The Threat To Our Military

Last Tuesday, video was released showing an attack by a U.S. military asset on a small boat reportedly sunk with the loss of all onboard. The location of the attack was not disclosed, but it was claimed that the boat was in international waters after leaving the mainland of Venezuela. Facts surrounding the incident are scarce. There are assertions from the President Bone Spurs Administration that it was an identified narco-terrorist boat filled with illegal drugs headed “eventually” to the U.S. In my career as on officer in the U.S. Navy, I participated in numerous drug operations in the Caribbean Sea.

For decades, the U.S. Navy (USN) and the U.S. Coast Guard (USCG) have conducted anti-drug operations. They have always been considered law enforcement actions. The USN ships participating would carry USCG detachments onboard because the U.S. military does not do law enforcement. The USCG is part of the Department of Homeland Security (DHS) and does have law enforcement capability and authorization. I have seen a lot of boats similar to the one sunk on Tuesday during my days on these operations. Some were carrying drugs. Some were legitimate fishermen. I did not see any, but others are known to carry undocumented migrants trying to sneak into the U.S. Some are innocent civilians traveling about the Caribbean Sea. How do we know that the administration is legitimate in its claims that these were narco-terrorists without positive identification? Normally, the USN ship would stop the vessel — most stopped when asked, or if not, they did when we trained guns on them, but if they did not, accurate gunfire would disable their engines — and the heavily armed USCG detachment would go onboard and search the vessel. If drugs were found, the crew was arrested, the cargo seized and the boat taken over by U.S. military personnel or towed to port. Not every boat we stopped and searched was a drug runner. Most were innocent people undertaking innocent business of their own. It worked.

Unless you ask Secretary of State Marco Rubio. While in Mexico he said “the United States has long, for many, many years, established intelligence that allow us to interdict and stop drug boats. We did that. And it doesn’t work.”  He went on to say “what will stop them is when you blow them up, when you get rid of them.” Therefore, “instead of interdicting it, on the president’s orders, we blew it up. And it’ll happen again. Maybe it’s happening right now.”  Maybe they killed innocent civilians without regard to international law. This is a frightening development if we really delve into it. It contradicts precedent, American values and the law. A secret document signed by the president does not change the law. If a criminal act is discovered, it is handled by law enforcement officials. Not the military. For this administration the words “national security” and “emergency” seem to be thought of as some kind of magic words that allow them to do whatever they want, be it tariffs, immigration, health care or the use of our military in domestic circumstances.

Trump likes to act like the tough guy but really he is quite weak. Just ask XI, Putin and Kim. Whether you believe him to be strong or weak does not matter, he is still expected to follow the law. Trump is consistently creeping ever closer to using the military for his own personal purposes. Under international law he cannot order a bombing attack on a non-threatening vessel in international waters just because he wants to look tough.

Do I sympathize with drug runners or want to see them succeed as Trump and his minions claim of anyone that questions their unlawful actions? No. Of course not. I do, however, believe in the rule of law and the president cannot just make it up as he goes along. Indiscriminately killing people in international waters does not enhance our liberty or the pursuit of happiness.

The Posse Comitatus Act (18 U.S.C — 1385) from 1878 bans the use of the military for law enforcement “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” So far, none of his actions with active duty forces or the National Guard meet those criteria. While it is a little more complicated for the National Guard — depending on whether they have been nationalized as federal forces by the president or whether they are under the control of the state’s governor — the way that they have been used is not legal. Do not take my word for it, take the word of federal District Judge Charles Breyer who recently ruled that the Trump Administration’s federalization of the National Guard and the use of U.S. Marines in Los Angeles to assist ICE and other federal agencies in arresting undocumented immigrants violated the Act in multiple ways. His decision carefully debunks the three main arguments that the Trump attorneys asserted was within presidential power. Each of their three assertions basically say that the president cannot be held criminally liable because only the Executive Branch can prosecute violations through the Department of Justice (DOJ) and the president controls DOJ therefore the president can act in his own best interests.

I have oversimplified what is considered an elegant and air tight decision, but given that the Supreme Court of the United States (SCOTUS) said that presidents are immune from prosecution when acting in an official capacity, none of us should rest easy. If the SCOTUS overrules the lower courts, Katie bar the door. It is open season on all of us.

The military has a proud tradition of pledging loyalty to the Constitution and not to any individual, including the president acting as Commander-in-Chief. They are bound to obey lawful orders from their superiors, but Trump is coming right up to the line. We will see if he crosses over.

There is no one in his administration that will pull him back. Secretary of Defense Pete Hegseth is incompetent. He only does what he is told. And now he and the president want to rename the Department of Defense (DOD) the Department of War. There is a long history behind it — the Department of War was the Army until post World War II reforms. It and the Department of the Navy were cabinet positions, there was no Air Force. The National Security act of 1947 realigned the Defense Establishment. An act of Congress in 1949 created the title Department of Defense. They want to rename it because that is what it was during World Wars I and II. Ahhh. The good ol’ days. It would take an act of Congress to officially change it, but like everything else, Trump plans to issue an Executive Order (E.O.) allowing the use of the name, even if he is not officially changing it. In other words, a rebranding effort.

We have already seen that Trump will do whatever he wants. I think we are only beginning to understand how lawless his behavior already is and how much further he is ready, willing and able to go if he wants it. Remember that he fired the leaders of the Air Force, Navy and Coast Guard as well as the Chairman of the Joint Chiefs and multiple other senior officers including the Judge Advocate General (JAG) in each of the services. Recently, Hegseth reassigned six hundred (!) other military lawyers to assist DOJ as immigration judges. (Recall that this administration fired or forced into early retirement over 100 immigration judges when they took over.) Who is left to advise leaders as to the legality of the military decisions that are being made?

Already our due process rights are in danger as masked, unidentified men are disappearing people off the streets of our country as I type. They are sent on their way to who knows where. What should we expect if the president can indiscriminately use the military for law enforcement purposes? Why not drone strikes inside the U.S.? Why not use the military to take care of criminal gangs? When that happens we are finished as a democracy. Stick a fork in it, we’re done.

In 2020 there was a draft E.O. ordering the military to seize all voting machines. Ultimately Trump backed down and did not sign it — mainly because senior military and civilian leaders told him it was illegal. Now there is no one in place that would stop him. It may happen in the future because he already says results from voting machines are not valid. What if he declares voting machines to be counter to U.S. national security interests because he thinks that they can be manipulated by foreign powers? (They cannot be manipulated.) Does he execute his E.O. and have the military seize the machines or does he just declare the results invalid?

I fear for our men and women in uniform and the pressure that will increasingly come their way in Trump’s endless pursuit of his own interests. Where are the senior uniformed military leaders? Are they okay with this? Afraid of being fired? If so, I am ashamed for them.