Loading summary
Transcript55 lines
- [00:00]
Natalie Orput
Nearly every News alert in 2025 has raised questions, some old, some new, about the law and national security. And now you get the chance to ask Lawfare directly. It's time for our annual Ask Us Anything Mailbag podcast, an opportunity for you to ask Lawfare this year's most burning questions. You can submit your question by leaving a voicemail at 202-643-846, or by sending a recording of yourself asking your question to askusanythinglawfairmail.com by December 16th.
- [00:38]
Aramco Advertiser
Who drives the world forward? The one with the answers, or the one asking the right questions? At Aramco, we start every day by asking how? How can innovation help deliver reliable energy to the world? How can technology help develop new materials to reshape cities? How can collaboration help us overcome the biggest challenges? To get to the answer, we first need to ask the right question. Search Aramco Powered by How Aramco is an energy and chemicals company with oil and gas production as its primary business.
- [01:10]
Quo Advertiser
Are you still running your business? With one creaky old phone system, missing calls, losing track of messages, and scrambling to keep up with your team, it's time to break up with the past and say hello to Kuo. Kuo is the number one business phone system with 4.7 stars across 3,000 reviews on G2. Quo brings all your business phone calls and texts into one app for your team. No more juggling devices or being tied to a landline. Quo's built in AI logs calls, creates summaries, automates follow ups, and can even answer and route calls so you never miss an opportunity. Whether you're a solo operator or leading a growing team, Quo keeps you connected and helps you deliver standout customer experiences. Join over 90,000 businesses using Quo and see why. It's the one business phone system for customer satisfaction. Level up your workflow with quo. Get started free plus get 20% off your first six months at quo.com tech. That's quo spelled Q U O.com tech and if you have existing numbers with another service, Quo will port them over for free. Quo no missed calls, no missed customers.
- [02:25]
Colby Vokey
The administration is calling this a non international armed conflict, thereby justifying that they're allowed to use this kind of force. I think that's faulty anyway, but you can't just declare it a non international armed conflict and it makes it so because you say so.
- [02:43]
Natalie Orput
It's the Lawfare Podcast. I'm Natalie Orput, executive editor of Lawfare, with Frank Rosenblatt, a professor at MC Law and former lieutenant colonel and judge advocate general in the U.S. army, and Colby Vokey, former lieutenant colonel and Judge Advocate General in the U.S. marine Corps.
- [03:02]
Frank Rosenblatt
For both of our careers, we were told to provide independent legal advice to our commanders. We would call them like we saw them. Sometimes lawyers wouldn't always agree on things, but we would, you know, hash things out and come to some sort of workable solution on what the legal advice in a situation is. Early in 2025, that seemingly has changed.
- [03:24]
Natalie Orput
Today we're talking about unlawful orders in the military, what obligation military personnel have to disobey, who determines what's lawful, and how. We should think about the ongoing boat strikes in the Caribbean. So I do want to start with the legal framework at issue here and really drill down on what these responsibilities are, where they come from, et cetera. And then afterwards, I'd love to speak with you about your experiences generally and your experiences working more recently on the Orders Project, which, as I understand, advises members of military on these sorts of matters. So let's start, Frank, I'll come to you first with the law. Where exactly is the duty to disobey unlawful orders that we are hearing so much about? Located?
- [04:15]
Frank Rosenblatt
If you work at Starbucks and you disobey an order there, you might get fired, but you won't be criminally prosecuted. But in the United States military, as in all national militaries, a necessity to obey orders. Otherwise it would be impossible to have a coherent, disciplined military force where people accomplish difficult tasks that often put them at great personal danger. So this is codified in the United States in the Uniform Code of Military justice, which continued the old Articles of War from before. And this has provisions on the duty to obey orders. One of the exceptions to this is, as you, Natalie, pointed out in a Lawfare article yesterday, is this duty does not apply to unlawful orders. And so this doesn't really lend itself to thinking, well, I don't think this order is right. The presumption is that orders are lawful. However, orders that you know to be unlawful or that are manifestly unlawful do not have to be obeyed. You have a duty to not obey those. And what they talk about with manifestly unlawful in the case law is that something that a person of ordinary sense and understanding would know that just can't be right.
- [05:32]
Natalie Orput
Okay. So I think that it is important to emphasize, as you said, that orders are presumptively lawful. And that is actually codified, as you said, in the ucmj, the Uniform Code of Military justice, which I'll just situate a little bit, which is to say it is really something that people need to understand about the UCMJ is it is a separate system of justice, including criminal justice, but military justice differently. It looks different and has different assumptions, as you mentioned, about rules and how they should work and the coherence of the military. There are just different logic behind a lot of these rules, and the entirety of it is set forth by statute. The UCMJ is a statute that Congress passes, but it is implemented in a number of different ways. So I do want to talk also about the other types of authorities besides the ucmj, because some of these provisions and the specifications really are implemented in regulations. And Frank, as you said, also in case law within the military justice system. Colby, talk to us about these other authorities that sort of implement the ucmj. There's been discussion about how this requirement that members of the military disobey unlawful orders, some of that comes from the Law of War Manual, some of it is in the manual for courts martial. Tell us about where else we can find this duty.
- [07:09]
Colby Vokey
Okay, so as far as a general duty to obey, the manual for court martial includes rules for court martial, the military Rules of evidence. Those will guide you on what's a lawful order, instructions for judges to provide on what's a lawful order, specifically to a lawful order. That's where you'll find it. Now, when it comes to law of war, LOAC law of Armed conflict, there are a number of different regulations within the service. Like we have a law of war manual. The DoD has, each service has other regulations as well that specify what you can and cannot do and limits on what you can do. So specific to the area we're talking about now, the law of war Manual, again, each service has their own. The Navy has one that covers the Navy and the Marine Corps dealing with these kinds of rules.
- [08:02]
Natalie Orput
So I want to come back to the sort of tension between these two obligations, because as you say, Frank, the requirement to follow orders is really very explicit in the ucmj. And I think it's worth emphasizing that the consequences of intentional disobedience to an order, which is in Article 90 of the UCMJ, for those following at home, if you intentionally disobey, I think it's willfully disobey is the terminology, apologies if that's wrong. An order from a superior commissioned officer, and it is a time of war, you can be court martialed and the sentence can be death. The sentence can be otherwise when it is not a time of war, law of war context. But obviously that is an extreme consequence that people would be concerned about the duty to disobey unlawful orders is not really explicit in the ucmj. It's sort of found elsewhere. So talk a little bit about the tension between those duties and the fact that one is really much more express than the other.
- [09:18]
Colby Vokey
Well, you do have instructions. So, for example, Rule of Court Martial 9, 16 talks about defenses, and it talks about defenses to violation of an order. And that's where it discusses not a duty to disobey, but whether an order must be followed or not. If it's unlawful, it must not be followed. There is nothing out there that specifically says you have a duty to disobey unlawful orders. It's kind of inherent, written in the regulations that we have. But some of them are also a lot of common sense. So take, you get a bunch of Marines that are out combat somewhere, and you find some wounded person laying there. You can't order somebody to shoot it, shoot them. That's kind of common sense. But there's no specific rule that says in the UCMJ that says you are not to shoot a wounded person laying on the ground. The regular criminal code covers that. Now, one thing that should be explained here, we kind of talk about war crimes. The word war crimes gets thrown around quite a bit. Right. And we have prosecuted a lot of different service members over the years for crimes arising in combat, but we do not actually prosecute them for war crimes. I say that a lot of times. Yeah, it's a war crimes case. But in actuality, the last time we actually prosecuted somebody for war crimes was the Civil War with Henry Wirz, who ran Andersonville Prison. He's the last one to be tried for an actual war crime. Other incidents that we've had have been tried under the UCFJ or the equivalent at the time. So, for example, you look at Calley, Lieutenant Cali from the My Lai massacre, he was tried, but he was not tried for a war crime. He was tried under the Uniform Code of Military Justice. So a little bit different. So what we do have here is a kind of a blending of. We have our domestic law, our ucmj, but you also have international law. You have law that is law in the United States. We have the Geneva Conventions, which by treaty, we are members of, must follow. We have all these other documents that reflect international law that we have a duty to follow. Yet they're not in the ucmj. So I think it's important to understand that distinction, that when we're talking about what is there, there are a number of different sources of the law out there, the UCMJ is not the only thing that applies to members of the service.
- [12:03]
Frank Rosenblatt
I'll jump in on that. There are some examples from what Colby just explained. You really, in some cases can be it's a high wire act. On the one hand, you know you'll get in trouble if you don't follow a lawful order, but if you don't realize that the order is unlawful. And sometimes what counts as manifestly unlawful is decided in hindsight. And a couple examples that I'm thinking of. One is an army doctor named Captain Yolanda Hue Von she was ordered to mobilize to go to Saudi Arabia in the Gulf War in 1990 and 1991. So that was an order presumptively, she has to follow it. But she said, I don't believe in this. This is an illegal war. I should not have to go. She was court martialed, defended by a former US Attorney General, Ramsey Clark. And she went through and said, this is my proof of illegality. And the military court. And this was upheld on appeal. Didn't really want to get into what federal courts wouldn't do anyway. Sort of engage in the justiciability of this political question of whether it was okay to go to in Iraq. So she was found to have violated this order and her conviction was upheld. Now, fast forward 20 years. There's a dog handler in also in Iraq, in Abu Ghraib Prison named Sergeant Smith. He was trained on how to operate his military working dog and he learned the standards and he got a lot of practice with it. When he was told to deviate slightly in how he used the dog so that the dog could be in aid of interrogation of detainees and also to terrorize detainees. He was told to do so. He thought his superiors had the right to tell him that. And it didn't seem to him at the time to be such a big deal. However, years later he was convicted for maltreatment of the detainees and his conviction was upheld on appeal. And the court said the order to derogate from your training was manifestly unlawful. You should have known better at the time. So My Lai is often thrown around and Lieutenant Cowley, and I think that's often too simplistic. I mean, everybody knows don't shoot unarmed people who don't pose a threat to yourself. I think the Sergeant Smith case tends to make us want to give more leeway to people who have sincere questions about the lawfulness of what they are asked to do.
- [14:38]
Natalie Orput
That's really interesting. So I want to spend a Little bit more time on this question of what sort of meets the threshold of manifestly unlawful. Particularly because as you say, the obligation to obey orders is very, very strong. Failure to do so may perhaps will get you court martialed and then you do have the opportunity to raise as a defense. But this is already, once you're in court martial context, being criminally prosecuted for some, something you can raise as a defense that the order was unlawful. But talk about who makes the determination of what is lawful and what goes into that analysis. Colby, I'll come to you first and then Frank, I'd love to hear from you as well.
- [15:26]
Colby Vokey
Well, that is a question of law. So if you're in a court martial, the judge is going to determine that. And that's a very simple answer to actually a very kind of complex issue. So this is something I've litigated in courts martial before as to what's a question of law. How much of it is a question of law. Can it still be presented to the members, the military jury otherwise? But kind of the short answer is the judge will determine whether something is lawful or not. Of course that doesn't help the person who is having to make that decision on whether something is unlawful or not. I mean, it's a gamble, it is a heavy decision to make. If you're going to say, I think this is unlawful order, I'm not going to follow it because you're sitting there thinking, well, I gotta wait until they charge me and hopefully the judge will agree with me. So it's a very difficult thing, a difficult choice that you face and it's not always clear. And I'm glad Frank brought up that one example from Abu Ghraib, because Cali is a pretty clear example. I've done a lot of cases that they call war crimes. They're crimes in combat. So for example, the so called Haditha Massacre and I represented Stetsar and Frank Witterich who was the, the squad leader, charged with 13 specifications, 13 counts of murder. And what we have here is a group of Marines that were attacked, they were on a convoy, an IED goes off and they immediately pull over. One Marine was killed, one was wounded. And then the Marines, they pull the vehicles to the side, do the wishbone and they get out and it's the follow on action that creates this whole case that got so much attention back in, starting in 2006. And Staff Sergeant Woodrich and his Marines, they were receiving fire from across Awadi. A quick reaction force with his lieutenant shows up and they're told to clear south. So Woodrich takes his guys into what's known as House 1. They enter in House 1, and the way they were trained at the time, I've just cleared the house, kick doors open, throw grenades, fire into rooms, and they kill a number of people in House 1. They leave there, they go to. They see somebody running from the building. They go to House two, follow them there. And this is where it gets really dark. But they clear House two kind of in the same manner, just throwing grenades and firing at anything that goes in there. One of the rooms there contained a door closed, had just women and children in there that were. A lot of them were killed. All but two were killed. They cleared another house after that. They. And then another house about 45 minutes later that they went through and cleared as well. And when the attack initially happened and the ID went off before they were even told to clear the houses, it's one of these things. Early morning in Iraq, but there was no people out, which was kind of an ominous sign. So when the attack happened and they got out of the vehicle, the only people they saw was a white car on the roadside right next to the convoy. Those people were ordered to raise their hands. They know the deal, raise the hands, don't move. Instead, they get out of the car and they start fleeing. And the Marines fired at them. So we have four different locations. There were shootings that were part of this case, the roadside, where the Marines just assumed they were part of the attack, and when they fled, shot them. House one was a clearing, House two was a clearing, and then House four later. So the roadside one, that was Staff Sergeant Witterich and his men who took it upon themselves to fire. Right. So the question becomes, under the rules of engagement, you know, was it a valid shoot? They were charged with those. But going into House 1 and House 2, he was ordered by the lieutenant to clear the houses. And the result was, especially in that one room in House 2 was an absolute tragedy. So the question is, can Stanslawn Woodard say, look, I was told to clear the houses. This is how we were trained to clear the houses. I'm just following an order. Is that a defense? Well, as the way Haditha went, it was not. Now, could he have refused and say, no, I'm not doing that. It doesn't seem likely that he could have, because at the time, it appeared to be a legitimate military action. But I think the point is, this is the kind of position that our guys can be in. It's not as clear as Calley, I mean, Lieutenant Cowley and me, Lai, that does seem very clear, but for our guys on the ground, it's not always that clear. Now, in contrast to what's been going on in the Caribbean, I think it's. Which is a much, much different situation.
- [20:19]
Natalie Orput
Yeah, I want to ask about that because one thing that really struck me in looking into the questions, legal questions, around the strikes in the Caribbean was there's this question as you reference, Frank, I just published an article about this yesterday with one of my colleagues, Scott Anderson. The question of whether this second strike, as it's been being called, could happen, the facts on the ground and what military leadership has conceded is that there were two individuals who were clinging to a ship, a shipwreck really. And I think you're right to point out that things are not always so clear cut, particularly during combat operations. It's not like you have time to consult a lawyer or do some research to figure out whether you should evaluate an order as lawful or not. But the really struck me about this second strike example is that in the Law of War manual where it talks about unlawful orders, it specifically says that targeting a shipwrecked person is an example of an unlawful order. So I want to hear from you guys about what we can expect from members of the military in different sorts of situations. I imagine this varies quite a bit. But before a judge gets involved, before there's a court martial, when you're just in the moment you receive an order, what is reasonable to expect from members of the military in assessing whether something is lawful and taking into account that, as you say, Frank, the standard is manifestly unlawful. So if it's ambiguous, that's not the area I want to keep hear about. But.
- [22:15]
What is your sense of what can be reasonably expected from members of the military in assessing whether or not an order is manifestly unlawful? Frank, I'll come to you first.
- [22:26]
Frank Rosenblatt
Well, Natalie, I'm a law professor and a former military lawyer, so this may be surprising, but I'm actually going to de emphasize the role of lawyers and legal advice. So often these questions come down to issues, training and experience and knowledge. No one ever says that. The lawyer's legal brief just made me understand everything and now I know exactly what I can and can't do. What does allow us to allow our service members to be competent is training. When they learn they have a mission, when they have an opportunity to train on it, then they can think through contingencies, how far they can go, get feedback from their superiors, including the, you know, the lawyer advising the commander if needed, and then they can do their mission. And that's what I think the issue is here, because we have a well trained and experienced system for dealing with narco traffickers in the Caribbean. It's primarily through the United States Coast Guard. Since September. The quiet thing that isn't really mentioned in the news, because it doesn't really make television, is that they have interdicted 212 boats. They know what they are doing with escalating the notice, boarding, warning shots, disabling, and sometimes they even have authority to use deadly force for boats that will not follow any sorts of commands. So they are competent and capable. And I think that the problems that come here is when you pivot from that and say, all of a sudden we're going to say that this is a war, that's one thing that raises questions for people. And in this war, we are going to send in the nation's counterterrorism force to conduct drone strikes. Now, they are certainly capable of doing that, and they are willing, when they're told to do things, they're not going to say, no, I can't do that. But this was done without the sort of thinking through all the contingencies and the training that the United States Coast Guard has. So with issues of lawful and unlawful orders, it really comes down to if you're operating within your competence and where you're trained to do something, then you're going to be able to know what your limits are. And when you're told to pivot and do something totally different, then it's more likely to raise legal and moral hazard for the military members involved.
- [24:53]
Natalie Orput
Colby, what do you think about that training? I imagine it varies quite a bit, depending on what the mission is, what the context is. But my understanding, for example, with this Law of War manual specific example of an unlawful order being firing on shipwrecked individuals, is that before combat operations, people are retrained on the Law of War manual. Is that accurate? And what other sorts of trainings happen that should be influential in helping people determine lawfulness without sort of consulting lawyers, but rather by consulting their training, as Frank was describing?
- [25:32]
Colby Vokey
Sure. So there is annual training that all service members are supposed to receive regarding military justice, but that really doesn't cover what we're talking about. Most of the training that our warfighters get is prior to a deployment or a combat operation. They receive training on rules of engagement and laws of war. And these trainings are usually conducted by military judge advocates. So the military lawyers are the ones presenting these classes. And it's interesting I mentioned the Haditha case. In that case, some of that training that was given to those Marines actually became evidence in the case. So they would present, here are the rules. Sometimes they're not very specific and they can be vague. And they were presented a number of scenarios of if you face this, what do you do? Is this a lawful order or not? What actions can you take? Can you fire? Can you not? And it's invaluable training. It's great training, which training that we must do. Yet it still has its limitations. For example, in the Haditha case, there was one scenario that was given in training to these Marines before this happened that matched almost exactly one of the shooting, one of the four shootings from Hadithah. And the funny thing was the question, the scenario that was presented saying, here's the situation. They give him like a multiple choice. You can shoot, you cannot shoot. It depends on the situation. And the funny thing was the answer in the scenario, giving and training was it depends on the situation. It's a judgment call. And that's what you have from these Marines. Now when they're being court martialed, they're being told that if this was an order, you should not have followed it. It's manifestly illegal. But in accordance with their training, it wasn't clear whether that action was manifestly illegal. So they do receive training, but no amount of training is going to be able to encompass every single scenario that's out there. Now, I've never seen any training that specifically says don't fire on shipwrecked persons. But I think that one is because that's so clear in the law that you cannot do that. That doesn't really require training.
- [27:59]
Lawfare Advertiser
I'm a last minute holiday shopper. I often don't do it at all until it's too late. You know the feeling, everything's gone already. You don't have ideas. But here's an idea for you. If you're like me and that's your situation, aura frames is the solution with a gift that feels personal. I love my aura frame. But more important than that, I love my aura frame is that the people that I buy aura frames love them. I got two aura frames for the lawfare office. We share them. They're hanging around the office. One of them is just pictures of lawfare people. One of them is the lawfare dependents, pets, kids, all the people that we care about and we upload them to the aura frame and we all share them. We all get a kick out of it. And it's super moving to see both of these frames develop over time. You upload unlimited photos and videos. You individually or a group of people like say, the Lawfare community. You just download the Aura app and connect it to WI fi. You preload photos before it even ships and you can just keep adding them from anywhere, anytime you can personalize the gift, add a message before the frame arrives. You share photos and videos effortlessly straight from your phone all year long. The gift box is included. Every frame comes packaged in a premium gift box with no price tag. You can't wrap this kind of togetherness, but you can frame it. So for a limited time, save on the perfect gift by visiting auraframes.com to get $35 off Aura's best selling Carver mat frames named number one by Wirecutter by using the promo code Lawfare at checkout. That's a U R A frames.com promo code lawfare. This deal is exclusive to listeners, and frames sell out fast, so order yours now to get it in time for the holidays. Support the show by mentioning us at checkout. Terms and conditions apply.
- [30:22]
Deleteme makes it quick, easy and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. The New York Times Wirecutter has named Deleteme their top pick for data removal services, and I'll tell you why. Because data brokers make a profit off of your data, which is a commodity. Anyone on the web can buy your private details and this can lead to identity theft, phishing attempts, and harassment. But Delete Me lets you protect your privacy. I do it with Delete Me and I think you should too. I have an active online presence. I do wacky stuff. I dressed up as a inflatable frog the other day and you know, I put myself out there. I threw dead sunflowers in front of the Russian embassy. But my privacy is, at the end of the day, still really important to me. I want a separation between my public activity and my private life. I've been a victim of harassment, identity theft, and that sort of thing. It's not pleasant. And if you haven't, you probably know someone who has to Delete me can help. So take control of your data and keep your private life private by signing up for Delete Me now at a special discount for Lawfare listeners. Get 20% off your Delete Me plan when you go to JoinDeleteMe.com lawfare20 and use the promo code lawfare20 at checkout, you can the only way to get 20% off is to go to JoinDeleteMe.com Lawfare20 and enter the promo code Lawfare20 at checkout. That's JoinDeleteMe.com LawFair20 code Lawfare20.
- [32:31]
Aramco Advertiser
When you think about meal kit companies, what do you see? Probably long, complicated recipes and subscriptions you can't escape. But with the new Blue Apron, we're doing meal delivery differently. No subscription needed, faster, easier meals and the same dedication to quality we've always had. Shop 100 plus meals@blueapron.com, get 50% off your first two orders with code apron50. Terms and conditions apply. Visit blueapron.com terms for more blood donation.
- [33:01]
Quo Advertiser
Is now more inclusive More people are able to donate blood with the American Red Cross through FDA guidelines that eliminate eligibility questions based on sexual orientation. The Red Cross celebrates this historic change and welcomes those who may be newly eligible to donate blood. There's a place for everyone in the mission of the Red Cross. The Red Cross is committed to achieving an inclusive blood donation process that treats all potential donors with equality and respect while maintaining the safety of the blood supply. Join us and help save the lives. To learn more and make your appointment to donate blood, visit redcrossblood.org LGBTQ that's redcrossblood.org LGBTQ AI agents are everywhere, automating.
- [33:47]
Colby Vokey
Tasks and making decisions at machine speed.
- [33:50]
Quo Advertiser
But agents make mistakes.
- [33:53]
Frank Rosenblatt
Just one rogue agent can do big.
- [33:55]
Quo Advertiser
Damage before you even notice. Rubrik Agent Cloud is the only platform that helps you monitor agents, set guardrails and rewind mistakes so you can unleash agents, not risk. Accelerate your AI transformation@rubrik.com that's R U B R-I K.com.
- [34:17]
Natalie Orput
So in terms of the example you raised, Frank, about the ability of the Coast Guard and how frequently the Coast Guard has done this sort of work in the Caribbean versus what's happening now, which is pretty clearly described as a law of war context. I imagine that if we were to get in discovery, I don't think it's public what the rules of engagement are in accordance with those operations. But if we were to do a side by side comparison of what the rules are for members of the Coast Guard who are and have been doing responses to drug smuggling versus what are the rules of engagement on which people are being trained in accordance with the drone operations, what would those look like and how would you think about the difference in training and what consequences might follow?
- [35:09]
Frank Rosenblatt
There is a real difference with the law of War framework, there is a great license for the use of violence on behalf of the state against lawful military objectives. This, this just isn't the case with a law enforcement framework. So if you think of, say, some hypothetical authoritarian strong person and he wants to exert the maximum force by the state, the way to do this is to claim that the gangs or the rival group amounts to an armed conflict, because that would allow not just arrests, but actual targeting of whatever this enemy is. So that's the reason why you don't just enter a non international armed conflict just by decree or just by saying that it is, but it really needs to be actually against an organized armed group with some sort of high level of hostilities. So there is a real difference there. If this is actually looked at through the law of war framework, there is a lot more license for the use of kinetic military action against lawful military objectives. And I think that's part of the attraction in this case that allows the use of national counterterrorism forces instead of merely the law enforcement framework of the Coast Guard.
- [36:34]
Natalie Orput
Yeah, and I'll note on that sense that the Pentagon had actually, in recent remarks, the spokesperson, I believe it came from, had said, describing this as a war unlocks new authorities for the president. So I'm curious from a lawyering perspective, since you're both lawyers, the lawyers who are sent in to provide this training to military personnel. I mean, let's talk about the ones right now who went in to train the individuals who are operating the drones that are striking boats right now. Did they have the opportunity to say, this is actually not a non international armed conflict and therefore the training that you want me to give that focuses on whether someone is a lawful combatant, et cetera, uses the framework of law of armed conflict, is not the appropriate legal framework in which to function and therefore not the right training to give people before they engage in these operations. Colby, what do you think?
- [37:37]
Colby Vokey
Well, first of all, for operations like this, you're going to have a lawyer, a military lawyer in there advising on targeting and the lawfulness of the attacks. And I'm not sure if it's true or not, but one thing I have heard is that there have been people advising that it's not lawful and they've been relieved and replaced with somebody else. If so, that's incredibly troubling. You combine that with the relief of some of the jags of the services, the actual head, the Judge Advocate Generals, all those things are very, very troubling news to hear. And it's that, you know, it's Kind of like as Shakespeare said, let's kill all the lawyers. The whole point of that is let's get the lawyers out of here so we can do what we want. And that's what it sure smells like here, which is very dangerous. So in this case, you can have a big operations room somewhere where these. These attacks are being directed. You're going to have a senior military lawyer in there who is supposed to provide the advice to the commander who's issuing the orders. Now, the individuals who are on the staff that are planning this or the person who is actually pressing the button to send the missile to hit the boat, they all receive, have received training at some point, but specifically for this operation. I mean, really, the legal presence there is going to be the senior operational military lawyer who is advising the commander on these attacks. And of course, we don't know what's being advised there. We don't know if it's being advised and ignored, if somebody's been replaced until they find somebody who will comply with it. But the administration is calling this a non international armed conflict, thereby justifying that they're allowed to use this kind of force. I think that's faulty anyway. But you can't just declare it a non international armed conflict and it makes it so because you say so. You know, a pile of poop is not a rose just because you change the name. So. And I think that's pretty problematic in this case, but with frank comment on that one.
- [39:51]
Frank Rosenblatt
Yeah, I'll build on what you said, Colby. I think what I would emphasize is that right now there are a lot more questions than answers about what this legal advice is. We've heard through media accounts that a senior lawyer at southcom, which is the geographic area, did not concur. And also Admiral Halsey is appearing before the Senate. I think yesterday, we don't know what's going on there. Admiral Bradley showed up without a legal advisor accompanying him. That's significant. So we don't know if lawyers are giving bad advice or giving advice that's not fully informed by the facts or if they're being cut away from the loop. And so, Natalie, maybe you could share, since you're an insider, anything that you've heard on the role of lawyering here. But the one thing I think your readers really need to hear, there's a big sea change in the JAG Corps for both of our careers. We were told to provide independent legal advice to our commanders. We would call them like we saw them sometimes. Lawyers wouldn't always agree on things, but we would, you know, hash things out and come to some sort of workable solution on. On what the legal advice in a situation is. Early in 2025, that seemingly has changed, there was guidance put out that said the authoritative determination of all matters of law in the executive branch will be done by the Attorney General. And what that means is when this memo from OLC that I don't know much about comes out and says, this is a war, this is lawful, and anyone who is accused of a crime for carrying out their military duties here will be immunized for it, that sort of doesn't invite the military lawyer to say, actually, I don't think that part of that is correct. So that is a big difference in how military lawyers operate this year.
- [41:44]
Natalie Orput
Yeah, I mean, you're right that there has been, as I understand it, an incredible sea change. And it's something that, if folks are interested about this, we've published a number of pieces about the changes to the JAG Corps and what the changes in military lawyering inside of the Pentagon has looked like. And it is shrouded in a lot of mystery, as you say. But there are a lot of signs that we should be deeply concerned. I'm curious, going back to unlawful orders and the requirement to disobey them, I'm curious how this works at the intersection that you're describing, Frank, which is if a legal determination is made, it sounds like maybe here it was made in the White House or in the Justice Department in olc, perhaps that, okay, now we are saying this is a non international armed conflict. Therefore, lawyers, military lawyers, both civilian and military in the Pentagon, must operate and have as their legal framework for their analysis a law of armed conflict framework. If you are a civilian lawyer, obviously the same requirements under the UCMJ don't apply to you. If you're a military lawyer and you. You're given an instruction that is effectively from a civilian authority, what are your obligations then? Because as I understand it, at least for the ucmj, the relevant article from which this derives talks about an order from a superior commissioned officer. So do you guys. Colby, maybe I'll start with you. Do you have any sense of what it looks like, what the analysis would be? If you're talking about an order from a civilian authority to a military lawyer.
- [43:42]
Colby Vokey
If that civilian authority is in a position, we have civilians that can give orders to the military. That's not uncommon at all. I mean, we've got a secretary. The secretaries, right. They are civilians and they provide those orders. And there's other Ways you can charge somebody who violates an order as well. So is not only article 90, you have article 92, there is conduct unbecoming of an officer. There's article 134. So there are other avenues that somebody can be ordered and punished for not following that order. So, you know, the military has a long tradition of we are a civilian led government and that's kind of inherent in everything we do. So we have our generals take, take orders from a civilian president, right? That's, we have these civilian Secretary of Defense, secretary of the services. So that's the way our government's set up and that's the way it should be set up. So, you know, if you have somebody who doesn't have any kind of authority, military authority, then, you know, following that order is one thing. But if you're talking about orders coming down from the Attorney General, the administration, it is being done in a way where the military folks are, it doesn't give them an excuse to ignore the order. So if you have this document that says the Attorney General will determine everything, determining what's lawful, and that's, you know, that comes down from the President, that's given to the Secretary of Defense. I mean, that becomes a lawful military order like any other. It's troubling, but it's a lawful order. Presumptively lawful order.
- [45:27]
Lawfare Advertiser
Right.
- [45:27]
Natalie Orput
But if an order comes from civilian authorities, it is presumptively something that needs to be followed, et cetera. But the framework for disobedience to an unlawful order is if it is manifestly unlawful. So if the order is from based on the OLC memo that any survivor of a shipwreck must be killed in clear violation of the Law of War manual that lists that specific example as an example of an unlawful order, is a member of the military, a military lawyer in particular, or even not responsible for disobeying that order?
- [46:09]
Colby Vokey
Well, yes, you give an order to fire at somebody in the water, that is going to be one. Again, the, the rule is if it's patently or manifestly unlawful, then you don't have to follow it or the person knows the order to be unlawful. Now, how do they know it to be unlawful? That's always a good question. But yes, they do not have to follow that order. In fact, I think you can argue that they have a duty to disobey that order because it's unlawful. And I think you look at it conversely is, would you be able to assert that obedience to orders as a defense if you were charged with that and if the answer is no, then I think you can take the reverse of that and say you have a duty to disobey.
- [46:53]
Natalie Orput
Yeah, I mean, I think if we boil it down, part of what I'm asking is, does OLC in this situation get to define what a lawful order is? Or by contrast, does Congress sort of indirectly, through the UCMJ, thus, as implemented by DoD through the law of the manual, and other authorities, get to say, no, sorry, olc, that is actually not a lawful order? It says so specifically here. Frank, what do you think?
- [47:27]
Frank Rosenblatt
Maybe there's a useful historical analog here. Back in the early days of the war on terror, this also involved the White House and Justice Department. OLC and the United States had become a state party to the Convention Against Torture. Many of our criminal prohibitions, including the Uniform Code, also criminalized maltreatment and other conduct that would amount to torture. And yet we had a legal interpretation through the highest lawyers in the executive branch that said, we are going to be more expansive in what we view to be outside the definition of torture. These are actually only enhanced interrogation techniques. Techniques. A number of things flow from this.
- [48:11]
There was some resistance and questioning within the ranks, including military lawyers, about whether that should happen, some questions about how it should be implemented. And yet what's entirely foreseeable is that many military members, including at Guantanamo Bay and at Abu Ghraib and in Bagram, Afghanistan, did in fact do what they were told. And now Colby has represented some of these, the low hanging fruit, the lower enlisted primarily, who catch the brunt of this. But for the large part, we acted in reliance. And when the administration changed, the decision was made that we're not going to engage in a wholesale criminal campaign against those who engaged in activity that was torture. And a large measure of that, I think, was because OLC had said this is what we view as acceptable. And we expect those in the military to follow our orders.
- [49:06]
Natalie Orput
Colby, do you have any thoughts on that? The tension between OLC's determination of what's lawful and what members of the military are trained on and the authorities that regulate them?
- [49:19]
Colby Vokey
Well, I think there's some obvious limitations on what OLC can do. And I think Frank's example of enhanced interrogation is a great example that was really pushing the limits there. And what we're talking about in the Caribbean here with OLC opinions is something that contravenes the Geneva Conventions. Not just the kind of the law of armed conflict in general or humanitarian law in general, but actual law that's in place that we are signatories of. So you can't have the OLC saying this is a new law without doing something about the other law. I mean, you can't just say, all right, you can rate pillage and plunder. Now in combat, we've determined that's legal, so go ahead and do it. I mean, that seems like a ridiculous example, but that's sort of the slippery slope that we seem to be going down right now. You cannot shoot at these shipwrecked people. The two people in the boat from the September 2nd attack. Whether you consider this armed conflict or not is illegal, and it's really problematic now. I think what's really bothers him is the fact that we're talking about who's giving those orders, is anybody resisting these orders and what's being done to override what the law is. And the protection we have of military lawyers that are there. I mean, the use of military lawyers, I'll be the first to admit, sometimes we have way too many and we don't need as many. But we have some in certain positions that are critical. When we were fighting in Iraq, when I was over there going into the big MEF operations center there, and you're watching in real time screens and things that are going on, right? And something would pop up and some action. And there was a senior lawyer in there who stood there and they said, hey, we've got a target. Check with the judge, kind of how they phrase it, check with the judge. And that judge advocate would be in the back, would review that. Somebody who was trained in operational law. As a matter of fact, she had a master's degree in international law. She was well versed on rules of law, law of war, law of armed conflict, you name it. And she looks at those things and all those factors and then advises the commander that that's a legitimate target. And boom, it happened. And watching this unfold was wonderful to watch. It was wonderful to watch because you're seeing our armed forces operating efficiently, effectively. You have a decisive commander who's made a decision, but he's going to check to make sure that this is in accordance with the law of war, the rules of engagement and everything. That's how it's supposed to work. What we're seeing now is we're taking that piece out. We're either sidelining them, not listening to them, or just replacing them with somebody who, you know, a yes man, and we're taking that out of the equation. That's the protection. That's not just protection for the administration. That's Protection for the individual commanders. That's protection for the people who were pulling the trigger, firing the rocket. Right. For the staff officers that are planning certain operations, that's their protection to ensure that they're doing things lawfully in what has become a very often complicated combat environment that we operate in nowadays. So to have OLC take steps to take that protection out is a very dangerous thing and it's very damaging to the effect of this. Of the armed forces.
- [53:08]
Natalie Orput
Yeah, I think that's such a compelling example because it is something that I think a lot of civilians don't know and is frankly something that I think there is often an interest in people who are defending these sorts of actions to imply that no, certainly you can't have lawyers who are there. It's the fog of war. People have to make sense, snap decisions and there's truth to that. But it is also the case that military lawyers are really integrated or at least traditionally have been and are supposed to be in on the ground, immediate decision making. So I do. I'm glad that you, that you emphasize that. Before we have to wrap up, I did want to hear from you guys both a little bit about the Orders Process project and if you could just tell us maybe a couple of examples of the types of calls that you're getting. Maybe start actually with what is the Orders project, Frank, and what is the goal with it?
- [54:12]
Frank Rosenblatt
Ordersproject.com it's affiliated with my organization that Colby is also a part of, called the National Institute of Military Justice. We started the orders project in 2020. It was pretty quiet for most of its life and really until about September that our calls have, have been picking up. When military members have questions that we talked about this tightrope act, they, they have to walk, then they're likely to seek us. I think that what's most interesting about this is these are usually not like in real time decisions. You know, I'm being told to shoot someone and can I actually do this? But people can recognize that in months from now they may be reassigned. They may be told that they're going on a National Guard deployment to Chicago and they're following the news, they're well aware of the issues and they want to do what the right thing is. So we will hook them up with a lawyer, someone like Colby, someone who's very familiar with the military law attorneys. Because this is important to us, we want there to be a credible source out there. There are many people who, some with good intentions who are advising military members. And I feel like that people Want to know that there's something that's authenticated. You know, am I getting advice that's like a partisan political slant or someone's religious or political agenda? We are here. You know, we're deep in the military judges benchbook, which lays out all of the elements for these things. And so we want to give that sort of neutral assistance.
- [55:48]
Natalie Orput
Colby, are there any examples you can give us? Maybe. I mean, obviously anonymized, but the types of questions that you have been getting from people.
- [55:57]
Colby Vokey
Sure, we've gotten. They've been kind of wide and varied. So there's been calls from people involved with the Caribbean operation who are calling it, like staff members who are involved with staff planning. We've had a call from an active duty commander about deploying to a certain place in the United States that was very troubling for him. We also get it from, you know, junior soldier who is in the National Guard and is deploying to one of the cities and doesn't think it's right and wants to know, if I disobey the order, will I get in trouble? So everything from kind of on the low end, like the last one, with a National Guard person who just doesn't. Doesn't think it's right to people who are engaged in actual combat operations, like things in the Caribbean. And we've also gotten some calls that don't involve either of those two scenarios as well, regarding orders and things that are happening currently in the administration that frankly, some of them are very troubling. So been of wide variety. So. And what we're there to do is somebody they can talk to to find out, you know, am I on the right track by saying I think this is illegal? What are the ramifications if I do that? If they are going to do that, what's the best way to do that? And frankly, a lot of people that call, we tell them, you got a duty to obey. You know, that's like Frank mentioned earlier, a lot of times, it's a political question. If you don't like what a certain administration or president is doing, too bad. So sad. You have to presume that the order is lawful, you follow it. And I would say we get a lot of those, but we get others as well, some of them that are much more difficult situations.
- [57:49]
Natalie Orput
Okay, so to wrap up, I'm hoping each of you can say what you think we should be watching right now, because as I think we've demonstrated, there's a lot of nuance here, and perhaps most problematically, from my view, is because of the nuance, but also because of how much happens behind closed doors in all sorts of situations and in a really specialized context. It's hard to track just how troubling some of these events should be understood to be. So frank, what are you looking at? What do you think are the signs and what do you think people more generally the general public should be thinking about?
- [58:36]
Frank Rosenblatt
My look is a little boring and bureaucratic, but I'm interested in are we doing things the correct way where all involved have a, all stakeholders have a say. There's the proper coordination between military officials. I'm increasingly concerned about really top down military operations where most senior and often political officials are front and center in calling the shots in military operations that really ought to be done at a lot lower level. This concerns me with National Guard deployments and it concerns me with operations in the Caribbean. Although it's more likely that the public finds out the real truth of what's happening in those domestic deployments because of all the barriers and obstacles, including lawyer privilege and classified information. It's really going to take a sustained effort, I think from the United States Senate and Oversight committees to find out some of the real truth of what's been happening with the kinetic military operations against the boats.
- [59:36]
Natalie Orput
Colby, what are you watching?
- [59:38]
Colby Vokey
So I am watching for the actual structure and the military lawyers and commanders ability to make these lawfulness decisions. So I'm also, I'm very interested in further assignments of senior military lawyers, firings of those kinds of people because that's again really, really been troubling in recent times. That's one thing. I also am looking for whether the Coast Guard's mission changes in some way because as Frank mentioned, the Coast Guard does a great job in interdiction in the Pacific, the Caribbean, the Atlantic. I mean, the Coast Guard is one professional force. My son in law is in the Coast Guard and they do great things to interdict, to stop drug boats. They have the rules they follow with escalation of force. They are law enforcement and they do a fantastic job. One of the things I'm looking to see is does the Coast Guard's role somehow change from law enforcement to more of a combatant force? And that would be troubling if it is.
- [60:43]
Natalie Orput
Okay. I think that's a great place to leave it. Frank and Colby, thank you so much for joining us.
- [60:48]
Colby Vokey
My pleasure, Natalie.
- [60:52]
Natalie Orput
The Lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfair material supporter at our website lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, the Aftermath and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfaremedia.org the podcast is edited by Jen Patya and our audio engineer. This episode was Kara Schillen of Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.
- [61:49]
Aramco Advertiser
Who drives the world forward? The one with the answers or the one asking the right questions? At Aramco, we start every day by asking how? How can innovation help deliver reliable energy to the world? How can technology help develop new materials to reshape cities? How can collaboration help us overcome the biggest challenges? To get to the answer, we first need to ask the right question. Search Aramco Powered by How Aramco is an energy and chemicals company with oil and gas production as its primary business.