Prosecuting Our Military When It Murders

The United States military continues to carry out illegal strikes on civilian boats allegedly engaged in drug trafficking.

The case that this is criminal is, in my view, not close. Contrary to the President's assertions, there is no serious argument that we are in the midst of an armed conflict with ... who exactly? Drug traffickers? Their behavior (if indeed the boaters are engaged in wrongful activity at all, which is hardly assured) is the epitome of criminal misconduct, which must be dealt with via criminal proceedings. We do not get to fire rockets at the vehicles of suspected criminals. And even if one could strain to argue that this falls under a military engagement, the follow-up strikes on shipwrecked sailors violates longstanding rules in the law of warfare. We literally sentenced Nazis to death for doing this.

There is a lot of enthusiasm for "prosecutions" amongst Democrats now. I share that enthusiasm. We must make clear that, if and when Democrats retake power, there will be consequences for the criminal activities that have run rampant through this administrative. And in many ways, this represents both an easy and an important case. 

It's easy because not only is the law incredibly clear, but there's no difficulty identifying the responsible party. This isn't a situation where we have to track down a masked unknown grunt who stood out for particularly brutal aggression (as in many of the ICE cases), or alternatively, where we have to do difficult work in tying said grunt's actions to specific orders from higher-ups. Here the military context makes command responsibility obvious, and the commanding General, Francis Donovan, is named in the Pentagon press releases bragging about the "operations".

It's important because restoring the applicability of law of war principles to the U.S. military is of absolute existential importance for a nation with the most powerful military on the planet. Without downplaying the many, many breaches, there is a huge difference between a military that is internally committed to law of war rules and one that from the top decides to openly flout them. The latter situation is how you do start seeing what Trump wanted to do, but couldn't, in term 1 -- deploying the full might of the American military apparatus against the American citizenry to retain a dictatorial grip on power.

And on top of all that, of all the potential criminals one might find harbored by the Trump administration, General Donovan is probably among the most vulnerable. The president's pardon power does seem to extend at least partially into the realm of military justice (and in fact, Trump has already pardoned several war criminals). but it seems clear to me that the pardon power cannot completely obstruct a future Commander-in-Chief's power to drum out of service an officer whom the CinC lacks faith in as a legitimate holder of rank and service. Of everybody implicated in Trumpist crimes, those in the military are, formally speaking, probably the least insulated from facing accountability from a future administration.

But in spite of all that, I suspect that prosecuting General Donovan and his compatriots responsible for criminal actions on the high seas will be much more fraught and less popular than essentially any other prosecution a future administration might bring. The political gravity pulling against prosecuting members of the military -- regardless of the context -- is just going to be too strong. Rightly or wrongly, I suspect it will be insurmountable for any junior officers or enlisted men involved in the operation. And even for the senior leadership, I can't imagine it going over well even in a context where there is a significant demand to prosecute, say, ICE leaders or Trump associates found to have embezzled money.

I don't have a good answer for this because, again, the need to restore deterrence here is nothing short of existential. We've seen in the Israeli case -- it barely managed to limp across a conviction in 2016 when IDF soldier Elor Azaria shot an unarmed Palestinian, and just doing that nearly tore the country apart. That set the stage for the non-prosecution decision for soldiers accused of sexual abuse of Palestinian detainees ten years later -- a decision that again came on the heels of widespread government intervention (including joining in outright rioting) in support of the abusers. The culture of impunity that's developed in the intervening years no doubt plays no small role in the brutal devastation the IDF has wreaked against civilian infrastructure in Gaza, the West Bank, and Lebanon (the soldiers punished for vandalizing a Jesus statute had every reasonable expectation of assuming they'd be let off scot-free were it not for the  bad fortune of angering one of the few foreign constituencies the Israeli government still cares about appeasing). As disastrous as that trajectory has been in the Israeli case, I don't think they're in any way unique -- most countries (and certainly our country) blanches at holding their uniformed military personnel accountable for misdeeds.

So I don't know. It might that these prosecutions, or other retributive measures, have to be a little less media-forward than others. They might not be political winners (and to be clear, I do think that going after corrupt Trump apparatchiks will, in general, very much be a political winner in addition to being the right thing to do). But it still needs to be done.