Absence of consequences
Congress will investigate a double tap strike in the Caribbean. What then?
Julia Ioffe takes up—and handles well—a problem that vexes me over this whole “illegal orders” thing in reference to a double tap strike on a Venezuelan boat in the Caribbean Sea. She writes, in part, “both retired judge advocates [Rachel VanLandingham and one unnamed] expressed frustration with the six lawmakers who called on servicemembers to disobey illegal orders in general. In the U.S. military, they explained, the starting assumption is that every order is legal—and the burden of proof is on the dissenting servicemember at their court martial. ‘It’s equivalent to a felony trial,’ the retired Marine judge advocate said. ‘You have to be willing to disobey on principle, and you have to be able to withstand the pressure of the entire Defense Department. It creates a powerful incentive for obedience.’”[1]
I’m trying to imagine a soldier in a foxhole, with their lawyer along, evaluating every order for illegality and defensibility. But it’s worse than that: “Military personnel involved in such a strike, for example, would also have been bound by the Justice Department’s Office of Legal Counsel, which outlined the legal rationale for conducting the boat strikes in a still-secret memo. ‘Those are given the force of law inside the executive branch,’ said the [unnamed] retired Marine judge advocate. ‘It’s practically given as much weight as a judicial decision. People have to be entitled to rely on that. If you’re a tactical unit commander and you’ve received your order, you kind of have to assume that it’s gone through the wickets and that the policy stuff has been worked out.’”[2]
Which is great until it isn’t—which could be a very long time. It’s not like there’s a practical possibility that a U.S. Navy seaman is going to wind up in the Hague since the U.S. is a rogue state that refuses International Criminal Court jurisdiction.[3] And as Barack Obama demonstrated in refusing to prosecute the war crimes of the George W. Bush administration,[4] Democrats want to preserve a “freedom” to commit those same crimes themselves. So even if, despite their seeming determination to remain in opposition where they can complain about the Republicans without ever actually being expected to accomplish anything themselves, the Democrats win the presidency in 2028, it’s not like they will enforce accountability.
Still, for the moment, the heat is on as Congress investigates and war crime allegations—not yet, if ever, prosecutions—fly.[5] We shall see if anything comes of it.
[1] Julia Ioffe, “A Few Bad Men,” Puck, December 4, 2025, https://puck.news/boat-strike-blame-games-is-hegseth-in-trouble/
[2] Julia Ioffe, “A Few Bad Men,” Puck, December 4, 2025, https://puck.news/boat-strike-blame-games-is-hegseth-in-trouble/
[3] Leila N. Sadat and Mark A. Drumbl, “The United States and the International Criminal Court,” Washington and Lee University School of Law, July 28, 2016, https://scholarlycommons.law.wlu.edu/wlufac/504/; Donald Trump, “Imposing Sanctions on the International Criminal Court,” White House, February 6, 2025, https://www.whitehouse.gov/presidential-actions/2025/02/imposing-sanctions-on-the-international-criminal-court/
[4] Glenn Greenwald, “Obama's Justice Department Grants Final Immunity to Bush's CIA Torturers,” Global Policy Forum, August 31, 2012, https://archive.globalpolicy.org/international-justice/general-articles-on-international-justice/51931-obamas-justice-department-grants-final-immunity-to-bushs-cia-torturers.html
[5] Nick Turse, “Entire Chain of Command Could Be Held Liable for Killing Boat Strike Survivors, Sources Say,” Intercept, December 2, 2025, https://theintercept.com/2025/12/02/hegseth-boat-strikes-war-crime-venezuela/