Cuba Libre: One Man’s Morality or Our Law?

By Steven J. Lepper, William D. Baumgartner, Eugene R. Fidell, Daniel Maurer and Rachel VanLandingham, Lt Col, USAF (Ret.)

Orignally posted on Just Security you can find it here

In February 2025, when President Donald Trump and Secretary of Defense Pete Hegseth fired the Chairman of the Joint Chiefs of Staff and a number of other senior military officers including the Judge Advocates General of the Army and Air Force, we joined with a number of our former judge advocate (JAG) colleagues to protest what we perceived as an initial assault on the role and rule of law in the military. We feared that this event, later justified as a way to remove obstacles to presidential action and to instill in the military a “warrior ethos” of “maximum lethality, not tepid legality,” would weaken the legal foundations of our honorable service. The facts show, unfortunately, that we were right. 

Deploying the military to Los Angeles and other cities to respond to fictitious crises, killing over 150 civilians on the high seas for suspected narcotrafficking, invading Venezuela to arrest its president, and now waging a costly war of choice against Iranare all examples of the ways this president has exploited the openings he created by removing those perceived obstacles.

Through it all, we former JAGs have done what we can – petitioned Congress, written and spoken about the president’s misuse of the military, and joined court cases to resist some of those abuses – to educate our fellow Americans about the need for legal guardrails around our military and the likely consequences if they are not restored.

In January 2026, President Trump declared to The New York Times that his power as commander in chief is constrained only by his own morality: 

“My own morality. My own mind. It’s the only thing that can stop me.” 

Most people, including us, were shocked by his claim. We continued to protest unlawful use of the military. However, confining ourselves to narrow legal analysis has proven insufficient.

Today, in the midst of the United States’ and Israel’s war against Iran, the national conversation has begun turning to what’s next. Why, in the middle of one war, are we even talking about where the next one might arise? Because the president has ordered a strangling, de facto military blockade of Cuba and suggested he might invade to achieve regime change (“I do believe I will be having the honor of taking Cuba…. Taking Cuba. I mean, whether I free it, take it. I think I can do anything I want with it”).

Like so many other Americans, we’re still trying to understand why our nation attacked Iran. The administration has provided a variety of justifications: we want to prevent Iran from developing a nuclear weapon, we’ve actually been “at war” with Iran since it took Americans hostage back in 1979, we want new leadership in Iran, we want to protect Iranians against their government… and so on. 

Our group of former JAGs concluded that none of these reasons was legally sufficient and declared the attack on Iran unlawful because it didn’t conform to either the Constitution (which reserves to Congress the authority to initiate war) or treaties to which the United States is a party (which prohibit the use of force except in necessary and proportionate self defense or with UN Security Council authorization), and which the President must faithfully execute. While we believe our analysis was right, we have also now concluded that our singular focus on “the law” had us partially aiming at the wrong target. 

We should have seen around the corner back in January, when the president asserted that he believes the law doesn’t apply to him, that our national conversation must be broader. It took the Cuba conversation to bring us back to that reality. When the president said, “I can do anything I want” with that neighboring country, it finally struck us that trying to assess the legality of what the president was proposing – a possible attack on Cuba – only matters if the American people believe the law itself matters. To this president, it doesn’t. Thus, it is to our fellow citizens that we now turn. 

How Did We Get Here?

The firing of the Judge Advocates General of the Army and Air Force were milestones on a road that started well before February 2025. That event was just one of several that have systematically dismantled the military’s legal guardrails. When the president says, “I can do anything I want,” he means he believes no one can or will stop him. He believes that because:

• In Trump v. United States, the Supreme Court conferred absolute immunity from prosecution upon him whenever he exercises his core constitutional authority, like his authority as commander in chief. 

• Congress has been unwilling to stop the president or hold him politically accountable for his unlawful actions. 

• Senior government lawyers have defended him in court and in the media by doing what lawyers do: finding ways to argue the law and facts to justify his actions, or simply that his “determinations” essentially stand in the place of legal analysis. In the context of his wars abroad, the president’s shifting reasons for going to war have given lawyers a lot of fodder to work with, particularly in the case of Iran.

• While lower courts have often rebuked the administration, the Supreme Court has handed him an extraordinarily high percentage of wins. 

• He has used the immense levers of power available to the presidency – particularly his Department of Justice – as both a shield to defend his own excesses and as a sword to eliminate or retaliate against those who get in his way.

• The military has been unable to resist; its strong culture of obedience to orders, its long-standing assumption that honor requires such obedience, and the bedrock principle of civilian control have thus far overwhelmed realistic considerations that some orders are unlawful and therefore must be disobeyed.

• Our allies by and large have been beaten into submission by the imposition of crippling, retaliatory tariffs; concerns about the need for U.S. protection in the face of Russian aggression; the United States’ actual and threatened departure from a number of international organizations; its refusal to fund those organizations and others;and even, shockingly, threats to invade their territory (e.g., Greenland/Denmark).

• Despite the many Americans who disapprove of the president’s handling of many issues, his core supporters have not wavered. 

In other words, the president believes he can do essentially anything he wants because he has created the conditions whereby, as he famously said in 2016 when he decided to run for president, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.” 

Since the law is no longer a reliable gauge to measure this administration’s actions, we former JAGs must find new ways to examine, protest, and talk to our fellow Americans about this administration’s flagrant and accelerating misuse of the armed forces. 

To be clear, we are not abandoning our efforts to rebuild the military’s legal guardrails; they are the essence of a functioning democracy and reflect the core values of the Constitution we all swore to support and defend. We must simply place a greater emphasis on the “military” aspects of our military law experience to argue that the military consequences of the ways our armed forces are being used are as important as the legal consequences. And we must explain why those legal consequences matter, not just what the law requires.

How to Talk About Why the Law Matters

This administration has developed a knack for effectively minimizing the importance of the law while violating it. To them, the ends appear to justify the means. We need to talk about why the law is the best means to a fair and just outcome supported by all. That is, we must explain why legal compliance is important; we must highlight that the law is a tool, designed for ends such as preventing World War III, reducing suffering in war, or ensuring a limited U.S. government versus an authoritarian state. It reflects common American values, and it also promotes our common interests.

In the Iran war context, adherence to the Constitution and respecting our UN Charter obligations would have averted this extremely costly and destabilizing war altogether. And once begun, abiding by the law of armed conflict during war will reduce human suffering during hostilities; it can also help avoid escalation driven by revenge, and adherence helps maintain our service members’ moral compass, avoiding moral injury. Adherence to the law of the sea will protect maritime traffic through the Strait of Hormuz, thereby preventing oil prices from spiraling out of control. In other words, adherence to the law prevents bad things from happening. 

Unfortunately, because he is unwilling to listen or his advisors are unwilling to tell him things he doesn’t want to hear, the bad things that are happening when this president breaks the law are happening to all of us. Lives are lost. Billions of dollars are wasted. Munitions stockpiles are depleted. Ultimately, when arguing for the law fails, we must focus on the consequences.

To us, honor has always been at the core of military service. We need to inform our fellow Americans that this administration’s concept of “warrior ethos” may include “maximum lethality,” but it excludes the concept of honor. Our military may follow the orders they’re given now, but unless they act honorably, both they and our nation will look back with shame on the acts we undertake today. At bottom, compliance with law is a core pillar of what it means to act honorably in military service. It is what separates professional militaries from those with weak force discipline and a degraded moral code. 

What Comes Next for the Military

We must become more alert to what may come next. The president will continue to act as if the law does not matter unless conditions on the political playing field change. Elections present the only real opportunity to change those conditions. The president knows that. He has mused on multiple occasions that he might do something to influence the outcome of the midterm elections or perhaps prevent them from occurring at all. As former JAGs, we must do what we can to prevent the military from being used as a thumb on the scales of an election.

We who have served in uniform are proud to have been the good guys. Duty, honor, and country meant and still mean everything to us. Suggestions that our country might attack a target “for fun” or that our troops must give “no quarter” to the enemy are not only shocking, they reflect a view that the lives of military men and women (never mind those of the enemy) can be sacrificed for sport or that those same men and women are indifferent to the death and destruction they are called upon to inflict.

We who served refuse to sit in silence while American democracy and the core values of its armed forces are dismembered.