Since World War 2, the US has not declared war, despite engaging in military actions. Since the War on Terror, globally, declarations of war have gone by the wayside, and it has been decades since any nation has declared war. This is despite numerous military actions being undertaken. This is generally how the status quo of human civilization has been conducted: Why give your enemies a heads up that you are going to be engaging them in war, thus giving up the initiative of a first strike.
Contextualized in the contemporary situation, the US has conducted strikes on alleged Venezuelan drug traffickers in small boats. I say allegedly, as the government has not provided any actual concrete proof that the boats were carrying drugs, and thus we have to take their word that there were indeed drugs on the boat. Allegedly, during one of the strikes,two men survived, and were seen clinging to the side of the wreckage. Allegedly, a commander ordered a second strike to finish off the survivors. In response (and possibly for political football as I’ll explain later), six Democrats created a video urging troops to refuse illegal orders. What is an illegal order is fairly murky, as I’ll discuss later, as there is a lot to unpack with this whole situation.
First and foremost: I believe firmly that military action should not be conducted without a declaration of war/ declaration of intent. I believe the world is an overall safer, and more stable place, when nations are open and upfront about what their interests are. The overall stability of global security is destabilized when the interests of nation-states are ambiguous. This ambiguity takes control of the government away from the people, as the ambiguity can divide the interests of the nation, making it more difficult for people to hold their government accountable. Examples of this include both the Vietnam War, and the War on Terror, where the government was given a blank check to engage in combat in Vietnam and the Middle East. As the conflicts dragged on, and with no clear endstate in sight, people began to turn support against the wars. However, many people still believed in the original intention, and there was an internal struggle within the country about whether or not to continue the conflict. The reason these conflicts took over twenty years to conclude was because of a lack of cohesion due to the ambiguity of the conflicts.
The conduct of the drug boat strikes: As stated above, striking targets without some formal declaration of intent. I personally would not have an issue with striking drug boats, if they were indeed actually drug boats that were confirmed to be connected to drug cartels. Most drug cartels act like petty nation-states, and they act in a fairly tyrannical/hostile manner to people they are sovereign over, and foreign nations. I would have no issues with striking the boats, or the cartels directly. The issue with the drug boat strikes is that there is a lot of secrecy around the intelligence related to the drug boats. Most of the released intelligence is overhead drone footage. In theory, you can see containers that could contain drugs bound for the US. However, nobody outside of the intelligence community would know with a higher degree of confidence whether the containers held drugs or not, or if it was just indeed a fishing boat. Maybe the intelligence community is protecting some other collection asset by just releasing footage, giving cover to the knowledge of the alleged drugs onboard. However, this again creates ambiguity, uncertainty, and ultimately skepticism in the conduct of the conflict. If the intelligence was a high enough confidence to conduct a strike (which is usually pretty high), that intelligence should be released to give proof to the American public, whom the government is accountable to, the confidence that the strikes are reasonable and within the scope of American interests.
Furthermore, the alleged second strike on the two survivors of the initial strike is a great cause for concern. It’s one thing to kill enemy engaging in direct hostile action. However, after the strike has occurred, and the enemy cannot engage in the action anymore, we should not kill survivors for a number of reasons.
The chief reason is reciprocity: If we kill people who cannot fight back or have surrendered, we have stated that the conflict is no holds bar, there are no rules, and that the stronger side with the intention to win, will win. This means that if our troops are caught in a similar situation, there is a higher likelihood that they will also be executed or tortured if they are captured. We treat captured combatants with some amount of dignity and grace because we would want the enemy to treat our troops the same way. This is purely the practical reality of human interactions. Humans tend to respond to actions taken upon them with more or less similar actions. It is only when the action is escalated that more unhinged violence occurs. The US has set the bar pretty low by allegedly killing the survivors, and if any US servicemen are captured in this conflict, there’s a high chance they will also be executed or tortured in a gruesome manner.
The next reason is also practical, however it is linked to morals and ethics: Killing combatants who can’t fight back hurts the argument of legitimacy for the US cause. Other nations do not like it when a larger nation is appearing to bully a smaller nation, even if the action is justifiable by the larger nation. The optics of the situation make it seem like the US is exerting influence in an untoward or illicit manner. I would argue that the US does have cause to strike drug boats (again, if they are indeed drug boats). However, that argument becomes more difficult, as other people in the discussion may handwave that legitimacy away, and opt for a motte and bailey based on a moral framing of the situation. If we are going to fight, we need to fight for the right reasons, in the right way. We need to be as clean as we can be with our conduct. This is why, again, being transparent with the source of intelligence is necessary. Hiding behind obscurity, and killing survivors of a strike, makes it appear as if we have something to hide, or that our confidence is low, and using uncertainty covers for that low confidence.
Finally, we should not kill those who cannot fight because it is an immoral and unethical thing to do. Even if those men were evil drug traffickers, we ought to be better men than them, and recognize them for the humans they are: Flawed, like us.
For the final section, I will discuss the six Democrats telling troops to refuse illegal orders. The current rumor is that the Democrats created the video when they learned in security briefings of the second strike. They released the video before the rumor of the second strike was released, so it optically it appeared that Democrats in the Congress were trying to undermine the President’s authority to command the troops as the Commander-in-Chief of the armed forces. There are issues with everything I’ve described.
For one, while members of the armed forces are obligated to not carry out/follow unlawful orders, what is or is not an unlawful order is murky at best. The US is a signatory of the Geneva Conventions, and is in theory bound and obligated to conducted armed conflict in the manner described in the conventions. The Armed forces teaches every uniformed member about what lawful war looks like in an academic setting; classes are given by officers/Judge Advocates (military lawyers) to all ranks. Again, in theory this is great. However, actual life experience is much different from a relaxed classroom. Life is messy, chaotic, and most of all, uncertain. Nobody on the battlefield has all of the facts, and what might appear to be a justifiable action from one perspective, might overall be completely unjustifiable, and illegal. This is why for criminal cases (in the US), we have a jury of peers review the case, and analyze the facts from a variety of perspectives, and come to a conclusion on what the correct outcome and solution ought to be. This system is by no means perfect, as juries routinely convict innocent people, and let guilty people walk on the flimsiest of reasons. However, it is the best solution we have currently, so we have to roll with it.
There is no independent judiciary that reviews military action. The military has an internal judicial system that reviews the legal conduct of military actions. War crime convictions within the US military are pretty rare, and whether or not that’s because the military actually conducts military actions in a legal way or not is fairly ambiguous. This makes the military at best, ambiguous in its conduct. It is possible that a JAG (Judge Advocate) reviewed the strike recommendation, and gave the thumbs up to conduct the strike as a legal strike. Does that make the strike legal? The question on who determines what is or isn’t legal is really up to the military. In theory, the Congress could conduct a review, call officers or witnesses in for questioning at a hearing, and potentially impeach/convict the responsible parties/the President. However, again, that is an exceedingly rare occurrence. Overall, the Congress has largely willingly given up its war powers authority by signing extensions to the Authorized Use of Military Force (AUMF) since 2001. Off the top of my head, I can’t think of a time ever where alleged war criminals were held accountable by the Congress. What is or isn’t legal conduct of war is largely a buzzword, and the only people ever held accountable for war crimes are foreign military officials.
As for the actual content: There is nothing wrong with saying “Do not follow legal orders”. However, as discussed above, all orders are inherently believed to be legal, and the ability to prosecute illegal orders is fairly unlikely to happen. It’s clear to me that the Democrats were using a motte and baily tactic: Attempt to undermine the President’s ability to command the armed forces by instilling the idea that troops ought to actively question whether the order is illegal or not, and hide in the motte of stating “We’re just saying don’t follow illegal orders”, when called out for the obvious attempt at undermining Presidential authority. If the Democrats did feel that the President or Secretary of Defense did actually commit a war crime, they should attempt to impeach, remove, and convict them of that crime. However, the Democrats are very unlikely to do that, as the Republicans are unlikely to convict the President or Secretary of Defense of war crimes (and likely because they themselves believe it wasn’t a war crime).
Overall, this situation is just further evidence of how the two main political sides in this country no longer share the same world view.