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When I was an infantryman in the U.S. Army, my leadership drilled a lot of different ideas into my head, from never leaving my post to “keeping my head on a swivel” to never leaving a fallen comrade behind. Pretty high up there in ideas I heard over and over again was that if I ever “double tapped” a wounded combatant (fired on them again after they had already been incapacitated or otherwise neutralized), I would probably go to prison. When I first deployed during the troop surge in Iraq, I was a 20-year-old with just a high school diploma—no one could have mistaken me for a legal scholar. But while some of the situations I ended up in were complex and difficult to navigate, I was trusted to at least understand that unjustified violence was illegal and that any time I fired my weapon, I had better be ready to justify my actions. I was also briefed multiple times on my duty to disobey unlawful orders.
The Trump administration has clearly had some trouble with this idea—or, more likely, utter contempt for it. Defense Secretary Pete Hegseth seems to be an outright enemy of the typical rules of engagement, professing to view them as handcuffs. In his first term, at then-TV-host Hegseth’s urging, President Donald Trump pardoned multiple adjudicated or accused war criminals. Now in his second term, Trump has gone from pardoning war criminals to making war crimes official policy.
Since Sept. 2, Trump has authorized strikes on multiple small boats in the Caribbean Sea and eastern Pacific Ocean, killing at least 83 people. The problem is that the U.S. is not actually at war with any of the people it has killed in these strikes. While Trump has declared Venezuelan drug smugglers to be terrorists and lawful enemy combatants, Congress has neither declared war on Venezuela nor otherwise authorized the use of force against drug smugglers. As Trump himself said when explaining that we would not seek an authorization for the use of force, “I think we’re just going to kill people that are bringing drugs into our country. OK? We’re going to kill them, you know, they’re going to be like, dead.” So already, these aren’t even war crimes, but rather straight-up murders.
Setting aside the illegality of the strikes, recent reporting showed that in the first incident, on Sept. 2, two people survived the initial strike. Even assuming these were legal strikes, the military’s obligation under both the U.S. Code of Military Justice and international law was clear: secure and treat the wounded and take them in as prisoners of war. Instead, Adm. Mitch Bradley reportedly ordered a second strike to finish off the survivors, citing Hegseth’s directive to “kill them all.”
When six Democratic lawmakers with military or intelligence experience released a video reminding service members of their right to disobey “patently unlawful orders,” Trump posted that it was “SEDITIOUS BEHAVIOR, punishable by DEATH!” Since then, the administration has been at pains to convince the public that any command he gives must be lawful.
It’s true that last year the Supreme Court granted Trump “absolute immunity” from criminal prosecution for any “official acts.” However, that same immunity does not apply to Hegseth, Bradley, or anyone else along the chain of command, down to the person pulling the trigger, and any of them could potentially be prosecuted for the killings under a future administration.
Fred Kaplan
If Trump Doesn’t Fire Pete Hegseth Now, It’s Going to Send a Message Heard Round the World
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Let me put this plainly, as both a lawyer and someone who once followed orders for a living: American service members have not been allowed to use “just following orders” as a defense for more than half a century. Prior to World War II, U.S. service members could assert a “defense of superior orders,” which would excuse even illegal conduct so long as the actions were in accordance with the orders. However, the Nuremberg tribunals after World War II established in international law that obeying an unlawful order does not absolve an individual of responsibility for atrocities. The Uniform Code of Military Justice, the legal framework governing U.S. troops, codified the same rule: a service member may refuse an order that is “patently unlawful.” Since the 1950s, every soldier, sailor, Marine, and airman has been trained on this point.
These regulations are not merely aspirational—service members have been and continue to be jailed for illegal uses of force, and the “just following orders” defense has never saved them. When Airman First Class Thomas Kinder executed a detainee during the Korean War, he claimed—and other airmen corroborated—that his commanding officer had said, “Take him out to the Bomb Dump and shoot him, Kinder.” It didn’t matter, and he was sentenced to life in prison.
When 2nd Lt. William Calley was tried on 22 counts of murder after ordering his platoon to kill between 350 and 500 civilians in the My Lai massacre in Vietnam, his defense pointed to his commander’s instruction to kill “every living thing” in the village. Following UCMJ guidance, the United States Court of Military Appeals affirmed Calley’s conviction and sentenced him to 20 years of confinement at hard labor.
When military prison guards at the Abu Ghraib prison in Iraq committed horrific abuses against detainees, some claimed that they were just following orders. Orders or not, 11 soldiers were convicted for their crimes.
Service members don’t get to choose their commanders. They don’t get to shape the political climate. They don’t get to decide which talking head is whispering in a president’s ear. But they are the ones who will face courts-martial and federal indictments if they cross the line. They are the ones who will live with the nightmares. They are the ones who will sit across from a lawyer one day and ask, “Sir, do you think I’ll go to prison?”
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Dear Troops: Please Don’t Go to Jail for Pete Hegseth
We are talking about murdering real people with real lives and families. The rules of engagement exist for a reason—unjustified killings are detrimental to the mission and, more importantly, morally wrong. The best decision I ever made in Iraq was the time I decided not to pull the trigger when I could have. It would have been justified based on what I saw, but something felt wrong. It turned out that the driver whose car I was worried was a vehicle-borne improvised explosive device was just someone not paying attention to our convoy after a late night at work. Because I held back, we both got to go home that night. We didn’t turn his family and friends against us, and I didn’t have to live with having killed someone who was just trying to live his life.
To every service member, every commander, and every political leader: If you commit a war crime—or an extrajudicial killing outside of an actual war—you can be prosecuted; if not by this administration, then by a future one. Please, do not condemn yourself to prison and a lifetime of guilt for Donald Trump and Pete Hegseth.
