"Kill All Crew Members": Margaret Donovan on Hegseth's Alleged Lethal Boat Strike Order

Originally from: The Contrarian

What happens when Secretary of Defense, in this case former Fox News host Pete Hegseth, potentially commits a war crime? Violates international law? Tries to proclaim a war not recognized by Congress? Former federal prosecutor and JAG officer Margaret Donovan joins Jen to provide invaluable insight and serious considerations into exactly that. In response to the recent Washington Post report on Sec. Hegseth’s alleged order to “kill all crew members,” Donovan breaks down how the military typically reacts to situations like this. The pair discuss the incompetence of the Secretary, possible paper trails that will make way for accountability, and consequences of bumbling and bloodthirsty leadership. Margaret Donovan a Visiting Clinical Lecturer in Law at Yale Law School and a practicing attorney. She served as the Assistant United States Attorney for the District of Connecticut for six years and as a Captain in the Judge Advocate General’s (JAG) Corps. Jen Rubin Hi, this is Jen Rubin, Energy Chief of The Conturion. I’m delighted to have Margaret Donovan, who is a visiting lecturer at Yale Law School. She is also a former drag and former federal prosecutor. Welcome, Margaret. Margaret Donovan Hi, Jen, thank you so much. Jen Rubin Oh, it’s my pleasure to have you. When you first saw the report in the Washington Post, what was your initial reaction? Margaret Donovan Well, my initial reaction was, we need more information, this needs to be investigated, we need to figure out a lot of the details that… for very good reasons, could not or were not disclosed to the post. A lot of that derives from classified rules of engagement and what was, you know, who was in the kill chain, so to speak. But having said that, my other initial reaction was. something must have gone pretty bad on this strike. If you have members of the JSOC community, that’s the Joint Special Operations Command, notoriously tight-lipped and, you know, they will circle the wagons on the press and on the public generally, if you have people from that community Talking to reporters about something along these lines, it must be… Pretty bad and pretty upsetting for the people that are, you know, that are reaching out like that. Jen Rubin One of the things we’ve seen in the last day or so is a distinct effort, it seems, from the Secretary to shift responsibility down the chain of command. This is not unusual, but it’s regrettable. First of all, how does the military in general react to such a thing? And secondly, is this gonna work? Is he going to be able to escape responsibility, for this, not only this particular strike, but the operation as a whole? Margaret Donovan On your first question, how does the military react, I can tell you that soldiers are not dumb, and they understand when people are being thrown under the bus. Admiral Bradley may very well have exposure here if he followed a patently unlawful order, if he issued a patently unlawful order. But they understand when somebody like Pete Hegsef who has… not a single iota of leadership, or character or any of those qualities. He is recognized to be horrendously unqualified for the position that he’s holding. They recognize bad leadership when they see it, and I think that that is what they are seeing happening. They have a four-star general. Holsey, who left the post, he was very well liked at Southcomm, he was the Deputy Commanding General there before he left, so he had been there. He was not new, he had been there for many years, he had just pinned his fourth star. You have Admiral Bradley, fourth star. lived his whole career in the JSOC community. He is known and well-liked, and then you’ve got the Fox News anchor that thought being sec deaf was gonna be a cool job, and you see him, first of all, putting these people in these operations in the Caribbean, outside of Venezuela. In an operation that is on… Questionable legal standing and legal authority. And so you’re already in the scenario, even before we learned of the September 2nd strike, there was significant discourse about whether or not we had justification to be there, and if we don’t, is what is happening murder? Can that be charged domestically under domestic murder statutes, Title 18, United States Code 1111? And, on top of that now, you have the very first strike of this highly unusual operation happen. And the person who is supposed to hold the bag on it, the person who… the… where the buck is supposed to stop. comes up with this cockamamie excuse of, well, I left the room and I didn’t… I didn’t see the whole strike. That is just a little too, convenient to me. So I, I think that the military sees this, For what it is. And then, I think that… what was the second part of your question? I’m sorry, I’m already forgetting it. Jen Rubin Is it gonna work? Is he gonna be able to avoid responsibility, or are there too many eyes and too many, written, and, single communications for him to evade responsibility? Margaret Donovan Yeah, and I apologize, my short-term memory’s getting worse as each of these days goes on. Yeah, I think it is gonna work for Hegsef. I think he’s gonna evade responsibility, not because he is going to be able to say the buck doesn’t stop with him, it does, and like… You better believe that Hagseth, who knows virtually nothing about airstrikes, he thinks it’s something cool to text about on a signal chat with his friends. wanted to claim all of the responsibility for this campaign with Donald Trump. So, I am sure there is a paper trail of him claiming to own this, and this is his thing, and he gets to go tell the president about the operations he’s doing to battle these so-called terrorists. But I don’t think he’ll evade responsibility in the context of a, you know, military chain of command in order, stops at Bradley. I think it will be in the context of Trump pardoning him. I think that even if there is some, conviction later on that happens under the Trump administration, or not. It could be a pardon before a criminal trial, sort of like a… what we saw in the last administration, sort of a looking back pardon for anything that has happened. I think that is probably the more likely way that HEGSF avoids responsibility for this. Jen Rubin take a step back, and that is there is apparently an OLC memo. Office of Legal Counsel is sort of the office within the Justice Department that tells the administration whether something’s constitutional or not. that purports to justify this as a military operation. for a military operation to be legal, there has to be an armed conflict of some type. Do you think there is an armed conflict, and do you think this is a legal military operation. Margaret Donovan Of course there’s not an armed conflict. There’s been a lot made about, you know, whether or not the people on the second strike on September 2nd were still in combat, and whether they could, you know, actually… I don’t even know some of the hypotheticals that have been posed, but could they have called for a rescue mission, which means, actually, that proves that they were shipwrecked, nevertheless. Typically when you are seeing an analysis of whether or not somebody is in combat or not, such that you can continue to target them. you are looking for, are they reaching for a weapon? Are they firing at somebody? Are they wearing an S-vest? That’s a suicide vest? That was a common tactic in Iraq and Syria used by the Islamic State. So, you would look to see, are there instances where this person can still have a lethal effect on friendly forces. And I say that as somebody, and I know we talked about this the other day, I say that as somebody who spent two combat deployments doing nothing but airstrikes in Iraq and in Syria. And this was day in and day out. You would launch a Hellfire at somebody, and you would be surprised how many people can survive a Hellfire missile. And you have to stay on that target and see whether or not they’re still directly participating in hostilities. Not only do you not have that here on the September 2nd strike, because nobody was armed. you don’t have it, as near as I can tell, anywhere. I don’t think any of these boats are armed. So you cannot say that we are in an armed conflict if you’re… purported opposing force is unarmed. Now, I understand that, Gazer’s opinion, who, by the way, I think is 36 years old, he’s the, OLC attorney. has never put on a uniform or deployed to combat in his life. I understand that his opinion on this… nobody actually really understands it, much of it is still classified, but they are calling this a non-international armed conflict. Against cartels. out of one side of their mouth, out of the other side of the administration’s mouth, we are discussing how we, how Maduro, who’s a state actor, of course, is the… head of our opposition, and if we engage in land operations, then this is, of course, going to be a state-on-state conflict. It’s going to be against the Venezuelan army. So their legal opinion was one of my, I won’t name them, but a friend who is Currently serving, described. It is as if you put in a bunch of facts into ChatGPT and asked it to spit out a legal opinion about the law firm conflict. It kind of names, you know, it’s a NIAC, I heard… I saw reporting about chemical weapons at some point, and self-defense, and collective self-defense. I understand it’s just sort of cobbling together a bunch of semi-justifications for hostilities, none of it adds up with the facts. And the facts right now as we see them is that these are a bunch of drug mules who are being targeted with military-grade lethal force. And I’ll tell you, in the context as a former federal prosecutor who used to do narcotics investigations. I can’t tell you the number of times we had a drug mule who we didn’t even end up prosecuting. And as I understand it now, on good authority out of current DOJ personnel. even drug mules in the United States that are bringing drugs in, over the border and caught, even with significant amounts, we are not even wasting the time prosecuting them, because we want to deport them, because we want to get our immigration numbers up. So… I mean, the conflict there is stunning, and I’m going to put something out here that’s kind of a morbid thought, but I think that it’s worth thinking about. you see the level of drugs that are on these motorboats in the, Venezuelan coast. you see that level of drugs coming in every day in the United States. That is like a Tuesday in Del Rio, right? So… The idea that if somebody were to drive a truck across the border, and they get stopped by police, and the police find Kilos in the back… of cocaine, in the back of the truck. And instead of arresting the person, they just hold a gun to their head and shoot them, point-blank range. That’s insane, right? We would never allow that. That is completely outrageous, to think that you could just kill somebody for the mere fact of transporting drugs. Putting aside that most of these mules, these are… these are lower-level people. These are expendable people to cartels. This is somebody who wants to make 500 bucks to go from A to B. Maybe they know what’s in the truck, they probably know what’s in the truck or the boat. But they’re willing to do it for some cash, and the cartels don’t give a damn if they ever come back. So we’re not really making a huge difference to the cartels. What makes a difference to the cartels is interdicting their product, is taking it away from them. Sure, you could do it by launching four Hellfires at a boat, or you could just do what we’ve been doing for decades, and use the DEA and the Coast Guard to interdict it, and either arrest the people or repatriate them back to their countries. So it just… nothing here adds up, and so even before the September 2nd strike. You are trying… you, meaning the administration, is trying to… Force this into becoming an armed conflict when it absolutely is not one? Jen Rubin One of the things that the administration throws around, as if this is some significant fact, is, well, this was on the high seas. As a legal matter, does that make any difference? Margaret Donovan Well, as a legal matter, it puts you in the special maritime jurisdiction for a Title 18 charge for murder, so I suppose… I suppose if that’s the position that they’re taking, then that’s a good one. I, you know, I don’t see any relevance to that other than now we have federal jurisdiction for a homicide charge. Jen Rubin Right. One of the other factors in all of this, of course, is that Congress hasn’t played any role. And although we have gradually seen the expansion of Article II powers, and every president has seen to take military action of one type or another, this sort of sustained offensive action, does, smack of, a declaration of war, which we haven’t had. Talk to us a little bit about, Congress’s role, or lack of role, and, Understanding that presidents don’t necessarily recognize that the War Powers Act is constitutional. Congress’s ability to restrain this if they see something going amiss, and to either use the power of the purse or the War Powers Act to insist that the troops be recalled. Margaret Donovan Yeah, so… only Congress can declare war. That is, in Article 1, that’s pretty bad rock. I think… I remember seeing reporting, and I’m, you know, this is months ago now, so it could be out of date, but I remember seeing reporting that the President actually initially did invoke the War Powers Act when he started these strikes, and then basically said, never mind, just kidding, I don’t need to respond on that deadline, which I think was something 60 days, and completely come off of it. So I think Congress’s rule here which we’re seeing play out is oversight and, if necessary, impeachment, once we have all of the facts. And I am actually really encouraged by the bipartisan outrage here, and it is either America finally asserting itself and waking up and realizing all that we have to lose? I mean, one of our greatest strengths Is our military excellence, our military prowess, and our firepower, and our reputation nationally, as As a superpower in, if nothing else, in the military realm. And to see that fall away, and to degrade ourselves down to being basically the Wagner Group, with the way that we’re conducting this stuff. it’s encouraging to me that we’re finally, you know, maybe this is it, maybe this is when people realize we can’t lose this, we can’t go this far. Or maybe these are just our last gasps at, you know, trying to maintain the America that we were. I certainly hope it’s the former. But I… I have a lot of hope that Congress does something here, and they have a lot of power, they have some muscle that they haven’t been flexing, as we are all pretty aware. And… For the sake of service members that are involved in these operations. I really, really hope that Congress performs its function here and provides the oversight and the corrections needed for this. Jen Rubin And what you just said, I think, is important to expand upon. This is for the benefit of the military folks who are there. If we allow this to go on, then they are going to be constantly put in a position of committing potentially either war crimes or, civilian, legal, offenses, and they need, the restraint from Congress because they’re not getting it from within their own chain of command. Margaret Donovan Absolutely, and look, that statute that I just cited to you, that was the federal homicide statute, there’s another one, 18, Title 18, United States Code Section 2441, that is a domestic Title 18 Penal Code statute for war crimes, and It is punishable by death, as is the first statute that I mentioned, murder. The war crime statute is punishable by death if you have committed a grave breach of Common Article III of the Geneva Conventions, which is what we have here. So… those crimes do not have statutes of limitations. They can be, you know, prosecuted in the next administration, they can be prosecuted in 5 administrations. If you are asking American soldiers to take another’s life. And I say this with a lot of somberness and sobriety, having, as I said, been on multiple deployments. Where we were asked to do exactly that, day in and day out. You have to provide them with ironclad legal authority to do that. They should not be wondering. is… are we on weak footing here? Is there going to be another administration that comes in and pokes holes through this flimsy legal analysis? We owe that to them. If we are going to ask them to do something as serious and as grave as these lethal operations. We owe that to them, and so that is what I hope Congress can do, is to make sure that we are either providing that to them, or we are calling these operations off. Pete Hagseth is not a serious person. He cannot be trusted to make these decisions, and so some adults need to come back in the room as soon as possible. Jen Rubin Unfortunately, we don’t have that leadership either in the Defense Department or in the Justice Department, which churned out this order. So, at this point, it doesn’t seem that we have a ready remedy. these people are not going to be indicted, not by this Justice Department. It’s unlikely that the Pentagon of its own volition is going to start taking action of these people. Is this a matter of just simply waiting until these people are out of power before taking action, or is there something that can happen in the interim? You mentioned impeachment, which is always possible. Is there any other remedy that’s available at this point? Margaret Donovan Well, I hate to be negative, but I don’t know that there’s much besides what Congress flexing its muscle here. Obviously, we should vote people out who are going to stand by and let America degrade itself like this. But, you know, you and I know, we’ve said that in a number of different scenarios since January 20th, and so could this be the turning point? I sure hope so. But I do think that we are relying heavily on our elected officials right now to represent us and our opinions. And again, I think that we owe that to the people in uniform. Jen Rubin One final question. Obviously, people have been killed. They have family members, they have dependents. What about civil remedies, against the United States, or against the individual servicemen who killed their loved ones? Is that possible, and where would that have jurisdiction? Would it be in the United States? Would it be in some international forum? Would it be in their home country? Margaret Donovan Yeah, well, I just saw today, there was a story that somebody’s going to be invoking the alien tort statute to seek civil liability on behalf of a family member, so that is certainly one avenue domestically. Of course, the U.S. will not submit itself to jurisdiction in The Hague. Nevertheless, we should still be concerned about third parties seeking… or third-party countries, I should say, seeking justice here. And what I have been trying to explain to, people who are still in uniform and people who have reached out with concerns about this is you may not care right now, today, that Ecuador has a warrant for your arrest, or Colombia has sought for your extradition. But when you begin to travel 5 years, 10 years, 15 years from now, and you go into a country that you don’t realize is going to scoop you up when you’re on vacation pursuant to an international warrant out of one of these countries. That is a lifetime of criminal liability in many of these countries, and so that is something that should not sit with these soldiers for the rest of their lives. So I, again, I’m… and I certainly recognize that there are people who have died here, and they should have legal recourse, And it should be available to them. But I also worry, and this is just in my heart of hearts as a former military lawyer, I worry about the people in uniform and their own liability that they have been more or less forced to bear by virtue of being assigned to these operations. Jen Rubin Margaret, I can’t thank you enough. This is, fascinating and horrifying all at once, and I’m sure you didn’t count on your background, in this particular field, coming to the fore in such a visible way. But thank you, and I certainly hope that the congressional committees consult with attorneys like yourself and your colleagues, so that they know what to look for, and they know what questions to ask. So thank you. We’ll look forward to having you back as this, entire escapade unfolds. So, thanks so much. Margaret Donovan Absolutely, thank you.