OBEY OR DEFY SUPERIOR ORDERS

Since September of this year, on orders from President Donald Trump and Secretary of War Pete Hegseth, the U.S. military executed air strikes on more than 21 vessels in the Caribbean Sea and the Eastern Pacific Ocean. Many of these vessels have been identified as fishing boats, and most of the 83 casualties were believed to have been Venezuelan or Colombian fishermen. On October 16, the Commander of the Southern Command, Admiral Alvin Holsey, a 37 year veteran, after less than a year in his role, following disputes over these military strikes, announced his retirement from the navy and "serving as commander" effective December 12. His announcement came just days after the U.S. conducted its 5th known strike on a boat, killing six people. On October 31, Volker Turk, U.N. High Commissioner for Human Rights, cited that these air strikes violated international human rights law and were executed under circumstances that suggested no justification in international law, and had to stop immediately. Although the U.S. defended its operations as part of its ongoing effort to combat drug trafficking and terrorism, Mr. Turk insisted that the international use of lethal force is only lawful as a last resort, when individuals pose an imminent threat to life. A few weeks later, Senator Mark Kelly (D-Az) , supported by five other lawmakers who had served in the military or intelligence community, speaking "directly to members of the military" posted a video telling them that they "can refuse illegal orders," and "stand up for our laws ... our Constitution." In response, President Trump called the video "seditious" and "punishable by death." He echoed "truth social" posts, including one recommending the six be hanged. All of these developments are related. The illegal, illogical military strikes in the Caribbean continued and generated world-wide reactions and expansive discussions the administration might not have foreseen. While Mr. Trump predictably continued to shoot from the hip, his Press Secretary, Karoline Leavitt, attempted to temper his public reaction. She suggested that the president did not mean to impose a death sentence on the six, but she cautioned that the video was disrespectful and had the potential of inciting violence. She was adamant that all military orders by Trump must be "presumed to be legal." "You can't have a functioning military if there is disorder and chaos within the ranks." However, the ensuing discussion exposed a contentious topic the administration was clearly not ready for., on a topic which may be controversial in some quarters, but one which is actually straight forward. The United States Military Academy at West Point, at its Constitution Corner, prominently displays a plaque stating: "Our American code of military obedience requires that, should orders and the law ever conflict, our officers must obey the law." It clearly suggests that our military officers swear an oath of loyalty to the U.S. Constitution, not to a person or a leader. It pointedly emphasizes that our Constitution reigns supreme over any individual, breaking a principle with the historical tradition of military leaders swearing allegiance to a monarch. The Uniform Code of Military Justice (UCMJ) would likely consider lethal attacks on fishing boats to amount to unlawful killings, or murder, unless a clear justification for the use of force exists. Attacks on suspected drug vessels are seen by many legal experts as extrajudicial killings that violate international human rights and humanitarian law. Striking a vessel in international waters can't be justified as self defense. Secretary Hegseth's demand to "kill them all" and to "leave no survivors" can legally be classified as a call to murder, and expose our operators to be charged under international law. There is no clear legal basis for using lethal force in this situation, and it underscores the argument made by Senator Kelley et al. President Trump's arguments are incredible, illogical and irrelevant. His claim that each of these strikes saves 25,000 U.S. lives because the maneuvers thwarted drug smuggling lacks veracity - there is no proof that these fishing boats carry drugs - and are illogical on the face of it. All of last year drug overdoses killed an estimated 80,000 people in our country, a 27% decrease from 2023.The math does not add up. Besides, accusations that these boats carry fentanyl are patently untrue. Fentanyl comes in from Mexico, not Venezuela. While throughout history, multiple cases of situations in which military subordinates should have questioned their superiors when confronted with illegal orders can be found, two famous cases readily come to mind: the My Lai massacre, and the heinous crimes committed by Nazi officers during World War II. The My Lai massacre is one of the gravest violations of criminal law ever committed by a U.S. soldier. More than 340 innocent civilians, including women and children were murdered at the hands of Army First Lieutenant William Calley Jr. and his subordinates. This situation presented an extreme example of the contradiction between obedience to orders and obedience to international and criminal law. The "Nuremberg defense," the argument that an individual is not responsible for crimes because they were "just following orders from a superior," famously argued, and just as famously rejected during the trials Nazi officers after World War II, established the principle that individuals are responsible for their actions, and must refuse illegal orders. As a result 161 Nazis were convicted, and 37 were sentenced to death. In short, soldiers are required to disobey unlawful orders, and they can be punished for following them. An order is considered unlawful if it is contrary to our Constitution, U.S. laws, lawful superior orders or if it requires the commission of a crime like targeting civilians or torture. This duty to disobey is a core principle, and refusing a manifestly illegal order can be a legal defense if a service members is later court martialed for refusing to obey an order. Theo Wierdsma