointments Clause. Because the Appointments Clause allows Congress to prescribe these rules for inferior officers. They prescribe those rules. Those rules were violated. And this means this is significant for other situations around the country because this is the First Circuit court case, appellate court case we have. So the administration has a decision here. Do they just abide by this, Start nominating people who are actually qualified so maybe they can get through Senate confirmation and actually follow the Vacancies Reform act and when there's a vacancy, actually have the first assistant in the U.S. attorney's offices serve in that acting role which would be compliant with the Federal Vacancies Reform Act. Okay, that's option one. And people may be chuckling at the very fact that I propose that as an option. The other options are they could seek to have the full 3rd Circuit en banc review this decision and maybe overturn it. Third option is they could seek cert in the Supreme Court or not cert on this because this would be probably an emergency like usual, seek an immediate stay of this decision and then ultimately could seek to actually have full review. And we will see in these next few days what they do, just like we will see what the Department intends to do with respect to the dismissal of the Comey and James matters.

[Andrew Weissmann]

It'll be fascinating though, if they do try to take it up to the Supreme Court, because if they lose there, it kills everything across the country that they have been doing. So there's a lot of risk. So stay tuned for that. Thanks everybody for listening. I know that the first part of this episode with Todd, it's pretty hard stuff, so thank you so much for listening. Thank you so much for staying engaged. Remember, you can subscribe to Ms. Now Premium on Apple Podcasts and you can get this show and other MSNow Originals ad free and you'll also get subscriber.

[Mary McCord]

Only bonus content this podcast is produced by Vicki Virgolina. Our associate producers are Rana Shabazzi and Iggy Monda, and our intern is Colette Holcomb. Greg Devens II and Hazik Bin Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for Ms. NOW Audio.

[Andrew Weissmann]

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