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When Trump took office, one of the first actions he took was to fire all the Judge Advocates General of the military services. It was a troubling act, particularly for the reasons stated. At the time, Secretary Hegseth said: "the removals were necessary because he didn't want them to pose any 'roadblocks to orders that are given by a commander in chief.'" That begged the question, "what roadblocks?" It brought to mind the Shakespeare quote, "The first thing we do, let's kill all the lawyers". What most people don't realize is the context. It was a conversation between the rebel leader Jack Cade and his henchman, Dick the Butcher, in scene 2 of Act IV of Henry IV, Part 2. The point being, eliminating lawyers removes a major impediment to the path to more power, and a step in the direction of a totalitarian form of government, since lawyers represent "the guardians of the rule of law".
In a recent piece for The Atlantic, Tom Nichols relayed the following anecdote:
"In 1973, an Air Force nuclear-missile officer named Harold Hering asked a simple question during a training session: “How can I know that an order I receive to launch my missiles came from a sane president?” The question cost him his career. Military members are trained to execute orders, not question them. But today, both the man who can order the use of nuclear arms and the man who would likely verify such an order gave disgraceful and unnerving performances in Quantico. How many officers left the room asking themselves Major Hering’s question?"
For the majority of my military career I served in the Judge Advocate General's Corps, United States Army. For more than a decade of that time I performed Operational Law tasks - advising commanders on legal issues, and teaching the Law of Armed Conflict (LoAC) to US troops - either in Operational Law sections or as part of my regular duties. All JAGs are trained in, and most have, operational law requirements as part of their duties, but most do so on an occasional (rare) or supplemental basis. In my case it was a major part of my job for over a third of my career. Major Hering's question was a theoretical one, posed in a training scenario. I have had to address that very question, or more generally, "How do I know that my orders are lawful?", regularly, posed to me, while conducting such training. Tom Nichols taught longer than I did. (In 1997, Nichols became professor of strategy at the U.S. Naval War College, a position he retained until 2008. Wikipedia).
Major Hering's question is no longer theoretical.
Over the last month, the US Navy (presumably) has conducted four strikes on speedboats in the Caribbean, assertedly killing 27 people (we only have video and claims from the Trump regime for evidence). To conduct those operations, the regime had to overcome the "roadblocks" of US and international legal standards. (That is a nice way of saying, "the actions are illegal".) In addition, Trump has ordered military troops into various US cities, supposedly to "assist" "law enforcement" activities, although the reality has (so far) been quite different. In his last term the Secretary of the Army and the Chairman of the Joint Chiefs of Staff resisted such deployments. Such resisters have been systematically purged from the military ranks.
The problem facing military commanders at every level, now, is that Major Hering's question, and the "theoretical" questions I faced conducting LoAC training, are no longer theoretical. The Supreme Court has granted to the President immunity for issuing unlawful orders. His subordinates, from the Secretary of Defense on down, possess no such immunity, and in international courts, no such immunity exists for any of them. The disturbing display at Quantico made that issue crystal clear to the hundreds of senior leaders dragooned into attending. On some level, illegal orders are already being issued and followed, and commanders are now facing a very real dilemma about how to lawfully and morally address them. In the Caribbean, some have already failed that test.
In a recent piece for The Atlantic, Tom Nichols relayed the following anecdote:
"In 1973, an Air Force nuclear-missile officer named Harold Hering asked a simple question during a training session: “How can I know that an order I receive to launch my missiles came from a sane president?” The question cost him his career. Military members are trained to execute orders, not question them. But today, both the man who can order the use of nuclear arms and the man who would likely verify such an order gave disgraceful and unnerving performances in Quantico. How many officers left the room asking themselves Major Hering’s question?"
For the majority of my military career I served in the Judge Advocate General's Corps, United States Army. For more than a decade of that time I performed Operational Law tasks - advising commanders on legal issues, and teaching the Law of Armed Conflict (LoAC) to US troops - either in Operational Law sections or as part of my regular duties. All JAGs are trained in, and most have, operational law requirements as part of their duties, but most do so on an occasional (rare) or supplemental basis. In my case it was a major part of my job for over a third of my career. Major Hering's question was a theoretical one, posed in a training scenario. I have had to address that very question, or more generally, "How do I know that my orders are lawful?", regularly, posed to me, while conducting such training. Tom Nichols taught longer than I did. (In 1997, Nichols became professor of strategy at the U.S. Naval War College, a position he retained until 2008. Wikipedia).
Major Hering's question is no longer theoretical.
Over the last month, the US Navy (presumably) has conducted four strikes on speedboats in the Caribbean, assertedly killing 27 people (we only have video and claims from the Trump regime for evidence). To conduct those operations, the regime had to overcome the "roadblocks" of US and international legal standards. (That is a nice way of saying, "the actions are illegal".) In addition, Trump has ordered military troops into various US cities, supposedly to "assist" "law enforcement" activities, although the reality has (so far) been quite different. In his last term the Secretary of the Army and the Chairman of the Joint Chiefs of Staff resisted such deployments. Such resisters have been systematically purged from the military ranks.
The problem facing military commanders at every level, now, is that Major Hering's question, and the "theoretical" questions I faced conducting LoAC training, are no longer theoretical. The Supreme Court has granted to the President immunity for issuing unlawful orders. His subordinates, from the Secretary of Defense on down, possess no such immunity, and in international courts, no such immunity exists for any of them. The disturbing display at Quantico made that issue crystal clear to the hundreds of senior leaders dragooned into attending. On some level, illegal orders are already being issued and followed, and commanders are now facing a very real dilemma about how to lawfully and morally address them. In the Caribbean, some have already failed that test.
