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Distributor shopping is hard, right? But I found a better way Stitch Fix Online Personal styling makes it easy. I just give my stylist my size, style and budget preferences. I order boxes when I want and how I want. No subscription required. And he sends just for me pieces plus outfit recommendations and styling tips. I keep what works and send back the rest. It's so easy. Make style easy. Get started today@stitchfix.com Spotify that's stitchfix.com Spotify. Welcome to a special topical episode of Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important topics of the day. I'm Harry Littman. We've spent much of the year exploring the impact of of Trump's authoritarian agenda on the Department of Justice. But there's been a similar and largely overlooked story of degradation playing out in the Department of Defense, which is many times as large and certainly no less vital as the doj. Revelations about deadly US Airstrikes in the Caribbean are casting a stark light on the dubious legal underpinnings of Trump's military misadventures. And the administration keeps shifting its story about the most worrying episode, a so called double tap strike that killed two survivors of an earlier US Attack. A probing investigation by Congress could well reveal shameful illegal conduct and lead to severe political and legal penalties for the responsible officials. More generally, Pete Hegseth's cowboyish stewardship of the Defense Department and his slavish dedication to Trump's policy priorities have roiled the Pentagon, stripping away honor and integrity in favor of a culture of sycophancy and unquestioning obedience. As with the doj, the decay may be exceptionally difficult to reverse. To unpack the double tap strike, the broader US Mission in the Caribbean, and the overall state of the Department of Defense under Trump and Hegseth, we turn to a spectacular group of military and national security experts. And they are Natasha Bertrand. Natasha covers national security for CNN she was part of the CNN team that won an Emmy for coverage of Russia's invasion of Ukraine, which where she was reporting on the ground. And she's at least a past talking Fed stalwart who's been a guest a lot less with her new beat. So great to welcome you back, Natasha.
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A
Thanks for having me.
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B
Alex Horton, a national security reporter for the Washington Post, focused on the US Military. He previously served in Iraq as an army infantryman. He has shared in three Pulitzer Prizes, most recently in 2025. And Alex, thank you for your service and thank you for joining Talking Feds.
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C
Appreciate it, Harry, thanks for having me.
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B
And Major General Steven J. Leper, who has given us leave to call him Steve. So we're not being disrespectful to the military, but he served in the Air Force for 35 years, finishing with a term as the service's second highest ranking uniformed lawyer. It's deputy Judge Advocate General. After retiring, he led the association of Military Banks of America for nearly a decade. He now contributes his analysis on Law of War questions for outlets including PBS and just Security General effort. Thank you for your service and thanks so much for joining this discussion.
- [04:28]
D
Thank you.
- [04:29]
B
All right, so there's so many aspects to the story of the strikes in the Caribbean. But let's zero in first on the most controversial, the so called double tap strike in the first operation on September 2nd. Alex, you and your colleagues at the Post broke the story. For any listener who hasn't followed this so closely, what do we know in broad strokes about just what happened that day?
- [04:57]
C
Sure. I also want to start that, you know, Natasha had a story that followed very soon after it. So it was clear that she had a good amount of details that we.
- [05:04]
B
Were, Jason, we used to call her Scoop, honestly on Talking Feds because it was always, it was always she. But anyway, go ahead.
- [05:11]
C
Yeah, she makes us shake her fist a lot at stories she gets. So yeah, you know, what we uncovered in that reporting was, you know, this was the very first boat strike that the US Military carried out in Latin America. We know now what we knew then, which is this is a special operations led mission, has been for some time. So in this particular one, there was, there was rehearsals, there was a strike package that was put together of some amount of time and the order that came down from the Trump White House administration that said these are groups that you can target with with lethal force. They say that these guys were at least affiliated with one of them. So Defense Secretary Pete Hegseth as the target engagement authority, so he's responsible for all of the conduct that happens on this strike. He ordered that the mission under three objectives, which is kill everyone on the boat, destroy the drugs, and destroy the vessel. So when they launched a guided bomb to hit that boat, there were 11 people on it, they later assessed, and nine of them were killed. After some time, the smoke cleared. They saw that there were two survivors clinging to the wreckage, trying to get back into the boat. And over about half an hour to 40 minutes, the people inside the ops room at Fort Bragg, including the Joint Special Operations commander, Admiral Frank Bradley, assessed whether they were shipwrecked or not. Because if they were shipwrecked by international law, they would not be able to be targeted again. So we know from our follow on reporting that he turned to his judge advocate. His attorney in the room had a discussion about whether these two guys constituted being shipwrecked. We don't know the nature of the back and forth. We know that that attorney provided their assessment of what shipwreck meant. And then afterward, Admiral Bradley decided they were not shipwrecked, that they were still viable and legal targets in order to second follow on strike to kill them both in the water.
- [07:10]
B
Got it. And so maybe they were asking the right question, although we reserve for the moment the whole legal underpinnings of the mission itself. But looking down, we know that in dark discussions, not under oath with the Intelligence Committee, Admiral Bradley has said that he thought it was justified.
- [07:31]
C
It's important to look, to say that they're looking at all of these things and all the evidence and all the behavior of the crew through the lens of them being combatants. Whether the guys understood they were combatants is very unlikely. You know, this was the first strike, right? I would say almost 100% certain. They had no idea they were being watched at the moment. So they didn't know their behavior was being scrutinized second to second. So when it comes to being shipwrecked, we are talking about a military standard when it comes to combatants, not, for example, mariners who are clinging to records.
- [08:03]
B
After a shipwreck or even garden variety, whatever that means, drug peddlers. So, yeah, we have many levels of foundation. And one, maybe the bottom, is this notion that they are somehow the equivalent of people, people who are making war on us and the like. But, Steve, if I can turn to you, Alex mentioned there's a JAG in the room with Bradley at the time. It seems like Kegseth was maybe in and out during these 40 minutes. We've known that there's A memo from the Office of Legal Counsel at the Department of Justice that apparently blesses the operation generally. But I'll just say, as a DOJ veteran, I highly doubt it would cover what this situation, the double tap strike, not to mention it had not even been published yet. It was three days until it would come out. So as you envision the scenario that Alex sketched out, what would have been happening in terms of legal advice in the room within the chain of command.
- [09:03]
D
First of all, there would have to be an overarching assumption that the Office of Legal Counsel's opinion was correct and that the first strike was in fact lawful. Assuming that then what you're in right now is a non international armed conflict where you have a state that is basically doing battle with a non state actor. So under those circumstances, what you would have is an operations center. You'd have the commander, the commander's staff, basically all of the folks who are serving as advisors to the commander, all watching the same picture. They're watching whatever video is being used to target. They're able to watch whatever video is being used to surveil the situation after the missiles are launched. And presumably everyone would have seen the same thing. Having said that, the folks around the room would then be responsible for providing the commander advice based upon the questions he asks. And in this particular case, obviously, once the fire subsided and the smoke cleared and they could see the boat again and they saw two survivors hanging on, the question would have been, are these two survivors still lawful targets?
- [10:17]
B
And that's again, they're being lawful only if that initial assumption from OLC is accurate. So this brings up the video, Natasha. The administration continues to withhold it, I think proffering reasons of national security, even as the Secretary of War, as he calls himself, triumphantly releases all the other airstrike videos. But there is this small set of congressional leaders that have seen the footage, and you and your colleagues have talked to them. What did they describe to you? That we would see if the video were released.
- [10:55]
A
Yeah. And I should note that to date, we've gotten no credible explanation from anyone, including defense officials, for why this video can't be released. We were told actually that during a briefing, Admiral Bradley actually told lawmakers privately that there's no reason why they couldn't edit this video and release it in a redacted way so that people can understand the full context of it, even if they wanted to conceal certain sources.
- [11:25]
B
Certain methods, as did the President at first. Right, right.
- [11:29]
A
So there's still no reasonable explanation for why they can't release the video, even if it's slightly edited. When it comes to what the video shows, it apparently shows, as we saw the President and Secretary Hegseth release. The first part of the video is, of course, from very, very high up. You can kind of see from a bird's eye view the vessel and it being struck. But then there's another view of it after the first strike that is much closer up. I mean, it looks like it's about 50ft above the boat. Like it's very, very close. It's very zoomed in. And what we're told is that exactly as Alex had reported, it shows them clinging to one portion of the vessel because it apparently had been split in half by the first strike. At one point, it shows them waving. It's unclear what that actually meant. There was some discussion apparently at the time internally in that operations section center, what it signified. Were they waving for help? Were they waving for some kind of backup? Was it a sign of surrender? And they were shirtless at one point. So they weren't concealing any kind of weapons. They weren't concealing any kind of radios. There were no radios. There was no communication devices that they were using, which undercuts another argument that the administration had made for months, frankly, behind closed doors to congressional staffers that perhaps this was justified because they were radioing for backup from a nearby vessel. There was no nearby vessel, as it turns out. So really, all of the arguments the administration had made for these individuals potentially posing an imminent threat, whether to the United states or to U.S. forces nearby, which, again, there weren't any at that point, really were undercut by what the video shows, which is why likely they're not actually releasing it. And we should note also that this ship, this vessel actually wasn't even headed towards the United States at the time time it was headed towards another vessel that it was going to link up with that was actually itself going to turn around and go to Suriname, which is south of Venezuela. So again, a lot of the administration's argument is saying, look, the President has the authority to do this because he can act in the national interest to protect from an imminent threat from hostile forces, whatever. But from that very first strike onwards, there have been serious questions about whether that's actually true.
- [13:41]
C
And I want to interject, I'm working on another story too, and I just got a comment from the Pentagon. They have said, and I'm quoting Pentagon official here, we have consistently said that our intelligence did indeed confirm these boats were trafficking narcotics destined for America destined for America being the key word here. And we know even from the very first strike that these drugs were ultimately bound for another country, that instead of even heading north, you know, amorphously towards the United States, that they're instead heading in the opposite direction. So I think it's important to note what Tasha said, too, is like, as we get further and further in reporting and more details come out, the goalposts have sort of shifted to the justifications. First they talked about, you know, and I think some media inaccurately reported that these guys were trying to. They were trying to, in effect, radioing for help. And it turns out they didn't have that equipment. They didn't even assess at the time that they had the ability before the second strike occurred. So there's these evolutions in how the administration has explained what they are doing and all the evidence that they have gathered to make that holistic decision to strike a second time, including what Bradley said to lawmakers, which was he was looking for signs of surrender to include the universal hands up or waving some sort of cloth, perhaps to give a nonverbal international symbol for I give up. And again, I keep on coming back to the idea that if the US Decided these people are in armed conflict and they are, in effect, soldiers or terrorists or insurgents, whatever the administration wants to call them, it doesn't seem clear that the people being targeted know that, and how would they have this sort of training or instinct to signal anything?
- [15:28]
D
And I thought I saw a reporting that suggested that the US didn't announce the strikes until after the first one. So nobody on those vessels would have known that we were targeting them, let alone that they were targets.
- [15:41]
A
Yeah, and the OLC opinion hadn't even been put on paper yet.
- [15:45]
B
That's right. So I just want to add that not simply the facts, but the actual legal justification from. Is it fentanyl? Is it cocaine? Is it. Regime change, as we understand most recently, has shifted. And that, I just want to add as a lawyer, has huge implications for the legal justification for doing it in the first place. But this has become a kind of Rorschach test. There are a few Republicans and Hegseth himself who have very brassily announced nothing here. Everything's fine.
- [16:20]
D
It's.
- [16:20]
B
It does seem to depend on some crazy ass that's talking Fed speak narrative of like, well, maybe they would right the boat and there were drugs there and, I don't know, paddle to the United States and deliver them. And then we still have the problem of whether this is the equivalent of A non international armed conflict. But at least the Dems that I've heard have made it sound really grotesque. And you have some Republican senators and Hegseth himself pronouncing themselves very unperturbe. What is the apparent view, if you know, of the people who think no problem here?
- [16:58]
A
Well, I think that, I mean, their argument is we're attacking drug traffickers who are bringing drugs into the United States that kill tens of thousands of Americans or as President Trump says, hundreds of thousands of Americans per year. The problem is though, that none of these Republicans are ever really confronted with the fact that these boats, in the cases where they actually are headed to the United States, where it's not clear that all of them actually are at the time that they're struck, they're carrying cocaine, they're not carrying fentanyl. And fentanyl, of course, is a huge, huge problem and it does kill thousands and thousands of Americans every year. But that's. It seems like what we're seeing from the Republicans anyway is a conflation of that threat with the threat that the President and the Trump administration are trying to convey, which is the drug problem. But these are low level drug traffickers, many of whom are not even members necessarily of the cartels that the Trump administration has said that they're authorized to go after because they're foreign terrorist organizations. The most that these officials at the Defense Department actually have to prove before they hit these boats is that they are in some way affiliated with these cartels and these criminal organizations. And in fact, they've acknowledged two Republicans and Democrats in closed door briefings, but they don't necessarily even know the individual identities of everyone on board before they hit these boats. So I think that until we get actual proof from the administration about what these boats are carrying, they still have not released proof and who they're actually killing. Then it's really hard to say, look, we're putting serious dent in the problem of drug trafficking into the United States because right now all it seems like it is is a pressure tactic on Maduro, the Venezuelan president, and, and kind of throwing around the weight of the US Military in the Caribbean in a way that will potentially maybe in the future force him to step aside, as the White House Chief of Staff acknowledged is the real reason for these boat strikes.
- [18:53]
B
Now comes the real problem. And I wanted to turn to you, Steve, just opening up the overall mission. The basis seems to be the OLC memo that was published later. And Senator Mark Kelly has seen that drug trafficking groups or ragtag individual boats that we call narco terrorists are a threat to the United States, akin to a foreign nation attempting to invade or say a non nation like Al Qaeda making war on us. So what is your opinion? I know you've mentioned jags are sort of there to go with OLC and take it from there, but the overall grounding that what we're really doing is fighting drug importation in the U.S. what's your thought about whether that triggers the law of war?
- [19:44]
D
Well, as you said, the only way that the law of war would be implicated here is if we are in some kind of armed conflict, whether it's non international or international. And it's certainly not international, at least not yet, because there's no state that we are, you know, arraying our forces against. And so at most it would be non international armed conflict. And even there, the analysis fails because the key part of that is armed. This is not an armed conflict. These are not boats that are armed that pose a physical threat to the United States or any of its citizens. They do carry drugs. And you know, lest I be thought of as somebody who's trying to justify drugs coming to the United States, I'm not. But there are ways in which we have dealt with them before and should continue to deal with them, and that is through law enforcement. Just to give what Natasha said a little bit more context when she talked about, you know, these being low level participants on these boats bringing these drugs to our shores, there is so much of a cognitive dissonance here because on the one hand, we are shooting missiles at these people. We're trying to kill them on these boats. We're, we kill two survivors in the first strike. Yet if they are captured through the parallel law enforcement operations that are still going on in the Caribbean, if they were captured, the Department of Justice has already said they're not going to prosecute these people. So if they're not worthy of being prosecuted, why are they worthy of being killed? Americans should understand that context. But going back to the question of being an armed conflict of any flavor, it just isn't. And so when it comes to applying the law here, really what we should be applying is domestic US Law and international law that governs maritime issues like the law of the sea. And when you apply those laws to these facts, these boats that are coming to wherever filled with drugs, targeting them with lethal force is basically murder. I mean, that's the long and short of it. It's murder. And so when you look at the first strikes, we have said, we being my colleagues and I who have served as judge advocates in the military view this as essentially non judicial killing. And even if you assume then that the, that there is a non international armed conflict, that the Office of Legal Counsel opinion somehow gives the military the authority to target these boats in first case, certainly the double strike on 2 September was illegal. Because even if you consider that non international armed conflict, the laws of war apply, these were survivors, these were shipwrecked survivors. Because it doesn't matter how they became shipwrecked, it doesn't matter if they ran into a rock in the middle of the Caribbean, it doesn't matter if they were shot by a couple of missiles, they are still shipwrecked. And under non international armed conflict, there are parts of the Geneva Conventions that apply. The ones in particular governing shipwrecked survivors applies in this case.
- [22:59]
B
Am I right? The DoD manual has an actual specification of. Exactly. This is the paradigm, yes.
- [23:06]
D
So the lawyer in the operations center providing the advice of the commander would have the Law of war manual in front of him or her. The Law of War manual synthesizes all of the domestic and international law that applies to military operations. And as you said, Harry, there is a specific example in that law of war manual that uses shipwrecked survivors, targeted survivors, as shifting from targets to people that we are supposed to protect. And that's the dynamic that we quite frankly haven't heard enough about in all of the reporting about these briefings over on the Hill. And as the senators and representatives come out of those briefings and they say they're satisfied, I'm not sure exactly what they're satisfied with. Is it that the law doesn't apply? Is it that these people weren't shipwrecked? Is it that they would be willing for us service members who are floating in a raft and in the middle of the Caribbean having been shot down out of the air, to be targeted by someone in the same position we are. And that's always a consideration that I as a JAG would think about when I advised my commander about whether the law applied and what the law said. How would we feel if the shoe were on the other foot, if we were the ones being targeted? When the radio fact arose, I pointed out that to a number of folks that when an aircraft is shot down, the pilot actually ditches with a life raft and a radio. And if we consider that to be sufficient to warrant targeting that downed airman, then we've got a lot of problems.
- [24:51]
C
In the future if we're taking the set of facts as DoD and the White House have presented. If you're looking at the reasons and justifications, there's a lot of linguistic and verbal gymnastics at play. Steve, you rightly pointed out that the issue of having a weapon or not and the way the OLCI opinion is written and other justifications are the drugs are analogous to a rifle or an IED or a bomb, and therefore they are the weapon that's being used on Americans. Right. And that is the thing that makes them an armed combatant. What Admiral Bradley said he believed that there were drugs still on that remains of the vessel underneath. And people familiar with how he briefed and his sort of rationale said maybe that piece of boat was still floating because the drugs were still buoyant. But when we talk about what's permissible in combat, we refer to that as positive identification. Do they have a weapon or not, and can you see it? And if you can see it and them using it, then that becomes grounds for your ability to fire on them. But in Bradley's own telling, he wasn't completely sure that the drugs, AKA the weapon to him, was even there in the first place. And that's what led to the second strike, is his belief that the weapon, in this case, the drugs, was still there. So even when you apply the framing and the justification in this way, there's really a stretching in terms of how the military even operates in combat with an armed group like ISIS or Al Qaeda.
- [26:20]
D
It's a slippery slope if you consider drugs to be weapons, because what's the next weapon? What's the next contraband that can hurt Americans? Or what's the next machine or whatever that can hurt Americans? That's not. That is incapable of providing the same physical effect that you can in warfare.
- [26:36]
B
And it can't be the fact of harm itself. That is what the criminal law is about. They have tried to say there are 24 groups and somehow the drugs are being used to fight, fund certain political activities. It all seems pretty tenuous. And I just want to make a couple quick lawyer points. First, your views are very much of a piece with the legal communities. Sound. Just cite two people quite respected and conservative circles. Jack Goldsmith, the former head of olc, and John Yoo, the actual author of the torture memos, has said, no, this is law enforcement. And I just want to contrast law enforcement. So Trump recently pardoned the former president of Honduras who was importing hundreds of tons of cocaine into the country. But what happened there? You have an extradition treaty, you extradite that person, you make charges, you prove them beyond a reasonable doubt, a jury fines them and the like. That is the notion of doing kind of law enforcement for those sorts of injuries. And whereas here from the initial facts, are these narco terrorists, whatever that is, are the drugs going to the US Or Suriname, is it a reasonable probability that they're affiliated? Which is all it has to be. All of those are not only tenuous, but something one just takes now on faith from the administration and is shielded from view. If the NIAC analogy holds, it's, I think, as you said, an extrajudicial killing. If it doesn't, it's simple murder. How does that work? How does the military chain of command and criminal justice system handle simple murder, as you put it, you know, outside a military campaign?
- [28:25]
D
Well, that's a great question. And you know, the OLC memo, let's assume that it's correct, that it does provide legitimacy for the first strikes. In that case, the first strikes would be subject to what we call a combatant's privilege, where the combatant would not be held criminally responsible for that first strike. But when you get to the second strike, you've stretched the band until it broke. You now are in a situation where the OLC put us. If the OLC says this is armed conflict, then it's armed conflict. The laws of war apply. And if the laws of war apply, they're clear that second strike was murder. And what would happen in the military is, you know, everyone is familiar with a war crime being committed by the person who pulls the trigger. That's the typical scenario that people think about when they think of war crimes like the My Lai case, like Abu Ghraib. It's the person on the ground being ordered by their platoon commander there on the scene to do something in violation of the law.
- [29:33]
E
And.
- [29:33]
D
And under those circumstances, you know, the trigger puller would be responsible. The folks at Abu Ghraib who inflicted harm on their prisoners would be held accountable. What this situation presents us is a very, very different situation where you've got very senior people who are issuing these orders. You've basically got the national command authority, the president and the Secretary of defense issuing these orders. And in between them and the young sailor or the young private, you've got folks with lots of stars in between. And it's those senior military officers who could also be held accountable for receiving the order if it did come from Hegseth, or for transmitting the order, giving the order if it was Bradley did it on his own down the chain.
- [30:22]
B
Accountable means court martial.
- [30:25]
D
Accountable means court martial. So for the military folks, it would be under the Uniform Code of Military justice, and it would be murder under the Uniform Code of Military justice for civilians if it were later found out that despite what Hegseth said, he's the guy who gave the order or circumstances were such that he created the conditions for the order to be understood the way it was executed, he could be held accountable under the civilian system under 18 US code.
- [30:51]
A
I think that what we're seeing now is a military and administration, especially with Secretary Hegseth and his past penchant for, I won't say war criminals. But he has, of course, advocated for many people who are accused of war crimes. He has argued that they should be given the benefit of the doubt. He has urged President Trump to pardon people who have been convicted of or charged with war crimes wholesale. This he has repeated that he does not believe that the military should be bound by stupid rules of engagement. That's a direct quote. So this is not necessarily a Pentagon that would move to discipline anyone who is involved in this, even though that possibility is definitely open for future administrations. But I think also the mixed messaging that we're seeing from the top of the military, I mean, we just reported last week that the chairman of the Joint Chiefs, his lawyer, the Joint Staff, his personal legal counsel, wrote a memo saying that if you are issued in a legal order and you feel that it is illegal, then you should simply consider retiring. And, you know, I think that that has rubbed a lot of people the wrong way just in terms of, you know, current former officials that we spoke to saying if that's how you respond to an illegal order or if that's how you're being advised to respond to a legal order, if you're a commander, if you're a senior officer, then what kind of message does that send? And doesn't that just leave the illegal order intact for someone lower in the chain of command? And, you know, so I just think that the messaging coming out from the senior most officials in the military is that this is not, this is not a problem.
- [32:27]
B
And just to make clear. Yeah. The retirement is to take away the idea of a principled resignation. You have to keep it buttoned up.
- [32:35]
A
Don't pick a fight. Yeah.
- [32:37]
B
And I want to move very much to the state of play of the department overall. But just one final question. We've referred over the course of discussion to the shifting underpinnings and reasons. Susie Wiles saying Trump, Trump just wants to go at him until he cries uncle. This would be Maduro and indications that Hegseth, who had had a few controversies, wants to please Stephen Miller. I just wanted to get your sense of how do we even get here in the first place? What are we trying to do? Why is Trump inviting this? What do we know now about the actual origins of this whole airstrike mission?
- [33:18]
A
Well, this dates back to the first Trump administration, when they were really intent upon getting rid of Maduro even at that point. And they were, you know, courting opposition figures, and they were trying to come up with ways to either get him to step down or to intervene militarily to get him to do that. And the whole thing kind of fizzled. But it was always kind of a fixation for Trump won. And now we see it coming back with, you know, support from very, very strong support from Marco Rubio, who is very, very closely tied into the Florida political contingent. And so I think that, yes, a lot of this is political. We have seen President Trump shift his explanations multiple times for why he actually wants to do these operations around southcom. But this is not new for this administration. This is something President Trump has been really focused on for years and years.
- [34:08]
C
Yeah. And there's also a Venn diagram moment. You know, we reported recently that at the beginning of the administration with Venezuela and Maduro in the back of their minds, the administration wanted to very early on get some early political wins and go after drug traffickers and drug cartels. And in the first administration, they had this idea to either conduct strikes in Mexico or send in ground forces to take on cartels. And they wanted to do that this time. But once, once the Mexican authorities and officials that got on board with more stringent operations and more cooperation, they realized that if we struck inside Mexico with all this sort of positive movement, perhaps that would kind of upset this apple cart we got going with the Mexicans. Maybe this is. We don't want to ruin a good time here. So, in essence, they went venue shopping for where would they go next? Where can we take this war on drugs?
- [34:59]
B
All dressed up and no place to go, Right?
- [35:01]
C
Yeah. You know, if we want to take this war on drugs in a box and we can't go to Mexico, where do we go? And. And this Venn diagram started to materialize with Stephen Miller and other people like Marco Rubio, where he said, okay, well, Maduro, we've already sort of said he's trafficking drugs in the past. They had that bounty for him during the first Trump administration. So there's drugs there. We don't like Maduro and We want to go somewhere. So I think that played a large role in how we ended up in the Caribbean and targeting Venezuela in the first place. As Natasha mentioned before, they're not a major drug player. Fentanyl doesn't come from there. But then you have this drug paradigm with these operations. And that's how this sort of, this case was built from the start.
- [35:43]
D
But Harry, none of this could have been possible had Trump and Hegseth not removed the guardrails around the military the way he did. These boat strikes are just one milestone on what I call a road to unlawfulness that Hegseth started when he fired the judge advocates general when he announced he was doing it because he didn't think the law or lawyers should constrain military operations. And you can see from that point, February onward, you have the boat strikes, which is basically an unlawful operation. You had posting troops on streets of US Cities, arguably illegal violation of the Posse Comitatus Act. You've got jags being detailed to serve as immigration judges. Who knows where this road leads from here. Hegseth set the conditions. Even if he didn't issue the order for the second strike, he has set the conditions by which commanders below him understand that the law is interesting, is there, but it's not necessarily something we have to follow. And we get to situations like the second strike when you basically take the guardrails off of the military.
- [36:58]
B
I'm so glad you made this point. It's exactly where I wanted to go, the broader point within DoD, because we focused a lot, I certainly have, at talking feds about the terrible degradations at the Department of Justice and what's going on. But we have a parallel situation, arguably that's what I wanted to explore. And the DOD is what, you know, 20 times as big and as crucial. So, Natasha, current JAG told you and your colleagues the rule of law at DOD has been under attack since day one of this administration. So I could give you the six points of the indictment against the administration in doj. What does it look like in dod? What, what's happening there that seems so corrosive to so many people?
- [37:49]
A
Yeah, well, I think the original sin that a lot of folks point to was the firing of the T jags in February. The top Judge Advocate General officers for the services, for the army and the Air Force, anyway. And that was really a shot across the bow about how Secretary Hegseth wanted to treat the JAG Corps at large, how he viewed it. He made very clear very early on that he wanted to remake the JAG Corps, something that his personal lawyer, Tim Parlator, was also supposed to be very much involved in from day one. You know, it's not clear how much they've actually been able to do that and how much progress they've made on that. There do seem to be some guardrails in place around that. But at the same time, you know, the message that was sent very early on is we want people who are here who agree with our policies, who aren't going to rock the boat. And, you know, in our reporting, one of the reasons why the top jack for the Army, General Berger, was amongst those who was fired very early on, because he was raising questions in the beginning weeks of the administration about whether it was wise to detail soldiers to help with the border mission down in Texas. Questions that he was told to stay out of because it was a state issue. You know, there were a lot of questions about whether they were pursuing DEI policies that were incompatible with, you know, what the administration was looking to do. So it was just very much a signal to a lot of kind of rake and file jags that. That this was kind of dissent, and these kind of questions really wasn't going to be tolerated. And that's the message that we got when we spoke to current and former jags as well, is that they feel afraid to speak out in a lot of instances and to give their impartial, candid legal advice because they're very worried about losing their jobs. And one told me, no one wants to rock the boat right now because they see, you know, how easy it is to get fired or to get sidelined at this point. And so I think it creates a culture where, you know, you're kind of seeing a silencing effect and a chilling effect writ large. And that's kind of what we were trying to get across in our piece. And it really started from that very moment, from that move that Hegseth made, really, in his first, like, week as secretary.
- [39:59]
C
And it absolutely does trickle down. I think Tasha and I have spoken to jags, you know, within operational units. So it's like they're not the ones who are, you know, at the Pentagon, you know, wearing the brass and the shoulders are the ones right there, working with the commanders hand in glove to go over these things. And what we've heard, just like the culture and like, the. The pressure of that job is to, like, you know, you have to give straight down the middle legal advice, like. But in this sort of operational environment, especially in special operations and when it's a Mission handing down from Trump and the Secretary himself. You know, when you're in that role and the whole room looks to you of saying, is this a legal and lawful decision? And you know what the President's going to say. You know how Hexith is going to react.
- [40:46]
A
You don't want to contradict the commander in chief. Right?
- [40:49]
D
Yeah.
- [40:49]
C
It's everyone spins around in their chair, what are you supposed to do there? You know, what kind of pressure is already inherent in that job to be like the legal ego being like, oh, actually you can't do this and that everyone expects you to go along for the ride.
- [41:03]
B
And the couple people haven't. It's not just been quicksonic, they're out. Hegseth fires them for that reason. Right?
- [41:10]
C
That's right. It's not like these things are just completely out of the mind of all the people making these decisions. And that goes for Admiral Bradley too. You know, I think certain people will tell you he's just going to make the decision that he's supposed to make without the constraints of thinking how his chain of command will interpret it. I don't find that argument very plausible. Part of his decision making is understanding commander's intent. And for the commander to make his intent is very clear that he wants to make these strikes and he wants to have a gloves off approach.
- [41:40]
D
The question the commander has now is, do I listen to my senior commander or do I listen to my lawyer? And those could be two very, very different answers. And as JAGs say, you know, JAGs advise, commanders decide. But the same message that was sent to jags in February when the T. Jags were fired was also sent to commanders. Remember the Chairman of the Joint Chiefs of Staff, Chief of Naval Operations, Vice Chief of Staff of the Air Force were all fired in the same day. And the message that was received is, I believe the message that was communicated. You listen to me, not these damn.
- [42:14]
B
Lawyers, or you are out. Yeah. And I mean, obviously the whole legal advice function is terribly compromised. We focused a lot at DOJ about how this is wearing with regular career professionals. What do these conflicts at the top portend or provide for morale of sort of low level person who maybe has to push the button in the airstrikes or just more generally, is there a sort of morale crisis? Do we know?
- [42:45]
A
I mean, I think it's hard to say because the JAG Corps obviously is huge.
- [42:48]
B
Yeah. Oh, how big is the JAG Corps.
- [42:50]
D
In the air force? About 1600. So you multiply that by three and a half.
- [42:55]
B
Okay. I can do that?
- [42:56]
A
Yeah. I mean, there are thousands. And so it's hard to characterize broadly how everyone's feeling. But, you know, I think that it's not just the jags that deal with the big operational decisions that are there advising the commanders every day. Obviously, there are jags at every level. There are jags in the Pentagon. They're, you know, all over at bases across the United States, around the world. But to give you an example, one piece of reporting that we had in our story about this was the visit that President Trump had made to Fort Bragg over the summer that turned into a very, very political kind of campaign rally. And prior to him, visiting lawyers at Bragg had advised very strongly to make it very clear to soldiers there that they should not engage in any kind of political behavior, that there should be no merchandise sold, for example, Trump merchandise sold there when he visits, that they should remain as apolitical as they can be. And, you know, lo and behold, they very much felt like their advice was ignored, because obviously that turned into kind of a political circus. And so that definitely dampened morale to the point where, like, they felt like they weren't being listened to. And, you know, I think that when it comes to jags at varying levels, even overseas, you know, they feel like they're under a lot of pressure to kind of fall in line. So, I think, anecdotally, anyway, we've definitely seen some. Some dampening of morale across the force in that category.
- [44:22]
D
Let me add one thing. You know, we have a very unusual situation right now in that we have a secretary of defense who believes he's wearing a uniform. He is operating like a military commander, not a senior civilian. The military gets civilian authority. We have had a civilian in charge of the military since we were founded. We get that. But civilians need to act like civilians. And in this particular case, we have a secretary who potentially compromised, could have potentially compromised airstrikes over Yemen and put pilots at risk. We have a secretary who got up in front of all of the senior admirals, generals and senior enlisted at Quantico, talking about the warrior ethic and leaving out probably the most important aspect of the warrior ethic, and that's honor. If you do a word search of his transcript, he doesn't mention the word honor once. And then lastly, the third strike against him, in my view, is basically throwing Admiral Bradley under the bus when he is the Target Engagement Authority said he left the room after the first strike. And this is all on Admiral Bradley. If you're going to be a leader, you need to be a leader. And I think part of the morale problem right now in the military is that we've got a leader who's not exercising leadership.
- [45:50]
B
All right, it is now time for a spirited debate brought to you by our sponsor, Total Wine and more. Each episode you'll be hearing an expert talk about the pros and cons of a particular issue in the world of wine, spirit and beverages.
- [46:08]
D
Thanks, Harry.
- [46:09]
E
In today's spirited debate, we start with two of our absolute favorite things, dessert and wine, and combine them into one. Delicious dessert wines. What are they exactly and how are they made? Grab a fork and a glass and let's dig into the sweet subject matter. Dessert wines are just as you'd hope they'd be. So sweet wines that are typically served after a meal. Sometimes they're served with a dessert and sometimes they're served as dessert. And then there are those times in between. The smoothness and lack of acidity make for a pleasant and easygoing taste that pairs perfectly with relaxation. I reach for dessert wines when I'm craving something sweet to enjoy while unwinding in the evening or after a big meal. To make a sweet dessert wine. The fermentation process is halted just prior to the yeast converting all the sugar to alcohol. Interrupting the fermentation ensures that there is sugar remaining in the wine, which gives us that sweetness we crave. But the amount of sweetness varies from wine to wine and there's no shortage of options. Just pop into Total Wine and more and you'll see many, many varieties from ports to ice wines to Sauterne and to Hungarian Tokaj. Dessert wines come in both still and sparkling too. They're also made from both red and white grapes and they can be served chilled in a small glass or room temperature, proving that really when it comes to dessert wines, anything goes. Hungry, thirsty? Maybe a little of both. Stop into your local Total Wine to check out our large selection of dessert wines and feel free to chat with a helpful guide for a recommendation. Cheers.
- [47:32]
B
Thanks to our friends at Total Wine and More for today's a spirited debate. And here I know the least in the room, but I just want to add as just an observer, I mean, there are very, very good reasons that we could go into about why you want civilian leadership and not military leadership for the military, but the kind of civilian leader we have, the sort of tattoos, cowboyish, chest beating face of the leadership military, I think really aggravates things quite a bit. Okay, let's finish up with a little discussion of something we thought about a lot with the Department of Justice again. So one day Pete Hegseth won't be in charge. That day actually could come kind of soon. But when it comes time to actually try to undo the damage, culturally, legally, in personnel, how big a task awaits and is it even doable? There's been a lot of serious discussion about whether DOJ can ever be put right. What do you see in the future for what would be needed to return the sense of honor, law abidingness, et cetera, to a military post?
- [48:50]
D
Trump Hegseth well, in my view, you've got to return honor to the military. You've got to allow military members who are being given orders to kill people who are survivors, the ability to say no. And that kind of climate only comes when the person at the top acknowledges that unlawful orders should be disobeyed. Right now, there is not that acknowledgment. And until those guardrails are reconstructed and until we can reverse course on this road toward lawlessness, we're not going to be able to recover from the damage that's been done, in my view.
- [49:27]
C
I think there's a lot at play here because the people making the decisions to or doing the actions right of carrying out the orders, from the person pushing the button on the drone strike to firing on a target, their commander tells them. The whole entire structure of all of this, from the president on down, is the confidence in the belief that everything you are told to do is lawful by definition, because it is someone in the United States military telling you to do it, and based on our values and our standards and our professionalism within the armed forces, going back since the beginning, which is imperfectly executed over the last two centuries plus, going from heroism in combat to war crimes throughout history and atrocities, in certain moments, everything is presumed to be okay when you are told to do it. By the time you are the E4 pulling the trigger or the O6 saying you need to attack that target. So everything is built on that confidence in the system. And if that is disrupted in a foundational way, that does have ramifications in small ways and in big ways, as Steve alluded to. You know, if this tit for tat happens in the Pacific Ocean with the Chinese and they are killing shipwrecked people, and, you know, does the United States do that too? Does it have this cycle of degradation? I talked to a jack who said re attacks like this are hard on people who have to carry them out. They said, you know, when someone gets attacked, it's a very different feeling than when you hit an ISIS guy with a rifle in the middle of the desert and, and his, his arm is blown off, but he's still trying to call for help and you're going to call for him again, it's a different feeling when you go ahead and hit him again. And that wears on people. So you want to be able to make those decisions, you want to be able to sleep at night, and you want to have confidence in the system. And I think that's a very important thing to keep all that in mind when we talk about what are the values of this organization and how should the business of killing be carried out.
- [51:24]
B
That values question is so central in doj. Okay, so final question. I think I would look to you, Natasha, if it's okay. You have obviously some members on the Hill who are wanting to just kind of, I've, I've heard enough. We don't need to go forward. And others, I think, on both sides of the aisle who. There's a lot we, we don't even have the video, we don't have the OLC memo, etc. Do you see the administration's efforts to close this off as being successful, or do you see this as having legs?
- [51:56]
A
I think that there are two aspects to that. The first is when it comes to the drug boat strikes, you know, you've already seen at least one committee controlled by Republicans that House Armed Services Committees say, we're done looking into this.
- [52:11]
B
Yeah.
- [52:12]
A
And so there's really not a lot more that Democrats can do. They can continue demanding documents from the Pentagon. They can continue demanding the video. But ultimately, you know, as Jack Reed, who's the ranking member of the Senate Armed Services Committee, has said multiple times, he has sent so many queries to the Pentagon about all of this, and they have gone virtually unanswered. And, you know, Democrats are also not happy with the briefings they've been getting. And Republicans are right. And they have the power. So I think in that respect, there may not be a lot that they can do when it comes to actually conducting land strikes in Venezuela. That might be something that the administration is a bit more sensitive to when it comes to needing congressional approval, because they see it as more of like a war in a traditional sense, or at least that's the sense that we've gotten from the White House Chief of Staff, Susie Wiles, who said it on the record to Vanity Fair. She said, if we decide to move forward with that option, then that is the time when we might need to bring Congress in. You know, You've also heard President Trump say, I would like to brief the Gang of Eight, for example, if we decide to move forward with land strikes. So if they take that step of actually conducting operations on land in Venezuela or wherever else, then maybe Congress will have more of a sway in that situation. But when it comes to just the operations that southcom is conducting in the Caribbean and eastern Pacific, it really doesn't seem like there are a lot of checks on that at all.
- [53:36]
C
Yeah. And I would say, you know, if strikes happen over land in Venezuela, on whom military targets, these suspected drug trafficking organizations, this is the thing. You know, Congress has abdicated responsibility of war making oversight since September 12, 2001. They just have completely passed it over to the executive branch and now they're trying to put the toothpaste back in the tube and they don't seem to be very successful at it. So if they say if the administration decides we're going to strike inside Venezuela, but it's not going to be a military target, it's not going to be Maduro's regime or officials, but it's going to be these traffickers in the hinterlands, then they could presumably say we don't have to go to Congress for that because we already have that authority under this OLC opinion, all these legal justifications. So, you know, I would not presume that this. Because they're going to strike in Venezuela, they're going to go to Congress hat in hand and ask for permission because it doesn't seem to have stopped them so far.
- [54:33]
A
Although there is apparently one wrinkle which is that the OLC opinion apparently is very narrowly tailored to operations at sea. So that might not give them the blanket cover they need, but if they make a new OLC opinion or edit this one, then that might give them the COVID they need.
- [54:47]
C
Yeah, I'm doing the little edit, the little edit button. You know, I just like let's go ahead and strict that out track changes. Right.
- [54:54]
D
We all have to be really cognizant of the fact that they've got some really smart lawyers working for them because they have been able to skirt posse comitatus international law in very creative ways. You know, for my part and the, and my group's part, we're trying to look forward and we're trying to anticipate based on recent events, where those dots connected. Take us. And when you're talking about fentanyl as a weapon of mass destruction, it provides a loophole for posse comitatus. When you're thinking about what's down the road where that would be important. Polling places, domestic terror organizations. I mean, you could literally see the same sort of thing that's happening in the Caribbean happen on a street corner in the United States. States. Now that we've defined fentanyl as a weapon of mass destruction. I mean, these are, these are all dots that are being connected that will, you know, if extrapolated, lead to some pretty serious consequences inside and outside the United States. And we really need to, you know, as much as we focus on here and now in the immediate past, we've got to start looking into our crystal ball because we're getting shellacked right now by some really smart lawyers who are doing some things that, you know, you really have to connect the dots to kind of figure out what their objective is.
- [56:17]
B
100%, really the indispensable point. And you it's a whole nother episode. Maybe we can do it, but the way they're blurring the line between law enforcement and the military, even here. A couple very quick legal points. Yes, OLC has some very smart lawyers, including the head person, but 36 years old and notwithstanding academic credentials, he worked to try to reverse the election. There's every indication that, like the rest of the brass in doj, he's a, you know, Trump acolyte. And also we've mentioned the AUMF in 2001 that was critical to the torture memos and congressional authority, and it was stretched quite a lot. Nobody, I think, will contend that it can stretch to the Caribbean to Venezuela. So they're going to have to make a freestanding argument without congressional authority and under the law. That's going to make it harder. Man, oh man, a really great discussion and one that I think we should be having more. I hope we will, but we're out of time for now. Alex, Natasha and Steve, thank you so much for being here. And as I say, to be continued, thank you so much, Natasha, Alex and Steve, and thank you very much, listeners for tuning in to Talking Feds all through 2025. Happy Holidays. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe to us on YouTube where we are posting full episodes and my daily takes on top legal stories. Check us out as well on substack@harrylittman.substack.com where I'll be posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law, and Talking about Feds has joined forces with the Contrarian. I'm a founding contributor to this bold new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know in trust, just now linked up with an ambitious project designed for this pivotal moment in our nation's legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Luke Cregan and Katie Upshaw, associate Becca Haveian sound Engineering by Matt McArdle, Rosie, Dawn Griffin, David Lieberman, Hamsa Mahadranathan, Emma Maynard and Hallie Necker are our contributing writers. Production assistants by Morgan Chisholm and Akshaysh Turbailu. Our editorial interns are Bridget Ryan and Troy Neville. Our music, as ever, is by the Amazing Philip Glass. Talking Feds is a production of Deledo llc. I'm Harry Littman. Talk to you later. The holidays mean more travel, more shopping, more time online and more personal info.
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