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- [00:00]
A
Did I talk too much? Can I just let it go? I wish I would stop thinking so much.
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B
Take a breath. You're not alone. Counseling helps you sort through the noise with qualified professionals. Get matched with a therapist online based on your unique needs and get help with everyday struggles like anxiety or managing tough emotions. Visit betterhelp.com randompodcast for 10% off your first month of online therapy and let life feel better.
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A
Hey there radsect listeners. Scott R. Andersen here with a quick public service announcement. The month of December is here and that means that we are in the countdown to our annual holiday episode where we talk about the topics and discuss the object lessons you share with us. So if you have any topics you want to hear us dig into or any object lessons you want to share, whether from the serious to the frivolous, please send them along to us@rationalsecurityawfirmmedia.org just send them by December 17th so they can be included in this year's episode. Thanks so much. So this is the first time in a while we're not recording with an intent to put it on YouTube and I have to say I am really digging it. With apologies to our YouTube watchers at home, it's nice to let loose a little bit. It's a rainy pouring day. I did not have the willpower to bike into the office like I usually do, so I'm recording from home. I'm in a sweatshirt for a band that hasn't been cool for a long time, covered in my baby's snot stains everywhere. It's like really? This is old school off air. This is the way we used to do it.
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C
The way some of us still do.
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A
Not baby stains, puppy stains in your case, I think more often than this.
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C
Yeah. No, it's only because the kids grew up. It's not because I'm above it or anything.
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A
They finally learned to use tissues. I will say it makes me less self conscious about the fact that my now relocated home office is essentially I've been described as a murder basement because I have to turn the lights off so it just kind of looks like exposed rafters and wooden panels. Like the sort of place you would detain somebody unlawfully, lawfully or unlawfully if you had the option. But now I get to stretch my legs a little bit.
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D
Scott, your murder basement has nothing on. My murder basement, which is unfinished, has 6 foot high ceilings, well 6ft up until the joists, and has a gigantic chest freezer where you could probably store a dead body.
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C
At least after you dismember it.
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D
It's got real dark guys.
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E
There we go.
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A
Well, that is intimidating.
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D
It couldn't fit you, Sky. You're too tall.
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A
That is. That's the secret. That's the only reason I'm comfortable in your basement, I think, exclusively.
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C
Or still alive.
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A
Or still alive, exactly. Probably one or the other too tall.
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C
To store in a freezer. The Scott R. Anderson Scene.
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D
Foreign.
- [02:55]
A
Hello everyone, and welcome back to Rational Security, the podcast. We invite you to join members of the Lawfare team as we try to make sense of the week's big national security news stories. I am thrilled to be joined by a couple of my favorite co hosts and guests here on the podcast. Joining us first of all, back again is co host emeritus, the most co host, the most emeritus, lawfare Editor in chief, Benjamin Wittes. Shane may not take kindly to that, but I think you've earned it at this point. Ben, thank you for coming back on the podcast.
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C
Certainly the most emeritus. Thank you. Scott.
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A
You'Ve heard I think you've heard both titles at this point. And joining us as well is of course, one of our frequent guests, particularly we are talking about matters Ukraine and European security. We are joined by Lawfare contributing editor Eric Charmela. Eric, thank you for coming back on the podcast.
- [03:43]
E
Thanks for having me.
- [03:44]
A
And last, but by no means least, we are joined as well by LawFair's executive editor and frequent guest back on the podcast once again is Natalie Orpet. Natalie, thank you for joining us on the podcast.
- [03:54]
D
Thanks for having me. Scott.
- [03:55]
A
Well, we have a lot to get into. We are, of course, filling in for not one but two weeks in national security news headlines, as we had the Thanksgiving holiday last week and it has been a busy two weeks. A lot has been happening on a variety of fronts, some of which we may have to circle back on next week. But for this week, we've got a couple of big topics very squarely in our wheel well to hash through. Topic one for this week, the art of the ordeal. The Trump administration has been at the center of yet another bout of somewhat awkward shuttle diplomacy the past several weeks. After an initial 28 point plan for peace in Ukraine, it appeared to have hashed out with Russia involving a lot of Russian talking points, was met with widespread skepticism both at home and in Kyiv, leading it to shift focus to a different 19 point plan. Officials appear to have hashed out in somewhat closer consultation with Ukrainians officials and European officials, which was subsequently rejected by Russian President Vladimir Putin. What does this kind of chaotic process tell us about the Trump administration's strategy and priorities and what is it likely to mean for America's Ukrainian allies? Topic 2 the War Crime on Drugs Defense Secretary Pete Hegseth is at the center of yet another controversy, this time over his reported order to, quote, unquote, kill everybody in the first strike on an alleged narcotic smuggling boat this past September, an order that intentionally or not, led to a second strike that killed several people who were by that point clinging to wreckage in the open sea in seemingly clear violation of Defense Department practices and laws of armed conflict. Hegseth and the White House have sought to shift responsibility for the second strike to senior military personnel, but it's not clear whether Congress, where Democrats and Republicans on the armed Services committees are threatening oversight, have been persuaded. What concerns does this revelation raise about Hegseth and the impact he has had at the Defense Department and what might be needed to address them? Topic 3 unlawful good several legislators who are also current or former service members have been labeled the seditious six by the Trump administration and its allies for public statements they have made reiterating that service members are only obligated to follow lawful orders, specifically in relation to ongoing counternarcotics military operations the Caribbean. At least one of those legislators, Senator Mark Kelly, a retired naval officer, has been publicly threatened with a court martial by the Defense Department. How seriously should we take these legal threats and what do they mean in the broader context of the debate around civil military relations and the obligation of service members to follow the orders of the President and their commanding officers? So for our first topic, Eric, of course I want to come to you on this as somebody who follows these topics more closely than just about anyone in our circles. This is the second or third now I think third by my count. Kind of weird bout of shuttle diplomacy. We have seen the Trump administration launch into around Ukrainian peace plans. This time it appears been kicked off by a kind of back channel process that's been set up between senior Russian interlocutors and Steve Witkoff, the president's kind of conciliary around Gaza issues now also around Ukraine, who appears to have been taking the lead or at least one channel or one line of communication around the negotiations. That's what yielded this fairly controversial 28 point plan, a lot of which seemed to heavily lean towards Russian preferences and Russian demands, a few of which even seemed a parrot language Russia had put forward, at least in terms of some of the verbiage. People have suggested that it reflects a direct translation from Russia that might be reflecting that they're the ones who essentially put these points into the plan. We since seen that plan face a lot of skepticism, not just among Democrats, but also among Republicans as well in Capitol Hill, particularly among those who have generally viewed Ukraine as more of an ally and favored a more aggressive stance against Russia, particularly around the Ukraine conflict. And that has now led us to this alternative 1940 point plan, hashed out in a little closer consultation with the Ukrainians, who I wouldn't say are necessarily warm to it, but see it as a better starting point, I think, is how Zelenskyy has described it. But that plan, at least I believe, as of as recently as in the last 24, 48 hours, appears to have been more or less shot down by the Russians, or at least not embraced. I don't think they've been quite rejected the process outright, but obviously aren't willing to buy into it. So talk to us about what really stands out for you in this process. What are the big demands and separations between the two sides that the Trump administration seems to be trying to bridge in its own, perhaps ineffective way? And where does the Trump administration seem willing to apply pressure? Like what does this tell us about what it wants to see out of this process and where that might lead it to apply the pressure it can bring on both sides, but particularly Ukrainians?
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E
Sure. So it's, you know, it's been a very confusing few weeks. I wouldn't even say with confidence that we still know whether there is a plan written down anywhere. As we're recording this, Steve Witkoff and Jared Kushner are in Moscow right now. They've had meetings with Putin. They've had meetings with Kirill Dmitriev, who was the Russian business envoy, who, as you were referring to, Scott, sort of hatched or had at least some heavy influence in this plan that Witkoff came up with. But this comes on the heel of a series of very intensive meetings over the weekend in Florida where a, you know, pretty large and experienced Ukrainian delegation came and met with Witkoff, Kushner and Marco Rubio. And the tone that came out of those meetings was fairly positive and constructive. I would say, overall, though, you know, that the Trump administration has been very bullish on a deal.
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You know, saying that with the exception of Rubio, you know, the White House seems to be saying that there's really only a few minor issues to be figured out, and we're on the on the cusp of some major groundbreaking agreement. Rubio was a bit more cautious over the weekend, saying there's still significant work to be done And I think that is a more honest assessment, frankly, of where we are. Because if you look at any version of the plan that's leaked and you identify what are the main issues that still need to be resolved, they are the central, most sensitive, most important questions. And the things that no one has been able to come up with any sort of compromise solution for the past four years, otherwise this war would already be over. And those are questions of territory, Those are questions of Ukraine's long term security, security arrangements for Ukraine, the size and capability of its military, its relationship with Western countries and so on. And then additional things that have been thrown into this conversation somewhat unexpectedly. The frozen assets of the Russian central bank that are sitting in Europe. It's interesting that this.
- [10:36]
Latest diplomatic gambit sort of came on the heels of an inconclusive meeting of the European Council in October, where there was definitely some progress and momentum, but still not agreement on how to structure what's been called a reparations loan for Ukraine based on the frozen assets. And this whole diplomatic play seems to have taken the air out of the balloon on that, because the original Witkoff proposal was essentially to unfreeze the assets, hand a good portion of them back to Russia, and then use only a subset for Ukraine's reconstruction needs, which the United States would have some sort of stake in.
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What was written as the profits, although I don't understand how you generate profits on reconstruction because we're talking about social and critical infrastructure. But in any case.
- [11:33]
We have these really key issues that I have not yet seen any evidence that the sides are moving any closer. The Russians, Putin has really dug in. He is facing very little pressure to compromise. His rhetoric the past few days has been extremely bellicose. And the Ukrainians, although they've been facing this corruption scandal and Zelenskyy had to let go of his chief of staff last week, the Ukrainians are still resolute that they don't want to be forced to capitulate. So I still don't see how this gets us anywhere else than where we've been, which is just round and round and no real progress towards a deal.
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A
So an interesting aspect of the administration's approach to the Ukraine dossier has always been the fact that there clearly are really, really divergent views within the administration. We knew this going in. You had people like Vice President J.D. vance, who had been openly and publicly skeptical of any US Assistance towards Ukraine. Some people he supported ended up in key national security roles, particularly the Defense Department. You had that kind of somewhat allied group of Folks that were extreme China hawks. It's kind of the Elbridge Colby camp that's at the Defense Department that wanted to prioritize Asia over European security, and that would generally entail reducing commitments to Ukraine. Then you do have people who have a much more conventional view of Ukraine as a major point of international focus, as a major concern, particularly hostile Russia as being a point of concern and this being as a major front to stop Russian aggression there. You have, at least before he became Secretary of State. Marco Rubio much more cagey publicly since then. But I think there's reason to think that might be how he actually feels about this. A couple other significant figures in the Senate, a few scattered folks in the House, and a few other folks in the administration, maybe at more quiet levels. That tends to be the idea that they're kind of more conventional foreign policy conservatives.
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E
I'd put Scott Bessen into that group, too.
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A
Yeah, absolutely. So talk to us about what this tells us about where the influence is on this. The fact that you get this 28 point plan. I think a lot of people, and I put myself in this camp as well, saw this as a sign that, oh man, the Eurosceptics are ascendant again, or at least had the inside track on this. Otherwise, it doesn't seem like a plan like this would be taken seriously, let alone put forward by the administration in a way that they then kind of had to awkwardly walk back, or at least Secretary of State Rubio kind of awkwardly walked back. But now they do appear to have walked it back. And we've got a plan that the Ukrainians seem at least more on board with, seeing as a starting point. So what are the dynamics between these different factions and how those kind of result in Ukraine policy?
- [14:13]
E
Yeah, I mean, it's this wrestling match. And I, you know, even if the original plan was walked back, I wouldn't say that we're in a place that's going to hold because when the Russians inevitably reject the revised plan, you know, Trump is probably going to strongly consider reverting to the original Witkoff version. And then we end up in that more kind of crisis mode of seeing the administration trying to apply very significant pressure on the Ukrainians to just force them to capitulate. So, you know, I don't know. I don't know what to make of the administration other than it's highly unstructured. There's no real internal process. You've got personalities that are vying for influence with the president all trying to deliver him a deal. It's not very well coordinated. You had this insertion of a new player that I think up until a couple weeks ago, no one had ever heard of the Secretary of the Army, Dan Driscoll, who was a law school classmate of JD Vance and seems to maybe be auditioning for Secretary of Defense, which may link to some of our other topics that we talk about later as Pete Hegseth implodes a bit. But.
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I don't know.
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Who is really ascendant and who's in charge here. I think it also makes it extraordinarily difficult to land the plane and actually get to a deal if the administration does not itself have a coherent policy. And I think this is a feature rather than a bug of the administration. It's because Trump himself doesn't have a firm view about an outcome. He just wants the war to end. So whatever it takes to get it over with. And I think that is, that is a strategic blunder because we do have a stake in this war.
- [16:13]
It is not existential for the United States, but it's certainly very, very significant and will have a significant impact on the security and prosperity of our main allies in the world, the Europeans. And so we should have some view of the general parameters we are willing to accept and then use our significant military, economic and diplomatic power to try and bend the outcome towards a solution like that. And it's been remarkable how all of the pressure from this administration has been directed against the Ukrainians and almost none, with the brief exception of those sanctions against Russian oil companies in October, almost none directed against Russia. And I fundamentally do not see how you get the Russians to think that they have any incentive to compromise when they face no cost. And the deal from their standpoint looks like it's just getting better and better because we're negotiating with ourselves.
- [17:07]
A
Ben, I want to pull you in on this because you and I have talked about this before, often with Eric on this podcast. You have been, I think, a vocal and longtime consistent critic of, or skeptic, I should say, of the idea that the Trump administration is going to engage in any other way that is going to be pretty destructive towards Ukraine. And certainly the 28 point plan would seem to line up with that sort of view. But we are in the cycle where we haven't seen the administration fully go for it. You have seen multiple windows where it looks like they said they are going to force the Ukrainians to take whatever plan is on the table at very disadvantageous terms and then cut off support and cut off engagement and then pushback from Europeans pushback from the Ukrainians has so far forestalled that actual outcome to some extent. We have seen the administration reduce support, reduce engagement, do things the Ukrainians and Europeans don't like, but hasn't gone full on, just cut it off. What's stopping this administration from getting there? And does that mean there are breaks? Whether it's folks in the Republican Party who disagree with the administration, whether it's Democrats with whatever ounce of influence they may have remaining to them, although I don't think that's that much at the current moment. Is it electoral prospects? What is the brakes on this administration that are keeping it from going where at least some people seem to want it to go, which is to fully sell out the Ukrainians? And are those breaks going to hold until 2028, 2029, or whenever you actually can get to some sort of resolution? What's the end game that that foretells?
- [18:39]
C
Yeah, so I think the ironic answer to this question is that the administration is being repeatedly saved by Vladimir Putin. And the reason for that there is this weird cycle in which the administration.
- [18:57]
Bombastically sells out the Ukrainians. The Ukrainians kind of rope a dope it and build into the sellout deal some minimal face saving, you know, reducing the 28 points to 19 and or playing ball with the administration's outrageous proposals after the White House meeting or Alaska. And then they do just enough and they're just agreeable enough to shift the terms just enough so that the Russians then can't take yes for an answer. And it's clearly the Ukrainian strategy to be reasonable and to engage whatever craziness the administration proposes and to rely on the Russians to be unreasonable and to pull away at precisely the moment that they could get a really good deal, just not one that, you know, abnegates Ukrainian sovereignty in its entirety.
- [20:16]
I'm exaggerating that a little bit for effect, but it really is the way this recurrent pattern has gone. And this cycle seems to be an example of that too. So instead of saying in response to the 28 point plan, what all the analysts said, which is, no, hell no, this is awful.
- [20:43]
This is, you know, Munich, 1938. The Ukrainians said, well, this is a difficult, you know, I forget Zelensky's exact words, but it was, you know, this is going to be a challenging period. And, you know, he proceeds to then surround himself with Europeans.
- [21:10]
And show up and negotiate and bend the thing in the direction of sanity. And then Putin walks away.
- [21:22]
And because Putin's fundamental view here is he believes that he's going to get everything. And so why should he agree to a process that that would require him to negotiate? And the one problem with this theory is that nothing about his military success really supports it. Yes, the Russians are making slow and incremental progress, but they are making slow and incremental progress at an enormously high body count in a sort of unsustainable fashion. And so, you know, it's possible to defend as an analytic matter the judgment that he's making, but what he's really saying is he will persist in paying enormously high costs for as long as it takes to wear the Western alliance down.
- [22:24]
D
I wanted to actually bring in one other angle to this because I'm curious in hearing from folks about it as well, I we may have mentioned. I apologize. I actually can't remember this morning President Zelenskyy met in Paris with Emmanuel Macron, the president of France. And I haven't seen a great readout, frankly, of exactly what happened. But it does look like the main takeaway was Macron made clear that there isn't a viable plan on the table right now and tried to sort of reestablish.
- [23:03]
A sign that France and Europe is ready to play a significant part in brokering things and sort of playing a counterweight to the United States, particularly as it is getting all of this criticism that we've been discussing about how very Russian oriented the original proposal was, which seems to be in keeping with past strategies, intentional or not, of the United States to come initially with a completely absurd proposal. I'm thinking back to the minerals deal and have that be the reference point, so that something that is patently unreasonable seems much less so because it's better than the initial volley.
- [23:48]
My question for you guys is where exactly do you think the pulse is on Europe? Because many, many months ago we talked in the aftermath of some messaging, again from Macron, but also from other European.
- [24:05]
And some rhetoric, continual rhetoric from the United States about decreasing support for Ukraine and moving out of the orbit of NATO, or at least putting a lot more pressure on Europeans, as the US Was intending to be less a part of NATO. And there were a lot of discussions about seeing what the Europeans, whether in the form of the EU or some other sort of arrangement, could formulate their own security arrangements, either within NATO minus the US or.
- [24:45]
As a separate, perhaps as an EU project itself. And it seems like the messaging that I've seen from European leaders in the past couple of days has been pretty consistent.
- [24:58]
Siding with Ukraine, portraying Russia as being unreasonable I thought an interesting consistent talking point that I saw also was in Europe, European leaders commentary on the.
- [25:12]
Corruption scandal in Ukraine right now, which is of course, as we mentioned, a huge deal that they're portraying it as a signal that Ukraine is taking seriously the need for reform and anti corruption efforts. And actually the emergence of this scandal is a good sign because it shows that Ukrainians believe in the need for the types of reforms that would bring them closer to Europe and further away from Russia. So I'm interested in hearing from all of you, but I will refer first to Eric, because I know you had actually referenced this a bit in the podcast, which I also wanted to tell people that we aired in the Lawfare Daily feed, I believe, at the end of last week, which is a deep dive into all of this with Eric and our colleague Nastya. So Eric, sorry, with all that wind up over to you, I'm curious what you think.
- [26:05]
E
Yeah, Natalie, I mean, I think the Europeans are the main.
- [26:10]
Element that's kind of missing from the conversation because in the three iterations of this flail that we've had, as Scott was referring to at the top, which was the immediate aftermath of the Zelensky Oval Office meeting in February, where you had the race to a US Russia conversation in Saudi Arabia, then the Alaska summit and everything around that over the summer, and now this latest one, in each case, the United States didn't coordinate with the Europeans ahead of time. The Europeans were almost an afterthought. But then the Europeans kicked into high gear to kind of mitigate the damage and shape the conversation to at least.
- [26:59]
Try and remove some of the most problematic points and get the train back on the tracks initially to repair the US Ukrainian relationship that was all but destroyed after the Oval Office meeting. So, you know, what this tells me is yes, the Europeans.
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Realize how dire the situation is and are capable ultimately of influencing this process, but they still lack a strategic vision here and they they have not been proactive. And you know, fool me once, shame on you. Fool me twice now three times. I mean, the Europeans, I think, really need to realize that, hoping for the United States to suddenly wake up and realize that Russia is the main threat and Ukraine is a partner and Europe is this incredible set of allies under this administration is very unlikely. And so the Europeans are going to have to start taking steps to assert themselves as an independent actor in this negotiating format to really create kind of a four dimensional format rather than just the triangle between the United States, Russia and Ukraine. So I see Zelenskyy travel in Europe as as really just a way to kind of find.
- [28:23]
Some sympathy and support from obvious partners who really haven't wavered. At the same time, the Europeans aren't moving on the main issues that would actually strengthen Ukraine's hand a the frozen assets, which I know we've debated a lot about the different legal aspects on lawfare. But without some major influx of cash, Ukraine is going to go broke by the middle of next year. And Putin is able to read a budget and understands that very well. So unless the Europeans themselves, the leaders, want to tax European publics to the tune of a couple hundred billion dollars over the next few years, which I don't think any European government is going to want to participate in that with the challenging fiscal environment, they've got to do something about the assets, number one. Number two, and it's related is the security arrangements, Natalie, that you were mentioning. And again, they got themselves so.
- [29:23]
Wrapped up in this idea of a European deployment to Ukraine, which I'm not opposed to and I think would be part of any long term security arrangement. But the whole notion of it was that it would be after a ceasefire. Therefore, Russia would have to agree to a ceasefire and this would somehow be part of the negotiation to get to a ceasefire. So they ended up holding their own policy completely hostage to Russian decision making. And I would argue that there are plenty of things they can do now, not subject to Russian veto, that would make their military support and their.
- [30:04]
Financial support to the Ukrainian defense industrial sector more predictable and long term to again try to chip away at this conviction that Putin has that basically he's on the precipice of seeing the entire Western coalition in support of Ukraine kind of melt away. And unless they can get that kind of plan together and start to articulate very clearly what their bottom lines are on any kind of peace deal, which they've been unable to do as well, because there are serious divisions, I think, within Europe about what that would entail. It's very hard for Europe to speak with one voice.
- [30:43]
I think until they manage to come up with that strategic vision, they're always going to be playing whack a mole and they're going to be responding to what Trump and Putin are putting on the table. And I just don't see how their interests are going to be protected in this format. Trump has shown himself completely willing to negotiate on European fundamental questions of European security directly with the Russians and with no Europeans at the table that should be deeply concerning to Europeans.
- [31:11]
A
So let me close with one more question. I'll Direct to Derek, if you were to put this in a sort of rational choice model of what we're looking at, I think it looks a lot like a classic war of attrition model, right? Like both Russia and Ukraine are waiting till situation makes it too painful for the other one not to capitulate. And so the real question becomes what is the rate of pain accumulating for the two sides? And there are a lot of variables that enter into that. United States is a big one. Will the United States keep providing assistance to Ukraine? Will the United States put pressure on Ukraine? Will the United States start putting pressure on Russia? Will you military operations tip against Russia? All these sorts of different things. A big pain point that's been back in play in the last few weeks is this sanctions package that's been sitting in Congress, something that is designed to put pressure on the administration primarily has been used, I should say, to put pressure on the administration more than to put pressure on Russia so far. But the idea that we're actually going to move this sanctions package forward, it does a number of pretty, pretty categorical things around Russia, some of which frankly may entail more of a pain for the United States or Western allies than Congress is fully anticipating. You might see some of them tweaked for that reason. But would, I think, if enacted, at least by my reading of the last version I saw, have a pretty substantial escalation in terms of sanctions being put on Russia without easy outs by the administration, unless they were really willing to just fuck their credibility?
- [32:42]
Do we think there is legs for that? Is there an action appetite for that now? Particularly because we are seeing Congress be a little more vocal and willing to depart from the Trump administration's orthodoxy on this and certain other issues. After the defeat in the election of Republican candidates in Virginia and New Jersey, there's a sense of, of the Epstein files, of this Hegseth controversy. There's just more willingness of Republicans to vocally criticize and put some pressure on the administration. Is that going to make a difference in this sort of package, or is the odds are that the administration is going to remain kind of the sole determinant of where US Pressure gets put between the two sides?
- [33:20]
E
What I would say on that, I mean, we are in a war of attrition. But like you say, there are a huge number of factors, and ultimately, you know, there's no mathematical equation to figure out which side is going to run out of Schlitz first. And it is ultimately about the perceptions of the decision makers on both sides about whether.
- [33:45]
They are in a winning war or a losing war, and the deal is going to get worse or better for them. And again, from the Russian standpoint, right now, Putin thinks that it's just going to get better. From the Ukrainian standpoint, I think they note that they realize that their situation is quite challenging on the battlefield in terms of their energy infrastructure that's been hit quite a lot over the fall. But they don't share the same analysis that the Trump administration has. I mean, what's been fascinating to read about is the analytic conclusion that Secretary of the Army Driscoll brought to Kyiv, basically saying, Ukraine, you're losing, your manpower is drying up, you're on the verge of a catastrophic break, and if you don't make a deal now, you're not going to have anything to negotiate with in six to 12 months. And that fundamentally does not align with credible Ukrainian analysis of the situation, where, again, it's quite bad, it's quite challenging. But.
- [34:54]
They are in a position to continue defending and keeping Russia to fairly incremental gains. As Ben was talking about. Very, very high cost to the Russians. Does that equate to a theory of victory in getting out of this attrition.
- [35:11]
Paradigm? You know, I'm not sure. So the question is then, who can keep up another year or two of very high casualties, continued grinding Russian advances? Can the Ukrainians hold out for that long? Will there be enough external support? Will society keep supporting the war effort? And I don't really have answers to that. But to just wrap up here on your final point, again, I think unless we do deploy the leverage that we have, then there's no realistic expectation that Putin would change that view of confidence in kind of the ultimate victory. And so on this congressional sanctions bill, there is obviously a lot of energy. I think the Witkoff.
- [36:02]
Fumbling of the diplomacy has only injected greater urgency. There's been supposedly a move to have a discharge petition in the House to bring the the Senate bill to a vote that was started by a Republican member, Brian Fitzpatrick. So if that gets 218 signatures, which I imagine would be relatively easy to achieve, then that puts obviously, Mike Johnson in a position where he's going to have to have a vote on this. And I would assume that there's going to be pretty wide.
- [36:36]
And probably veto proof majorities in both chambers for this. There are a lot of exceptions, as far as I've been able to tell from the latest drafts, in terms of giving the President exemptions. But still, it puts the President in a position where it's Kind of like, why aren't you doing more? There is still more that can be done. I don't think alone sanctions are going to be the solution to bring Putin to his knees, but they're part of the equation for sure. So we have to kind of structure our leverage and pressure.
- [37:12]
Across all of the domains of national power to include these security arrangements we were talking about earlier, because there's already a lot of carrots in these deals for the Russians. But again, there's very little by way of stick here. If you don't take this, then the situation gets worse for you in X, Y and Z ways. Unless we can credibly say that there's no reason Putin's going to accept a.
- [37:35]
A
Deal, well, we're going to have reason, I have no doubt, to come back and talk to this about this issue. Again, around the fourth round of weird, awkward shuttle diplomacy that's no doubt forthcoming. Until then, let's shift our focus to another circumstance where the Trump administration, instead of trying to wind down a war, however awkwardly and whatever unfavorable terms may be, trying to start one, and that is in the Caribbean. We've had an eventful week or so, I think, less than a week at this point in terms of media reporting, ironically, about actually the very first of these strikes that the Trump administration has now taken more than, I think, approaching two dozen of in the southern Caribbean and a handful of cases in the Pacific as well, targeting alleged narcotics traffickers. Late last week, a media report came out indicating that in the first strike on one of these boats that occurred September 2nd, there was a second pass on the ship. This was actually known. There were media reports about this within a day or two of the initial strike, that there had been an initial strike that deactivated the boat and then another strike that came down and made sure everyone was killed on board the boat. And that had certain ramifications for what we were guessing the legal theory was going to be. I talked about those in a piece I published on Lawfare on September 5th. I think it's the date. But this new report had a new wrinkle, which is that the second pass around wasn't going back to kill people who were actively, you know, still engaged on the ship, but in fact was primarily to kill two people who were clinging to wreckage on the ship and likely to be almost certainly to be injured as they were caught in the explosion. That category of people, people who are helpless and injured generally, is people consider to be, in the terminology of the law of armed conflict, or to combat, out of combat. And that generally means they're a more protected class of people not subject to these sorts of attacks. And indeed the example of shipwrecked sailors is actually the example used in the law of war mantle the Defense Department publishes that lays out where the obligations are here in terms of the law of armed conflict. So this decision appears to be in pretty clear tension with at least the way the Defense Department has traditionally interpreted and applied the law of armed conflict, to put it at a baseline and the way it's trained their service members in doing that. And that has resulted in a fair amount of pressure on Secretary Hegseth who is reported to have given the personal order to kill everybody that led to the strike. Although there's a debate over whether he actually personally authorized the second follow up strike. The Wall Street Journal today is reporting that he did, although the White House strongly suggested in a statement yesterday that he did not. And in fact, the White House and Secretary Hegseth have strongly suggested that decision was made by Admiral Bradley, the head of Special Operations Command that' been implementing a lot of these attacks and he is the kind of lead career service member that has been tied to this particular decision to pursue this follow up attack. Natalie, I want to turn to you on this first because I know you certainly have thoughts on this and you've worked in different aspects of the military justice system, particularly around the Lawn conflict in the context of Guantanamo and around other issues. Talk to us about why this stands out to you, why this controversy around this particular incident stands out, and why, frankly, an incident that we knew 90% of the story of that was pretty shocking. I thought when I heard about it in September that they did the second strike to kill everyone on board. Why this new wrinkle about these people being essentially clinging to the wreckage of the ship adds so much to the story and some of the legal problems that it raises.
- [41:06]
D
Yeah, so there is a lot here, and you're right that I have a lot of thoughts on it. I think one of the most prominent things that is gaining people's attention now is this notion that people who were helpless and hors de combat, as the terminology goes. But also it's just a pretty understandable thing, even from a layman's perspective, that if you're conducting military operations and someone is completely helpless in the water clinging to wreckage, that it seems sort of gut instinct, like it shouldn't be legal to just kill them. And it's not. And part of what's making such a splash here is that it Is, as you say, a specific example in the law of war manual that every member of the military is trained on when they first are being trained regularly, continuously, right before they enter into combat operations. There is no excuse for any member of the military, from the top all the way down to the bottom, to be confused on this point. That's one reason it's getting a lot of attention. I do want to say that, to take a step back here. I actually think it's really important to remember that even this discussion is actually not the right discussion to be having, because all of these rules are what applies once you are in a law of armed conflict or IHL international humanitarian law context. And we just are not here in a law of armed conflict world. And I really think it's important to note that, I think the term that's being batted around right now in the press and among analysts is that this is a war crime, because that example of shipwrecked people being murdered when they are eau de combat is a potential war crime. This is not even a war crime because we're not even at war. This is just straight up murder. The rules are different.
- [43:09]
When you are in a law of armed conflict worlds. There are certain types of murder of killing that are lawful because you're in a war when you are not. You may not, as a nation, conduct strikes that kill people in an extrajudicial fashion. And I think that's really important to remember here because it's sort of leaving that premise aside and jumping straight into the question of whether this was a viable attack under the law of armed conflict is sort of in my mind, and forgive the analogy, but I think this will be apt for some listeners. It's sort of like the debate over whether the National Guard will be good at controlling the crime problem in D.C. because that's not why the National Guard was sent to D.C. and that's not why they're there, and that's not what they're doing. And here talking about whether this is compliant with the law of armed conflict skips past the fact that we should still be talking about the fact that this is not an armed conflict. What it could be is, and I think there is mounting evidence that this could be true legally, is it could be what's considered a crime against humanity in international law. And that is when there are widespread or systematic attacks directed at a civilian population, those are extrajudicial. As I said.
- [44:35]
The notion is that you cannot kill civilians. Right. And the administration has been claiming, we know that these people are combatants. We know exactly who they are. We can't tell you why the intelligence is secret, et cetera, et cetera. But even again, taking.
- [44:53]
Not actually the legal framework that's applicable, but taking the Law of War Manual at its face, to just understand the way in which members of the military are analyzing the situation, there was a 2023 revision to the Law of War Manual that clarified that in the case of any doubt about whether a person or an object is a military objective, commanders have to presume the object is a civilian. And again, if you're not in a law of armed conflict world, you're not looking for combatants. You're looking for whether under international human rights law there is any viable legal justification for killing people. And there isn't here, and the administration is not even engaging with that part of the debate.
- [45:37]
A
I think it's a useful frame. And you're absolutely right. We have to bear in mind that most countries looking at this, and including frankly, most American lawyers, would not say that this rises to a level of an armed conflict.
- [45:52]
That the Trump administration, and the way the Trump administration claims it was in terms of it claims it used force against these non state armed groups, which is describing 10 Aragua and these other narcotics groups as because they classified them as already in a non international armed conflict conflict with the United States because they saw narcotics smuggling as effectively an armed attack on the United States. That is the part of this that highly lacks credibility.
- [46:18]
D
Sorry. I would just like to say that the analogy for that which the resort to the use of force for non international armed conflict is actually a little bit more complicated. But the analogy for that is basically saying that we're familiar in a domestic law context with the defense that I killed this person because it was in self defense. That resort to force justification that the administration is relying on is essentially the same as saying I killed this person in self defense because they had a cold and the cold may have gotten me sick and the getting sick may have caused me to die.
- [46:55]
A
No, I agree. I mean, there's lots of reasons. I think that is a really problematic argument, not least because the United States has expressly rejected it because it's faced the same criticism for economic sanctions for years and years and years. And as always said, the differentiation is kinetic effects, like actual physical effects. For anything to rise to an armed attack to constitute that sort of. To rise to be an armed attack for national law purposes. For the jurisdictional category here, though, I do think that I'm not sure that actually a single act can be both A war crime and a crime against humanity. And they're often linked together because there is this question of, well, is there an armed conflict happening or not?
- [47:33]
And so I'm not sure it actually defeats jurisdictional claims actually that this contention would be an issue or that even countries observing this now would contest that. Now, because this administration is pursuing concentrated levels of lethal force against these targets that is engaged in some sort of non international armed conflict, probably against Venezuela and the countries that these people are nationals of. If you buy the US view that attacking a national of a country is equivalent of armed attack on that country, something not all states do, probably most states don't. The United States at least has said that because the fact that this may have been a war entered into unlawfully doesn't take away from the fact the United States has now clearly been using military type force, I think of a sustained level that I would think this qualifies as a non international armed conflict, even if their pretensions that the basis for it entering into it may have been misbegotten in the front end. And certainly for US Law purposes, which is the context in which this has come up for the War Crimes act, which does make it criminally prosecutable, where you have a violation of grave violations of the Geneva Conventions and common Article 3 violations that would be applicable in non international armed conflict here, that would be the US View of it. And the administration couldn't actually easily say, no, we're not actually in a war, because if they did that, then all of a sudden this would be subject to the conventional murder statutes that the only way they get out of those is the public authority exception that usually exempts permissible military affairs. So I do think US Law actually is a little tighter to them that's harder to evade on that argument alone. They still have pardons, they still have prosecutorial discretions. A million reasons why this will probably never be criminally prosecuted. So that's my sense of the law. I don't know. I mean, feel free to.
- [49:20]
D
Yeah, no, I mean, listen, I think as a practical matter, we are stuck in a place where we have to analyze under the law of armed conflict. And you're right that regardless of whether the. You said bellum was lawful or not, it doesn't matter. Once you're in ihl, you're in ihl. You know, scholars will debate what is the distinguishing line of whether you are. We're stuck there. The law is actually a little bit clearer there anyway. So fine, I'm willing to engage it, but I do just want to say that that's an important thing to keep in mind because we shouldn't lose sight of the absurdity of the initial rationalization that the administration has put forth here. The one other small correction I think, to what you were saying is I think again, also as a practical matter here, it wouldn't be the War Crimes act that would matter here in terms of accountability. It would be the ucmj. And there are specific legal parameters around.
- [50:24]
The use of this sort of force and these types of analyses and what kind of accountability and prosecutions are available there that do differ from the civilian.
- [50:36]
C
System I want to not lose sight of. I think you can get into a kind of endless international law angels on the head of a pin set of questions here, but it seems to me the right place to start is somewhere different, which is.
- [50:57]
A series of even ifs. I don't think it is lawful to be blowing up boats in.
- [51:07]
International waters, civilian boats in international waters at all. It's not off use of force authorized by Congress. I don't think it's a plausible.
- [51:20]
Exercise of the President's inherent authority. Even if you disagree with that and you think it is, that is a plausible, lawful use of force. I don't think it's a plausible use of force under international law. Even if you think that's wrong, surely it is a crime to kill the people once they are hors de combat. And whether you say that under US domestic law, which is my preferred.
- [51:57]
Rubric here, 18 USC 1111 makes it a crime of murder for a US national to kill somebody on the high seas. And that includes, by the way, floating on the high seas, clinging onto wreckage. I don't believe there is public authority for that.
- [52:21]
But if you don't believe that and you believe that it is we are in some meaningful sense in combat, then the UCMJ applies and you're not allowed to kill people who are.
- [52:39]
Shipwrecked mariners. And so my, my view is sort of a series of even ifs, even if you believe this, it doesn't follow that, that, and even if you believe that, it doesn't follow and you have to go through a lot of them before you can get to where Pete Hegseth is, which is, boy, it's badass to blow up people after you've blown them up once. And, and that's where I think the administration is. And I don't, I'm not sure the precise mechanism that you get to use to get to criminality. And frankly, it doesn't matter because they're all going to be pardoned anyway. But I do think it is important to say no way, no how is this legal or appropriate?
- [53:31]
D
Yeah, I totally agree with that. And forgive my detour into the intricacies of international law. I just, just have a real pet peeve with the media right now, not even paying attention to the fact that this is not the applicable framework. And we should remember.
- [53:47]
This is all a pretext.
- [53:49]
E
I would have, I guess, two questions just coming from a layman on these issues. The first is, could you succinctly explain why this is so categorically different from counterterrorism operations and drone warfare that was conducted under several presidents of both parties? And is it about the mechanisms in place to determine who was a legal combatant and what rises to the level of.
- [54:21]
A threat to the United States and plotting and so on and so forth? I mean, what, what differentiates those strikes?
- [54:30]
C
Be precise. Do you mean what differentiates the strikes themselves or what differentiates the second strike where you're killing people who are already wounded?
- [54:41]
E
No, the killing people who are already wounded is pretty obvious. But I guess I'm getting more to Natalie's point about the, the underlying element here. And, you know, I think the, the counter I've heard just from, again, people who are not legal experts is, well, you know, if we designated them terrorists.
- [55:04]
C
Now you're walking into Scott's pet peeve.
- [55:06]
E
All right, well, great. So give me, but give me that argument. But again, explain it for a layman. Number one. Number two would be just on the international mechanisms here, because, you know, obviously.
- [55:22]
Holding countries accountable for war crimes and crimes against civilians and crimes against people who are trying to surrender or to combat or whatever has been an issue that we've been looking at in the Russia, Ukraine context and in many others in the Israel, Gaza context, so on and so forth. Obviously, this administration has taken a highly confrontational approach towards bodies like the icc. But is there a possibility that the ICC could render some sort of, you know, indictment or charge or something against Pete Hegseth and others that would functionally make it impossible for him to travel in the future to large parts of the world, you know, Interpol notices, so on and so forth? Is that something that you could see coming out of this? And would there be a way for the United States to actually, you know, for the administration to actually protect him from that? Obviously, a pardon wouldn't, Wouldn't protect him from any ICC action?
- [56:23]
C
Well, let me address the first question, and then I think the other two are better positioned to address the second one than I am. But.
- [56:33]
So there are three major differences. The first is the total absence of an authorization to use military force. Congress in the case of overseas counterterrorism, had passed a broad AUMF which authorized the use of all necessary and appropriate force against a variety of groups that.
- [57:01]
Were responsible for 9, 11 or allied with the groups that were.
- [57:10]
And that was the principal legal basis for a lot of kinetic strikes around the world. Nothing like that exists here. The second issue is.
- [57:26]
That these.
- [57:30]
In the case of certain activity that may or may not have been covered by the aumf, there was a very good argument, think of the bin Laden raid, for example, which clearly was covered by the aumf, that there's a very good argument that there's no way to get him by law enforcement means. Right. He's sitting in a different country.
- [57:59]
It's a country where we don't have easy law enforcement relationships. And if you think about all those drone strikes in the Fatah region, they're all areas where you couldn't just send FBI agents to arrest somebody or local law enforcement couldn't do it. We didn't do drone strikes in France or in Venezuela. Right. We worked with local law enforcement in those settings. Here you actually do have.
- [58:32]
A lot of non kinetic violence options like the Coast Guard. Right. We have a whole agency of the federal government that's devoted to interdicting drug boats and other protections. And so you don't have this argument of last resort and use of force as a necessary.
- [58:56]
And the final component is that, and this is a mix of those previous two. But I think it does stand on its own that you're, when you, when you say.
- [59:12]
You know, drug running is heartland criminal activity, these are not people who are waging war on America. Right. These are not people who were blowing up the World Trade center or destroying US Embassy buildings. These are people who are running drugs. And it has been the historical position of the United States, as Scott pointed out, that this is criminal activity. It is not military activity. And so there's a kind of historical tradition in our practice about how we do and don't deal with those things. Those are the three big distinctions. I will leave the ICC elements to Scott and Natalie.
- [59:59]
A
Well, let me add one point on that though, because there is, there is a problematic link to really harmful logic that arise out of the CT campaign that has leaked its way in here and I think has laid a foundation in a dangerous way.
- [60:14]
Because all the points Ben made is true. Like this should not be compared to CT operations because there's no congressional authorization, there's no actual armed attack or threat of an armed attack, and there's no actual necessity based into this, Even if you were to accept those as premises. Those are enough to distinguish this. But they have, particularly in this first strike where they killed again 11 people who were originally on board this boat. And we've known that since this day after the strike happened. We just didn't know that some of them were hors de combat on the second go around. The fact that they did this reflects something that has become clearly evidence in subsequent statements about the administration, which is that they have taken the view that anyone participating in any of these drug running operations is a member of that armed group, that they are in an armed conflict with trend Uragua the bar for being a member of an armed group to the extent that you could target them used to be that you have to do something like a combat function or a combat support function. But that definition has in practice expanded pretty dramatically over the course of particularly the counter ISIS conflict, where there were real challenges distinguishing between whose members of isis, for what purposes, what sort of functions feed into isis, which was a pseudo government, had all these governmental functions that were integral to what it was doing. You had this evolution where you had the definition of what it constituted becoming a member of an armed group expanding dramatically. That actually really has facilitated these strikes, in my view, for the simple reason that clearly they are of the view, this administration and somebody in DOD has signed off on this, that they can kill all these people in these boats. There's a separate argument they could make, which I actually expected them to make, because I think it's a better, if not particularly persuasive argument in itself that these are revenue generating targets. Like the same way we could bomb ISIS run oil spots in Syria and Iraq, which we did during the ISIS conflict. We can hit these because they're generating money for these terrorist groups. But if you do that, that means you can't kill all these people. Their collateral damage maybe, but you shouldn't be able to target them individually. And that's what they've done since this very first strike. Although again, actually the practice has varied a little bit, maybe because they understand some of the legal weaknesses of this argument. But if you're classifying all the people as being members of an armed group, what does that mean in other conflicts? Traditionally, because there's a high bar for membership in that group, that's derived from a parallel to what we do in a conventional armed conflict so now we're going to say postal workers are legitimate targets because they're members of the United States government. If you're in a war with them, is anybody who's a member of the entity. And the entity in this case being a foreign government, if you're in a conventional war, now warrant being targeted for lethal force. It's actually a very pernicious growth in who is targetable that has huge ramifications for civilian populations engaged in activities adjacent to military conflict. And that's a problem that exists and will continue to exist independent of this context. Well, here I think it's particularly ripe. Having laid out that point, Natalie, I'll hand over to you on the international accountability front, but feel free to add anything on that as well.
- [63:16]
D
Yeah, I just wanted to add I was going to make exactly the same points, Scott. And just to put a finer point on it, Eric, the sort of premise of your question.
- [63:31]
Unfortunately, sort of puts at a normalized point what the CT justification was in earlier administrations. And.
- [63:43]
Some people might think that it's quaint that I am caring about the international law implications or whether or not the earlier actions of administrations in a counterterrorism context were lawful, because now it's so much worse. And I think you're right to point out that the alarm that is being sounded now seems to indicate that there is a departure from before. I do think it's worth stepping back and saying the before was also, at least in some situations, in my view, very clearly violations of international law. No question. But even of domestic law. I think there were a lot of cases where, as Ben says, the key legal justification from a domestic standpoint was the aumf, where the AUMF was stretched to an absolute breaking point in terms of what it was being used to justify and how far it had departed from the actual terms of the aumf. As Scott mentions, the real recklessness with which.
- [64:51]
Decision makers have defined and expanded the definitions of key categories that are required to make an analysis lawful. Things like who is a combatant, who is an armed group. How do you make determinations that are absolutely core to whether or not.
- [65:10]
These actions are legal? It's been a slippery slope, frankly, and you're right to point out that this is much worse. But I do want to point out that what was before was really bad also and was also a major departure from the way that we conducted counterterrorism operations and armed conflict in the past.
- [65:33]
A
And on the international accountability front. I will just. We do have to circle back to answer your Question. I will say I do not have a lot of hopes for international accountability in this particular context. The United States is not a party to relevant treaty regimes. Referrals or setting up alternate bodies would require UN Security Council resolution, which would require US approval. There's domestic laws on the books. This is the famous Hague Invasion act that in theory could authorize up to military use of force to free service members that are detained in relation to some of these procedures. The one avenue you might see outside the United States, because the United States, because of the likely pardons, probably isn't not likely to be forthcoming anyway, is you do sometimes see countries take bilateral action, essentially where they assert universal jurisdiction or some other broad concept of jurisdiction to seek to bring criminal charges against people. The Pinochet case is a classic one. The Ariel Sharon case is another one. And these can be accountability mechanisms that have heft. That doesn't mean they always succeed in prosecuting the person, although they can occasionally. It's rare though, but they do put a lot of pressure. They make it a diplomatic point, diplomatic concern, if it's taken up by a government or by its courts, and if those countries have extradition treaties with other countries.
- [66:43]
But it really kicks in much after the fact when these things have become stigmatized and often when the country that the person was acting on behalf of isn't interested in defending them anymore, and particularly when they've exited office, because then you have a different sort of immunity standard that becomes relevant. So I think they're a far shot. That doesn't mean they're a non zero possibility. But I think a lot of accountability is going to have to come from within the US political system first and foremost, before some of these other things become vehicles. That said, I wouldn't 100% rule out or be super comfortable if I were one of the people involved in this, that I will 100% get a pardon. Because if these become politically toxic enough, this president is not reliable and he puts himself first. So ask yourself whether he's the person you want to rely on to save your ass from criminal prosecution down the road. That's not, you know, the horse I would want to hitch myself to.
- [67:38]
F
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- [67:40]
A
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F
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A
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- [67:49]
F
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A
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- [70:24]
A
All right, we have a third topic I want to leave some time for before we're out of it, but it is related here, and that is, of course, the Seditious Six, a shameful take on the Sinister Six. One of my favorite superhero villain teams. The Seditious Six is, of course, six Democratic legislators who are former or in some cases current reservist service members who are accused of having engaged in sedition by the White House for having said something that is technically legally correct, which is that service members are only obligated to follow lawful orders of their commanding officers and of the president. That is technically correct, although framing it that way does strip away some important nuance in this case. But of course, this isn't just about the fact that the service members said that. It's also about the incredibly harsh reaction we have seen the Trump administration take, threatening many of them, again, who are current and former service members, with potential legal action through the military justice system, including specifically in regard to Senator Mark Kelly, who's gotten kind of the brunt of this, I think, as far as I've seen, threats that will call him up out of retirement to subject him to a court martial. Something that is procedurally theoretically possible, although I think substantively raises major questions. Ben, I want to start with you on this one. Just talk to us a little bit about what you think the administration and the senators are up to on this one. This strikes me as a classic case of a very complicated legal question becoming a bit of a political tennis ball in a way that does not, frankly, benefit people's understanding of what it actually means in substance or do anybody much justice to it. I'm curious if you agree with me on that. You know, I sympathize perhaps with the Seditious Six on a lot of fronts, but I'm also not clear. There isn't reason to be a little skeptical or hesitant of the way they frame this issue. I'm curious if you agree with me or you think I'm being too conservative there.
- [72:19]
C
I just think it's mostly just intimidation and very little else.
- [72:26]
I note that there is no prospect of doing any prosecution of anybody for sedition. I don't know. To the extent that Mark Kelly may be subject to the ucmj, he still has a speech and debate clause privilege or a speech and debate clause immunity. And so I don't think there's any prospect of actually bringing a serious case against any of these people.
- [72:59]
And I. I also think that, you know, there is no quicker way to get senators to unite than to go after one of them for something that he said or that they said, whether or not on the floor of the Senate. So I don't think there's any serious prospect of prosecution of any of these people that said, look, there was no serious case for prosecuting Letitia James until they decided to do it. And if you're willing to bring frivolous litigation.
- [73:39]
You can do that.
- [73:42]
So I think you have to take it seriously as part of a broad campaign to intimidate universities, law firms, former members of.
- [73:56]
You know, former members of government.
- [74:00]
Journalists. But I'm not sure it has much substance beyond that.
- [74:07]
D
Yeah, if I could just talk about the substance of the message itself, because I think it does go to Ben's point, which I agree with, about the apparent frivolity of any sort of prosecution, because it's problematic for all sorts of reasons. But even if you were to boil it down to the question of whether they said anything that, as the administration is alleging, is trying to undermine the.
- [74:35]
Commander in chief or is trying to undermine the willingness of the intelligence community to obey orders, et cetera, that's just simply, at least with respect to the military, and bracket that for a moment.
- [74:51]
Really not the case. I mean, there is very clear law in the UCMJ which all members of the military are subject to, and they know it, and they are trained in all of these specifications. Article 90 of the UCMJ says that every member of the military has a legal obligation to disobey manifestly illegal orders. So, for example, when you're talking about things like can I do a second strike on a boat that is smoldering to kill the two people who are clinging to a shipwreck when, oh, I remember that that specific example was in the Law of War manual as something that I'm not allowed to do, that is a manifestly illegal order. There is the controlling case law in the military justice system is a case called United States versus Cali, which held that a soldier must disobey orders that a person of ordinary sense would know are criminals. A person of ordinary sense who is in the military has read the ucmj, has been trained on the Law of War manual, et cetera, et cetera, this is not actually I mean, there are nuances. Scott I'll allow there are nuances at certain points in terms of determining the lawfulness of orders. The question of whether someone is obligated to disobey and is actually obligated, not can choose to, but is obligated to disobey unlawful orders is not in question. What is in question perhaps is whether they will be able to determine what is unlawful. And I think that that invokes a really important issue that we've touched on a little bit and we've actually published a number of pieces in lawfare on this issue, which is that the legal expertise within the Department of Defense has been completely gutted. There have been many, many firings of jags starting at the in February. There were.
- [76:47]
The administration fired the top two lawyers. There have been numerous reassignments, including jags being sent to work as immigration lawyers instead of using their expertise on things like the law of armed conflict. And they've really been marginalized from the decision making process. I will refer people to an article that we published actually in 2022 by Todd Huntley that talks through what I think most civilians have no reason to know much about, but which is the role of lawyers in operational decisions. Because I think there's a misperception that lawyers only get involved in the back office from big policy questions. And that's not true. There are lawyers involved in targeting decisions along the lines of what we were talking about in the last segment I had referenced before. I think the inclusion of the intelligence community in this video was really interesting. So the participants in the video were not only former members of the military, but also several who had previously been in the intelligence community and I think specifically the CIA. All of them, I believe. I think it's worth noting.
- [78:02]
Just because it sort of raises the issue.
- [78:06]
We don't really know much about what the intelligence community's obligations are with respect to unlawful orders because the whole thing is a big black box. The intelligence community is not bound by the ucmj. So all of the legal analysis that I just described is inapplicable. It's a different title of the US Code. And generally what we do know is that the rules applicable to the intelligence community are set forth by presidential policy memoranda and other classified presidential actions. That can change quite a bit between administrations. And I will just point out, as I'm sure no one will be surprised to hear me point out, that we have a lot of reason to be concerned based on things that have come out in the course of litigation over the so called war on terror and Guantanamo and intelligence reports from Congress, that not only is it problematic that we don't know exactly what the rules are, but we don't know what happens if they are violated and whether there is any accountability. And we don't know whether the public would ever be made aware of that. Because everything that is happening and all of the rules applicable to people in terms of deciding what even is an unlawful order. What does that even mean? We don't know.
- [79:33]
A
No, it's definitely a fair concern. And I want to go back and clarify why. I think maybe some of the unlawful order statements may not contribute to the best understanding of what is actually here, because again, I think they're legally correct in terms of where the actual obligations lie. But the fundamental problem with them in my mind, I think Josh Braver, professor, I think the University of Wisconsin, a law school classmate of mine, and somebody who's going to read a law for a few times, wrote a great op ed on this in the Wall Street Journal a few days ago that kind of gets into this is that the institutional context for service members actually facing this conundrum is not a favorable one. It's that manifest standard that's built into these sorts of legal description that basically says there's a strong bias in which the service member is protected if they defer to their commanding officers on the legal interpretation and the defense is only clearly available to them and it's as a defense, meaning only after they face a court martial, not necessarily in defense to career repercussions. That may come anyway. But if you face an actual court martial, which by the way, can carry the death penalty in certain contexts, that's where you can deploy this, oh, this is unlawful, and it's manifestly unlawful. I knew this or that. This is in fact an unlawful order, and you can make that case. You can prove it. That's a really hard bargain for service members to do. It asks a lot of them. And it is something that we expect them to do in an institutional context where for them to take that, I think the only way we can reasonably expect them to do that regularly is if they have institutional support. And to me, to kind of bring our last topic in this a little bit, that's the part of this kill everybody order story that I find so upsetting and problematic and concerning that bleeds into this issue as well, which is that even if whether Hegseth gave the order intentionally or not, it was acted upon by service members down through the chain of command. And again, this is an order that really clearly flies in the face of what we can tell. Like even outsiders, I'm not a service member and never have been, but people who look at the Law of War Manual, look at the Operational Law Handbook, this is like pretty textbook stuff about this is the exact sort of people you're not supposed to be targeting. And this order went down and was implemented through the chain of commands. Now, now maybe part of that is because some people weren't doing their job and weren't thinking of it properly or weren't abiding by their limits among service members, although I think it's too easy to jump to that conclusion. I don't think that's fair. I don't particularly like the fact that that's the direction the White House seems to strongly be leaning with Admiral Bradley, the service member, the head of socom, that they seem to be trying to pin this on is to make it portrayed as this was his command decision.
- [82:14]
But part of the real problem here is that he or people beneath him don't feel like they appear to have felt either they were acting irresponsibly or they don't appear to have felt like they could actually rebut this order without facing repercussions while having institutional support for anyone. And frankly, looking at the last nine months of conduct by other people in this government, it's not hard to see why. Not only do you have the administration talking about the lethality of force, Pete Hegseth removing people jags left and right from the Defense Department, the people they would turn to for guidance on this, undermining whistleblowers, undermining other protections, they also have seen a Congress that has been patently unwilling under this majority to impose the smallest sliver of accountability for these decisions, often not even willing to talk to them. And in that environment, it is not hard for me to envision why it is so hard for service members who may serve really have reason to think they believe they're being told to do something unlawful or highly problematic, or at least something that certainly varies in that direction, for them to say, yeah, but if I say no, what's going to happen to me and my family? That's a horrible position to put service members in, but it seems like a very, very colorable one they're living in right now, including the people implementing this. And so I really think the solution for this, while it's right to say to inform service members of their duties and their rights, I don't disagree with that. The real solution to this has to be to put pressure on Congress and on the administration to go back and say no, it is actually okay to second guess these orders, push back against the administration's narrative that it's imposed since day one, that it decides and everybody else has to follow. And if they do otherwise Their careers are over, because that's literally not the way the system is supposed to work. And Congress knows because it set up the system. Now, maybe the sliver of accountability we're seeing for the Armed Services Committee, bipartisan, thank goodness, an immense credit to the Republican legislators willing to do this and risk the ire of the White House. Maybe that's a sign that there is a little bit more kickback here and that will be a sign that can bolster service members that they will be able to stand up and say, I'm not sure this is right. Or maybe the fact that the Trump administration is throwing the admiral in charge of SOCOM under the bus so transparently will make them realize that even if they follow the Trump administration's directive, they're also going to be on the hook anyway. But regardless, until we see some sort of accountability or check come in, this should be a really concerning thing. Regardless of whatever Hegseth intended or not, it's the fact this order was actually implemented that's highly concerning. And it just really bleeds into this bigger question about what does it mean for an order to be unlawful if you don't have a system where service members can actually speak up and say, I think this is unlawful? The answer is it doesn't mean much, I don't think.
- [84:53]
C
But that I can't tell if that's a criticism of the seditious Six or a defense of them.
- [85:01]
A
I think it's both. I think it's an argument that what they're saying is not the right focus, is to put it on the service members. It's got to start with Congress and the people whose job it is to hold the executive branch accountable. And we can only ask so much of service members in this sort of domain. That's my kind of takeaway.
- [85:16]
E
I mean, just to kind of put some final point on what Natalie was saying. I do think that for CIA employees, of which I used to be one, the rules and procedures are.
- [85:32]
Quite difficult to understand and require the institutions themselves to in good faith communicate what the mechanisms are to challenge some sort of order or program or whatever it is that an employee thinks may or may not be illegal or an abuse of power or so on.
- [85:51]
And I think with the Trump administration's sort of systematic destruction of inspectors general and ombudsman and other forms of sort of dissent and discussion within the system, a lot of employees are probably asking, what are my responsibilities? What can happen to me? So let's say I challenge something and then I lose my job or pension or whatever.
- [86:18]
What is my recourse? Can I go to Congress? There are obviously mechanisms through the IC Whistleblower Protection act for people to go to Congress, but that also depends on inspectors general acting in good faith in the system to transmit complaints again, which has been an issue before with this administration.
- [86:38]
So I do think probably separating out in the future any kind of communications about what what uniformed personnel versus CIA employees and others in the IC can and should do would be useful for this group to consider if they continue communicating on this topic.
- [86:56]
A
Well, on that note, we are out of time. I think we're gonna have a reason to talk about all these things again probably many times over the weeks and months to come. But until then we would not be rational security if we did not leave you with some object lessons to ponder over in the weeks to come. Ben, what did you bring for us today?
- [87:11]
C
So it has been a long time since I have been completely stumped by the object lesson question.
- [87:19]
But I completely forgot to bring an object lesson today. And so I am going to take.
- [87:25]
A
That'S because you're so emeritus now.
- [87:26]
C
I am going to take the every 10, 15 year mulligan on the object lesson. My object lesson is a mulligan.
- [87:36]
E
Respect.
- [87:37]
A
I respect that. That's okay. Every once in a while we get one of those. So that is your one, Ben. Well, see you again in 2035 for the next one you can deploy. Eric, what did you bring for us this week?
- [87:49]
E
Well, I am currently reading a really excellent book which has been the subject of a Lawfare podcast episode, actually, Scott, that you hosted earlier this year. The author is Eddie Fishman and the book is Choke Points and it's a history of American sanctions. And I think what what's great about it is not only the kind of level of substance and the deep dive into how the United States managed to gain control of and then weaponize the international financial system in order to have measures short of armed conflict to go after adversaries. But I think it's honestly the way in which Eddie tells the story, which is very New Yorker narrative, nonfiction, character driven, short chapters that are very, very readable to an audience that may know very little about sanctions. And so I've just found it incredibly fun to read.
- [88:45]
A
It is a great book and I do recommend that conversation with Eddie, who's a very interesting guy and has lots to say on this topic. And it's a fun read if you want to read it. Lots of personalities, a lot of love, fair contributors and friends and associates popping up throughout that book for those who are keeping track at home for my object lesson this week it is December. That means that it is the season of holiday object lessons. Five years into this gig, four years into this gig. I'm running low on them at this point, if I'm being completely honest, but I've been kind of scrounging my barrel for what sorts of recipes, what sorts of cocktail recipes, what sorts of music I can bring to bear this holiday. And I found one that I don't think I've recommended before. I may have mentioned it, but I don't think it's been an object lesson before. From my very loose notes. I keep on these things as an album that's found its way back into my rotation. I think I've mentioned on the podcast before I love soul holiday music. I think it's the best music to play at holiday parties because it's up tempo, it's exciting, it's interesting, it's more fun for party music and it's got a lot of seasonal vibe. And there's an amazing one by Sharon Jones and the Dap Kings that is one of my favorite kind of modern soul bands, although Sharon died, you know, I think about a decade ago or so now. So not that modern, but modern. Back when I started listening to stuff, it's called Holiday Soul Party. It's phenomenal or it's a holiday soul party. Excuse me. It's phenomenal album. It opens with a tribute to Hanukkah which I highly recommend. So you know it's all multi denominational. We got that worked in, but a lot of really, really interesting takes on old standbys, a lot of originals. It's really, really a great album. I really enjoy it. I've been listening to it as I break into the holiday music this season. So check that out for your next holiday party if you're looking for some uptempo interesting music to listen to. Natalie, bring us home. What do you have for us this week?
- [90:18]
D
Well, I got all riled up and angry about things as I was getting ready for our discussion today and it made me want to flag for people a really important resource that we have been working on here, which may sound distant from our topic, but I think is actually a really, really important extension of all of these questions we have about the use of the military and what ways the military can and should and is able to or not disobey illegal orders. And that is understanding the situation with respect to deployments of the National National Guard, which are of course military on US soil. So we have a tracker that our colleague Lauren Voss has been moving mountains to put together because compiling this information is incredibly difficult. But it shows all sorts of useful information about how and under what authorities and where and over what periods of time the National Guard has been deployed by the administration. And it's something really, really to watch as we are thinking about the question of the military and its following or not of unlawful orders. And maybe just to lighten it up a little bit, we can also throw in the show notes one of my favorite stuffing recipes from Thanksgiving, which fortunately I made for my friendsgiving because it involves a lot of olives and my family doesn't like olives, but the friendsgiving crowd found it absolutely delightful and it's one of my favorite. So I'll leave you with that instead of my righteous indignation.
- [91:54]
A
Wonderful. We will take that carboload instead with that. That brings us to the end of this week's episode. Browse Security is of course a production of Lawfare, so be sure to Visit us@lawfairmedia.org for our show page with links to past episodes for our written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series. While you're at it, be sure to follow Lawfare on social media. Wherever you socialize your media, be sure to leave a rating or review wherever you might be listening, listening. And be sure to sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast, among other special benefits. For more information, visit lawfairmedia.org support our audio engineer and producer this week was Kara Schillen of Goat Rodeo, and her music, as always, was performed by Sophia Yan and we were once again edited by the aforementioned Kara Shillin of Goat Rodeo. On behalf of my guests Eric, Ben and Natalie, I am Scott R. Andersen. We will talk to you next week. Until then, goodbye.
- [92:52]
G
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