‘Trust us’ is no excuse for the Pentagon’s deadly boat strikes

Written by Steven Lepper and Eugene Fidell

Originally published by Boston Globe: Here

Steven J. Lepper is a retired major general in the US Air Force, where he served as deputy judge advocate general of the Air Force. Eugene R. Fidell served as a judge advocate in the US Coast Guard and is a visiting lecturer at Yale Law School.

On Oct. 4, the US military announced that it sank another alleged narcotrafficking boat in the Caribbean Sea and killed its four occupants. The death toll in what the Pentagon calls “Operation Southern Spear” now exceeds 230 people aboard 75 vessels.

As with all the previous boat strikes, the Pentagon produced no evidence that the latest targeted vessel was actually carrying drugs. This operation has been sold as an effort to curb illegal drug trafficking into the United States, but it has gone far beyond normal law enforcement in its reckless use of lethal firepower. As a practical matter, the boat strikes can be seen as a prelude to subsequent events including, most notably, the attack on Iran. In a way, they were a form of grooming the public to view the aggressive use of military force as normal. Whatever the intent, they are plainly not over.

Not only have these boat strikes lacked public proof that the vessels were actually transporting drugs, the American public still has not seen the Department of Justice Office of Legal Counsel legal opinion that is said to justify the strikes. Despite congressional calls for disclosure, the Pentagon has similarly yet to release the Legal Counsel opinion on the United States’ attack on Iran — “Operation Epic Fury.” In sharp contrast, the administration did release a heavily redacted document upon which its capture and arrest of Venezuelan president Nicolás Maduro and his wife — “Operation Absolute Resolve” — were based.

Many legal scholars believe some or all of these three operations violate US law, international law, or both. The Maduro opinion has been harshly criticized as more of an exercise in advocacy than the kind of rigorous legal analysis one would have expected in the past. Perhaps the administration is withholding the Office of Legal Counsel’s review of Epic Fury and Southern Spear to avoid similar criticism. The Counsel opinions are the official expression of an administration’s legal position, so secrecy about them is indefensible where, as here, matters of life and death turn on their content. Because the shrouds of secrecy and deception cloaking all three of these operations may never be pierced, our military marches down paths of questionable legality without knowing whether the orders they are following are in fact lawful.

Not only has the administration withheld its legal rationale for attacking alleged narcotrafficking boats and killing their crews, it has provided no substantive discussion of the extent to which the individual attacks have complied with the law, achieved the operation’s objectives, or explained why these boat strikes are even being conducted at the same time that the Coast Guard is continuing its proven-effective normal law enforcement interdiction operations.

For example, the inspectors general of the defense and state departments have produced two joint quarterly reports to Congress, but in them, rather than addressing the criticisms that have been leveled at the operation or describing the effectiveness of the strikes, these reports, which can be found here and here, are little more than a bibliography of DoD and media press reports.

Because the DoD has either failed or refused to provide Congress and the American people a full accounting of the legal basis for the boat strikes, it has become increasingly imperative that the courts order the release of the boat strikes opinion, especially as those strikes continue.

Last December, the American Civil Liberties Union and other organizations sued for release of the documents under the Freedom of Information Act. A week ago, federal district judge Paul Engelmayer ordered the Pentagon to produce the boat strikes opinion so that he can determine whether or not to further order its release. The administration has asserted three claims of privilege — the “deliberative process” privilege, the more familiar “attorney-client” privilege, and the narrow “presidential communications” privilege — all in order to avoid having to release the opinion to the public. Judge Engelmayer rejected the first two privilege claims; he wants to review the actual Legal Counsel opinion to determine whether the third claim is valid.

As former military lawyers, we add our voices to those of the ACLU and others that have demanded release of the Office of Legal Counsel opinion. For two years, we and many other former and retired judge advocates — uniformed military lawyers who advise commanders — have reminded military personnel that they have duties to obey lawful orders and disobey unlawful ones. For the boat strikes, it has become impossible to distinguish between the two duties because the message from senior Pentagon leaders has been “trust us, the orders you’ve been given are legal.”

“Trust us” isn’t sufficient justification to kill more than 230 people and spend upward of $820 million in the process. We hope Judge Engelmeyer will compel the DoD to release the opinion to the plaintiffs. Only then will this administration be forced to lift the shroud of secrecy and deception that has, for too long, prevented the American people from understanding why our nation is killing civilians in boats and our military from knowing why orders to kill civilians are now lawful.