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department of defense
Pete Hegseth's Holy War
The US now finds itself in a long-term war waged by an angry, fanatical Fox journalist, not a competent secretary of defense.
Mar 20, 2026
Pete Hegseth is carrying out a Holy War at the Pentagon and abroad. He has rightly come under fire for incompetent leadership and mediocre management of the Iran war. The war was a mistake in the first place, both because Iran did not pose an immediate threat to US interests, and because President Donald Trump assumed a rapid victory and regime change would secure oil for the US and its allies for decades to come. But motivated by Christian Nationalism, fueled by angry masculinity, and blinded by ideological certainty, Hegseth’s crusade was doomed to failure from the start. Within the Pentagon, the battle against “woke” ideas and diversity has shaken leadership and hurt morale.
On the international front, Hegseth’s religious conviction about the immorality of Iran’s Islamic leadership led him to the conclusion that his god would protect the US in any war. Yet devoid of real goals and plans, motivated by ignorance about Iranian society, and discarding the intelligence community’s dire warnings about the chances of failure, Hegseth pushed on. The US now finds itself in a long-term war waged by an angry Fox journalist, not a competent secretary of defense.
The Crusader
Hegseth’s worldview is steeped in mistaken views of the 11th century Crusades, infused with white male privilege, and seasoned with ideology rather than intelligence briefings. Hegseth developed his views at Princeton University where he studied politics. He became a frequent contributor to and publisher of the Princeton Tory, the school’s conservative newspaper. In his writings he “strived to defend the pillars of Western civilization against the distractions of diversity.” He attacked the university for encouraging and supporting “pre-marital sex, homosexuality, abortion, and a general hostility toward faith and religion.” He declared that “the homosexual lifestyle is abnormal and immoral.” He rankled at the buzzwords of diversity, tolerance, sexual liberation, and multiculturalism which he took to be anti-Western. He concluded that the university “has abandoned almost all its moral/truth-seeking guidance to undergraduates.”
Hegseth took advantage of Reserve Officers' Training Corps funding for his education at Princeton, seeking to overcome the dangers of multiculturalism by becoming a soldier of god. After graduation he joined the Army National Guard, becoming a major, and was deployed three times abroad earning two Bronze Stars. Hegseth’s tattoos carry his Christian nationalism for all to see: a Jerusalem cross on his chest, a Christogram here, a “Deus Vult” (“God Wills It,” a Crusader battle cry) there, an American flag here, crossed muskets there, and other grotesque inkings common in violent far-right communities.
Hegseth failed to understand that technology alone does not win a war, nor does his insistence on the elimination of “wokeness” in the Pentagon.
Hegseth’s holier than thou attitude about the need to wage war on “wokeness,” Islam, and other evils was hardly tempered by a whistleblower report on his tenure as the president of Concerned Veterans for America (CVA), from 2013 until 2016, which describes him as being repeatedly intoxicated; sexually pursuing CVA female staffers; creating a hostile workplace; and drunkenly chanting in public, “Kill All Muslims! Kill All Muslims!” A history of alcohol and sexual abuse suggests an individual unfit to lead the Department of Defense (DOD), and in fact Hegseth was forced out as chief executive of CVA amid allegations of financial mismanagement, sexual impropriety, and personal misconduct.
Hegseth’s certainty that white males must control society seems confirmed by a string of abusive acts. His former sister-in-law claims that his second wife feared for her personal safety during their marriage, and often hid in a closet. She herself experienced an angry, intoxicated Hegseth screaming in her face. Claims of rape against Hegseth in 2017 did not result in charges against him, but did result in the future DOD secretary paying the woman in question a $50,000 settlement. His own mother, Penelope, sent him an email that said: “You are an abuser of women—that is the ugly truth and I have no respect for any man that belittles, lies, cheats, sleeps around, and uses women for his own power and ego.” Married three times and fathering a child out of wedlock, Hegseth said, "I have failed in things in my life, and thankfully, I'm redeemed by my Lord and Savior Jesus Christ.” Ultimately, Hegseth found salvation in the narcissism of Donald Trump. In 2017 Hegseth became co-host of "Fox & Friends Weekend." He ingratiated himself to the president by incessantly promoting the lie that vot
er fraud had led to Trump’s loss in the 2020 election.
Purifying the Pentagon
Appointed secretary of defense by Trump, Hegseth announced, “We became ‘the woke department’… Not any more. We’re done with that shit.” He set out to purge the Pentagon of woke, gay, and transgender personnel that he believed weakened the US military. He said, “For too long, we’ve promoted too many uniform leaders for the wrong reasons—based on their race, based on gender quotas, based on historic so-called firsts.” Yet there were questions from the start about his own minimal “qualifications” as a Fox News host and Trump sycophant. In March 2025, only months into his Pentagon appointment, he risked the lives of US soldiers by proudly sharing classified war plans in unsecured communications with a journalist. Loyal to Trump, he kept his job.
Trump, who has no military experience, but four draft deferments and a FIFA soccer peace prize, began his second term by firing a distinguished F-16 fighter pilot, General Charles Q. Brown, Jr., as chairman of the Joint Chiefs of Staff. Hegseth followed along, carrying the president’s racist water by ending diversity, equity, and inclusion (DEI) programs in the Pentagon, and by purging defense department libraries and websites that addressed anti-racism and sexism. His racism carried so far as an order to stop classifying nooses and swastikas as hate symbols (this effort to permit Nazi symbols among the Coast Guard was abandoned). But his white Christian chest-thumping intensifying, Hegseth ordered the renaming of Navy ships that honored African Americans; the purging by Pentagon archivists of the biography of Jackie Robinson; and the removal of a picture of the plane that dropped the first atomic bomb on Hiroshima in 1945, the Enola Gay, because “gay” is forbidden.
Hegseth’s goal, he said, was to eliminate the “social justice, politically correct, and toxic ideological garbage that had infected our department.” There would be “no more identity months, DEI offices, dudes in dresses. No more climate change worship, no more division, distraction or, gender delusions, no more debris.” There would be no more fat soldiers, but only fit ones. And there would be no beards, “no more beardos,” only the paramount clean-shaven look of individual expression. Calling for Aryan purity, he said, “We don’t have a military full of Nordic pagans, but unfortunately, we have had leaders who either refuse to call BS and enforce standards or leaders who felt like they were not allowed to enforce standards.” Women could serve only if they could kill as effectively as Hegseth’s warriors. To mold these warriors, Hegseth determined to permit bullying and hazing “to empower leaders to enforce standards without fear of retribution or second-guessing.”
Why his anger at “beardos”? Hegseth said that anyone who needs a shaving exemption for more than a year would be forced out of the service. This ended a policy created mainly for Black and brown troops with pseudofolliculitis barbae, a skin condition that makes daily shaving lead to cuts, sores, and scarring. For Hegseth, “grooming standards” were commensurate with the “warrior ethos.” In the name of the warrior mindset, Hegseth extended his purge to women, gays, and transgender individuals. Hegseth eliminated the Women, Peace, and Security program at the DOD as “woke” and “divisive” although it is codified in a 2017 law that Congress passed unanimously and was signed by Trump. Hegseth’s Pentagon is now forcing transgender service members to leave in the name of military preparedness. (Hitler, too, despised homosexuality. He had Ernst Röhm and other gay SA members murdered in 1934 because of their "degeneracy"; the Nazi regime made the persecution of homosexuals a priority. Perhaps Hegseth studied the Wehrmacht at Princeton?)
White Christian Officer Training
US Ivy League schools, MIT, CalTech, Chicago and other universities were crucial to the US to wage the Cold War, strategize the arms race, and build radars and other weapons. But the anti-intellectual Hegseth decided to end officer training, fellowships, and graduate-level education programs at Ivy League and other top-tier universities starting in the 2026-2027 academic year because of their allegedly “woke ideology” and anti-American sentiment. He claimed the need to refocus “the US military on maximum lethality, warfighting, and accountability; prioritizing combat effectiveness, merit-based standards, and a direct, combative culture over political correctness.” He insisted that the DOD needs “more troops, more munitions, more drones, more Patriots, more submarines, more B-21 bombers… more innovation, more AI… more space, more speed.” And he believes he can achieve these goals by shifting programs to conservative schools that stress Christian nationalist thinking.
Toward those ends, Hegseth announced the elimination of several senior service college fellowship programs for the 2026-2027 academic year and beyond. He desired “strategic thinkers through education grounded in the founding principles and documents of the republic, embracing peace through strength and American ideals, and focused on our national strategies and grounded in realism.”
The failure of the Trump-Hegseth Holy War against Iran underlines the need to divorce religious beliefs from declarations of war.
What he meant by this was doctrine steeped in the ideas of limited government, free enterprise, constitutional originalism, and Christian morality. The new partner institutions included such conservative beacons of white Christianity as Liberty University (whose past president resigned in the midst of a sex scandal); Baylor University (whose past president ignored a campus rape scandal, helped Jeff Epstein avoid prosecution, and who investigated Bill Clinton over real estate deals and Oval Office oral sex at a cost of $52 million); Regent University (that has long pushed the Christian orientation of its founder, Pat Robertson, who called for letting LGBTQ advocates and Muslims kill themselves); Hillsdale College (whose president at the time of the Clinton infidelity was allegedly having a long affair with his daughter-in-law who then committed suicide); and Pepperdine University (which was long embroiled in a lawsuit over sexual orientation of students). The trainees will be ready for religious wars, if morally ambivalent.
War Crimes and Holy War
The failure of the Trump-Hegseth Holy War against Iran underlines the need to divorce religious beliefs from declarations of war. While the medieval Crusades had largely political-military significance for control of the Holy Land, such Christian nationalists as Hegseth have recast that history as a holy war against Moslem infidels. In the ongoing war that the US launched on the Islamic Republic, Hegseth emphasizes that the Christian god is on his side. He said: “Our capabilities are better. Our will is better. Our troops are better. The providence of our almighty God is there protecting those troops, and we’re committed to this mission.” He asserted that the Trump administration was carrying out hold battle against “religious fanatics who seek a nuclear capability in order for some religious Armageddon.”
Hegseth’s reliance on religious justifications—and his certainty that Trump expected a quick victory to distract Americans from the Epstein scandal—hurried the US into its attack. But there was no justification: Iran was not within days of deploying ICBMs or nuclear weapons, and was hardly prepared to attack the US. Indeed, negotiators on both sides were close to a US-Iran agreement to forestall nuclear weapons development—and recreate the agreement that Trump abrogated in 2018 in the first place.
The great danger, now realized, was that Hegseth confused personal religious and ideological imperatives with military need. The Nazis conflated Bolshevism, Judaism, and Slavic racial inferiority, hurried into a war with the USSR that Hitler expected to win within days or weeks, yet plunged the world into war. So, too, Hegseth mixes hatred of Islam, Iran in particular, with religio-spiritual embrace of the Christian Bible, Western civilization, and a sacred mission for Israel, in the end transforming a war against the Islamic Republic of Iran into a religious crusade.
Hegseth: Waging War with No Plans
Hegseth ignored real time challenges that, after initial “victories,” have left the DOD in a bind as to how to move forward. In the first two days of the attack, the US spent $5.6 billion in munitions: More than 2,000 munitions were rained down on nearly 2,000 Iranian targets. But the armaments are hardly in an unlimited supply, must be replaced, and it will take months to do so, especially for precision, smart weapons. This will leave the US vulnerable elsewhere in the world. Hegseth failed to understand that technology alone does not win a war, nor does his insistence on the elimination of “wokeness” in the Pentagon. Hegseth assumed that initial firepower would bring Iran to its knees, but he has only strengthened the resolve of Iran’s leaders to stand up to the US, and has even brought its oppressed people into some agreement with the theocracy.
Hegseth has worried so much about beards, DEI, and Holy Wars that he attacked Iran without minesweepers that the DOD decommissioned in the autumn. These might have opened the Strait of Hormuz to the world’s oil traffic, one-third of which passes through the Strait. And without allies—Trump’s odious behavior and policies have turned away even England, France, and Canada—the US is isolated in this war. It has little recourse to their stockpiles, let alone their minesweepers. How long will Hegseth—and his witless president—wait to ask Congress to replenish the Pentagon budget and secure more munitions to continue “the most intense strikes”? And how can Hegseth justify the fact that, when planning for his Holy War, he ordered the Pentagon to buy up tens of millions of dollars of steak and crustaceans in order to spend its budget authorization before the end of the fiscal year?
For Hegseth, who embraces quick, empty responses and has forgotten any analytical tools he may have learned in college, any negative comment is “fake news.”
The troubling subservience to Russian President Vladimir Putin’s war aims in Ukraine has handicapped the Hegeth and Trump Iran fiasco as well. Trump has both refused to condemn Putin’s support for Iran through intelligence sharing, military cooperation, and providing drone components and satellite imagery all of which are likely harming US soldiers. Russia is generally prolonging a war in the Middle East that benefits its closest Middle Eastern partner in the fight against the US and Israel. Trump has eased sanctions on Russian oil, which is permitting Putin to earn millions of dollars in oil revenues to fund his four-year-old invasion of Ukraine. Recall that in his first month as defense secretary, Hegseth endorsed Russia’s territorial occupation of Ukraine. At the very least, Hegseth is uninterested in Russian support for Iran.
Hegseth still promises in this war “intense strikes,” “the most fighters, the most bombers, the most strikes; intelligence more refined and better than ever.” He ridicules the Iranians as “desperate and scrambling.” Likely to justify the US murder of 180 children, he announced, “Like the terrorist cowards they are, they fire missiles from schools and hospitals... deliberately targeting innocents." The missile hit midmorning when children would certainly be present. Where is the Christian morality? Committed to a different Jesus than the one in the Bible, Hegseth told US soldiers to ignore legal advice about when they were permitted to kill enemy combatants under their rules of engagement. Hegseth smirked in couplets, “Maximum lethality, not tepid legality. Violent effect, not politically correct.”
What Has the War Department Wrought?
Hegseth, the former Fox News host, knows how to manipulate the messages to confuse the public. He uses press conferences to attack the media for their reporting on his and Trump’s war—from its initial justifications, to his overconfidence, to miscalculations regarding closure of the Strait of Hormuz, to faltering world oil supply, and to the massive unpopularity of the war as US deaths and costs accumulate. He might as well say to the American people, “Let them eat lobster.”
Into the third week, the Iran war has led to the deaths of at least 13 US service members and has burned through more than $11.3 billion worth of taxpayer dollars. The Persian Gulf has been plunged into chaos as Iran mounts retaliatory strikes against military bases and oil refineries in the region. But for Hegseth, who embraces quick, empty responses and has forgotten any analytical tools he may have learned in college, any negative comment is “fake news.”
The secretary of military propaganda admonished the press to learn the craft of Fox: “Allow me to make a few suggestions… I used to be in that business, and I know that everything is written intentionally, for example, a banner or a headline.” He called for right-wing takeover of CNN and other media. Pete needs one more tattoo: “What, me worry?”
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To Threat of Troop Deployment, Minneapolis Mayor Vows City 'Will Not Be Intimidated'
"The best way to get safety is not to have an influx of even more agents and, in this case, military in Minneapolis," Mayor Jacob Frey said.
Jan 18, 2026
Responding to the news that the Department of Defense had put 1,500 active duty troops on standby for a potential deployment to Minnesota, Minneapolis Mayor Jacob Frey had a clear message for the Trump administration: "We will not be intimidated by the actions of this federal government."
"This act was clearly designed to intimidate the people of Minneapolis, and here's the thing: We're not going to be intimidated," Frey told Jake Tapper on CNN's "State of the Union" Sunday morning.
The news of the troop deployment was first broken by ABC and confirmed to the Washington Post late Saturday night. It came two days after President Donald Trump threatened to invoke the Insurrection Act due to widespread protests against a major federal immigration enforcement operation in the Twin Cities that has already led to the death of legal observer Renee Good and the shooting and injuring of Venezuelan migrant Julio Cesar Sosa-Celis.
It is not certain that the soldiers, who belong to two Alaska-based infantry battalions, will actually be deployed. The White House said it was typical for the Pentagon “to be prepared for any decision the President may or may not make.”
"I never thought in a million years that we would be invaded by our own federal government."
However, if they were deployed, Frey told Tapper it would be "ridiculous."
He noted that there are already around 3,000 Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) officers in the area compared with around 600 local police officers.
"The best way to get safety is not to have an influx of even more agents and, in this case, military in Minneapolis," he said.
Frey told Tapper that the situation that Minneapolis found itself in was "bizarre."
"I never thought in a million years that we would be invaded by our own federal government," he said.
However, he praised the response of ordinary people in the city: "One of the beautiful things that's taking place is that the people here in Minneapolis are not just resisting. They're standing up. They're standing up for their neighbors, they're loving people, they're making sure that they've got a ride to the grocery store, a safe walk to their car. They're making sure that they have those basic necessities that they need, because we've got a whole lot of people who are afraid to go outside at the risk of getting torn apart from their own families."
"In the face of a whole lot of adversity, I'm so proud to be from Minneapolis. I'm so proud to be the mayor of this awesome city with these extraordinary people," Frey said.
The news of the potential military deployment came the day after the revelation that the Department of Justice was investigating Frey as well as Minnesota Gov. Tim Walz over their criticism of federal immigration enforcement operations in the Minneapolis area.
Frey also spoke out against this second form of intimidation.
"If it were true, the targeting would be the product of performing one of the most basic responsibilities and obligations that I have as mayor, which is to speak on behalf of our great city, speak on behalf of our constituents," Frey told Tapper. "And that the federal government would be going after me because of that speech should be deeply concerning not just for people in Minneapolis, but for anybody throughout the country."
In addition to a potential federal deployment of the military, Gov. Walz also ordered the Minnesota National Guard to mobilize on Saturday.
"They are not deployed to city streets at this time, but are ready to help support public safety, including protection of life, preservation of property, and supporting the rights of all who assemble peacefully," the Minnesota Department of Public Safety wrote on Facebook.
Tapper asked Frey if he was worried about a situation in which ICE, CBP, and the military might end up physically fighting with the Minnesota National Guard and local law enforcement.
"We can't have that in America," Frey answered, adding that he hoped the judicial system would step up to restrict the Trump administration from invading American cities. Already, a federal judge has ruled that ICE must not retaliate against, pepper spray, or detain peace protesters and observers in Minnesota, and there are other lawsuits pending against the deployment.
Frey also appealed to people across the country.
"I know that you love your town, regardless of where you are," he said. "And just imagine what it would feel like if you suddenly had an administration deployment of troops, of agents come into you city by the thousands, vastly outnumber the police department, and cause chaos on your streets."
Frey added that there was a very simple way for ICE to resolve the situation.
"If the goal here is to create peace and safety and calm, there's a very clear antidote here, which is leave," he said.
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Experts Agree: It Was Illegal to Follow Hegseth's Illegal Orders
Under well-established law, those who complied with the orders cannot escape individual criminal responsibility for the killing of the two survivors in the event they are brought to trial.
Dec 02, 2025
The question of when it is lawful for US military personnel to refuse an unlawful order has become a point of discussion in the political arena. Those conversations took a turn with the Washington Post and CNN reporting over Thanksgiving weekend that Secretary of Defense Pete Hegseth had issued a verbal order to “kill everyone” in the initial US military strike on suspected drug smugglers in the Caribbean, resulting in US special forces’ allegedly killing two shipwrecked survivors who were clinging to the wreckage of their vessel on Sept. 2, 2025.
In this article, we do not engage with the political discussion, but rather examine the law that applies to the alleged facts of the operation and Hegseth’s reported order. And with respect to the legal assessment of that operation, we will not be dealing with the broader question of whether the attack on the boat was unlawful as such, which it was (see articles published at Just Security by Marty Lederman; Michael Schmitt; and a podcast discussion with Tess Bridgeman, Brian Finucane, and Rebecca Ingber). Instead, we focus on a narrower aspect of the strike, the purported order to kill all aboard the vessel and the resulting second strike on the boat that killed the survivors.
As a matter of law, there are two central issues to address. The first concerns the circumstances in which military personnel have a duty to refuse to obey an order and, relatedly, whether a superior order can relieve them of criminal responsibility. The second is whether the orders in this case triggered that duty or provided those involved a defense. As both issues are context dependent, we begin with the facts.
The Reported Order(s) and Military Operation
Without rehashing the well-known and fairly straightforward reported chain of events on September 2, it is essential to understand that there were apparently two different orders in the military chain of command.
Secretary of Defense Pete Hegseth’s verbal order
The Washington Post reported:
The longer the US surveillance aircraft followed the boat, the more confident intelligence analysts watching from command centers became that the 11 people on board were ferrying drugs.
Defense Secretary Pete Hegseth gave a verbal directive, according to two people with direct knowledge of the operation. "The order was to kill everybody," one of them said.
Note that “Secretary of Defense Pete Hegseth had ordered the military prior to the operation to ensure the strike killed everyone on board, but it’s not clear if he knew there were survivors prior to the second strike, one of the sources said,” CNN reported.
Presumably, this order was issued to the US Special Operations Command’s Commander, Admiral Frank M. “Mitch” Bradley, raising the question of whether he had a duty to refuse it.
Adm. Bradley’s order to conduct the second strike
The Washington Post reported:
Two survivors were clinging to the smoldering wreck.
The Special Operations commander overseeing the Sept. 2 attack… ordered a second strike to comply with Hegseth’s instructions, two people familiar with the matter said. The two men were blown apart in the water.
Adm. Frank M. "Mitch" Bradley, told people on the secure conference call that the survivors were still legitimate targets because they could theoretically call other traffickers to retrieve them and their cargo, according to two people. He ordered the second strike to fulfill Hegseth’s directive that everyone must be killed.
This order implicates the duty of subordinate commanders and those executing the strike to refuse to comply with unlawful orders.
Following the strike, Hegseth told reporters, “We smoked a drug boat, and there’s 11 narco terrorists at the bottom of the ocean, and when other people try to do that, they’re going to meet the same fate.” Note that according to an earlier report by the New York Times, the targeted boat had “altered its course and appeared to have turned around before the attack started.”
The Duty to Refuse Unlawful Orders
From the perspective of those receiving them, unlawful orders raise two issues. The first is whether there is a duty to refuse them. The United States clearly imposes such a duty. In particular, the Department of Defense’s (DOD) Law of War Manual (2023) emphasizes the obligation, giving, as a paradigmatic example, an order to kill shipwrecked persons.
18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal.
The Manual cautions, however, that “[s]ubordinates are not required to screen the orders of superiors for questionable points of legality, and may, absent specific knowledge to the contrary, presume that orders have been lawfully issued.” But in clear cases, the duty attaches. As the Manual for Courts-Martial explains, the general presumption that an order can be inferred to be lawful “does not apply to a patently illegal order, such as one that directs the commission of a crime.”
An even more granular explanation of the duty to refuse unlawful orders is provided in the US Navy-Marine Corps-Coast Guard Commanders Handbook on the Law of Naval Operations (§ 6.1.3.2):
All naval personnel have a duty to comply with the law of armed conflict in good faith; prevent violations by others to the utmost of their ability; and refuse to comply with clearly illegal orders to commit violations of the law of armed conflict. Naval personnel have an affirmative obligation to promptly report violations which they become aware. When appropriate, naval personnel should ask questions through appropriate channels and consult with the command legal advisor on issues relating to the law of armed conflict. Naval personnel should adhere to regulations, procedures, and training, as these policies and doctrinal materials have been reviewed for consistency with the law of armed conflict. Commands and orders should not be understood as implicitly authorizing violations of the law of armed conflict where other interpretations are reasonably available.
These US duties track international law, for, as the International Committee of the Red Cross (ICRC) has asserted, under the law of armed conflict (LOAC), “[e]very combatant has a duty to disobey a manifestly unlawful order” (ICRC, Customary IHL study, Rule 154).
And refusal to obey an unlawful order is not an offense in the US armed forces. Under the Uniform Code of Military Justice, an offense occurs if the accused
(1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties (art. 92).
It is also an offense if a member of the armed forces “willfully disobeys a lawful command of his superior commissioned officer” (art. 90). Thus, the fact that an order is unlawful precludes conviction for its violation. So, although orders may generally be presumed lawful, if they are clearly unlawful, US military personnel have an affirmative duty to refuse them and may not be prosecuted for doing so.
No Defense of Superior Orders
The second issue raised by orders is whether they constitute a defense available to those acting unlawfully, but pursuant to them. It has long been the case under customary international law that “superior orders” is no defense for war crimes. The Charter of the International Military Tribunals at Nuremberg and Tokyo excluded the defense (arts. 8 and 6, respectively), as did the 1950 Nuremberg Principles (prin. IV). The absence of a superior orders defense has also been confirmed in the statutes of modern war crimes tribunals, including those of the International Criminal Court and the International Criminal Tribunals for the Former Yugoslavia and Rwanda (arts. 33, 7, and 6, respectively). Indeed, the defense is unavailable to international law violations generally. For instance, the United Nations Convention Against Torture and the Inter-American Convention on the Forced Disappearance of Persons prohibit superior orders as a defense in national legislation implementing their prohibitions (arts. 2 and VIII, respectively).
As with the affirmative duty to disobey an unlawful order, the ICRC has accurately stated that under customary international law, “[o]beying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.” (ICRC Customary International Humanitarian Law study, Rule 155).
US military law likewise rejects the defense of superior order in the Manual for Courts-Martial. Rule 916(d) provides, “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” The touchstone case reflecting the principle is US v. Calley, which dealt with the murder of 22 children, women, and old men in the South Vietnamese village of My Lai. Lt. Calley claimed he was obeying an order because “he had been taught the doctrine of obedience throughout his military career” and that he “was acting in ignorance of the laws of war.” The US Court of Military Appeals held that,
the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders.
The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.
Thus, it is unlawful to obey an unlawful order, and merely following clearly illegal orders provides no defense. This being so, the questions in the September 2 strikes are whether Secretary Hegseth’s reported order to Adm. Bradley was clearly unlawful and whether Bradley’s apparent follow-on order to conduct the second strike was likewise manifestly unlawful.
What Law Applied to the Reported Orders?
Much attention has been focused on the laws of war as they may relate to the Hegseth order and resulting operation. In that regard, we must emphasize that LOAC did not apply to the September 2 strikes, because, as has been explained in multiple Just Security articles referenced above, the United States is not in an armed conflict with any drug trafficking cartel or criminal gang anywhere in the Western Hemisphere. There is no international armed conflict because, inter alia, there are neither hostilities between States nor the requisite degree of State control over alleged drug cartels operating the boats. And there is no non-international armed conflict, both because the cartels concerned do not qualify as organized armed groups in the LOAC sense, and because there were no hostilities between the United States and the cartels on September 2, let alone hostilities that would reach the requisite level of intensity to cross the armed conflict threshold. For the same reason, the individuals involved have not committed war crimes.
However, the duty to refuse clearly unlawful orders—such as an order to commit a crime—is not limited to armed conflict situations to which LOAC applies. Nor is rejection of a defense of superior orders restricted to war crimes. In fact, the more restrictive rules of international human rights law applied instead. As will be explained, the alleged Hegseth order and special forces’ lethal operation amounted to unlawful “extrajudicial killing” under human rights law (see also here). The federal murder statute would also apply, whether or not there is an armed conflict. (See, e.g., Marty Lederman’s analysis).
That said, the administration has reported to Congress, stated publicly, and recorded in legal and operational memoranda that it believes one or multiple “non-international armed conflicts” exist between the United States and 24 organizations in Latin America (whether it views the situation as one armed conflict, 24 separate ones, or some other combination is unclear). This being so, before turning to the law that was actually violated through the September 2 and subsequent operations, allow us to counterfactually consider the law that would apply had the administration been correct in characterizing the operation as occurring during an armed conflict.
The Prohibition of Ordering Denial of Quarter or Denying Quarter
Assuming solely for the sake of discussion that there was a non-international armed conflict at the time of the September 2 strikes, the most relevant LOAC rule applicable to the Hegseth and Bradley orders is the “denial of quarter,” i.e., an instruction not to allow any survivors (see, e.g., Working Group of Former Judge Advocates Generals’ statement on the Hegseth order).
The status of the prohibition on the denial of quarter (and on ordering or threatening its denial) was settled well over a century ago. It is applicable in both international and non-international armed conflicts as a matter of customary international law (ICRC, Customary International Humanitarian Law study, Rule 46). This is so with respect to its status as a violation of LOAC entailing the responsibility of the State concerned and as a war crime by the individuals issuing orders to deny quarter or carrying them out. We need not repeat here the major international texts and tribunal decisions that support that conclusion. One of us (Schmitt) walked through all of the relevant texts, from the US Civil War’s Lieber Code to the present, in a 2023 essay concerning a “kill everyone” order by the head of Russia’s Wagner Group (coauthored with LtCol John Tramazzo).
Here, suffice it to note that the DOD Law of War Manual is categorical: “It is… prohibited to conduct hostilities on the basis that there shall be no survivors, or to threaten the adversary with the denial of quarter. This rule is based on both humanitarian and military considerations.” The Manual further emphasizes that the rule “also applies during non-international armed conflict” (§ 5.4.7).
A closely related prohibition implicated in the September 2 strikes, which also applies in both international and non-international armed conflict, is on attacking those who are hors de combat, a condition that includes those who are “defenseless” because they are shipwrecked (see ICRC Customary International Humanitarian Law study, rule 47 and related practice). As the DOD Law of War Manual explains (§ 5.9.4),
Shipwrecked combatants include those who have been shipwrecked from any cause… Persons who have been incapacitated by… shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack. In order to receive protection as hors de combat, the person must be wholly disabled from fighting.
The Commander’s Handbook on the Law of Naval Operations similarly provides, “Intentional attack on a combatant who is known to be hors de combat constitutes a grave breach of the law of armed conflict” (§ 8.2.3). Indeed, as noted in the Newport Manual on the Law of Naval Warfare published by the US Naval War College’s Stockton Center, Geneva Convention II
sets forth a legal framework for the humane treatment and protection of victims of armed conflict at sea. The Convention requires parties to the conflict to, inter alia, respect and protect individuals falling within the scope of the Convention “who are at sea and who are wounded, sick or shipwrecked.” Parties to a conflict are thus required, after each engagement and without delay, to “take all possible measures to search for and collect the shipwrecked, wounded and sick,” without discriminating between their own and enemy personnel.
To be clear, there is no exception to the prohibition on attacking those who are hors de combat due to being shipwrecked because they might escape or otherwise receive rescue assistance from their forces. The only basis for treating them as subject to continued attack is if they are, in fact, not hors de combat because they continue to fight.
Doctrine and Prosecutions on Denial of Quarter
This analysis of the LOAC rules merits being supplemented with three additional points. First, each US servicemember has an obligation to report evidence that any US operation potentially involved killing shipwrecked survivors or a denial of quarter. According to the Commander’s Handbook on the Law of Naval Operations (§ 6.3; see also DOD Directive 2311.01):
All military and US civilian employees, contractor personnel, and subcontractors assigned to or accompanying a DOD component must report through their chain of command all reportable incidents, including those involving allegations of non-DOD personnel having violated the law of war.
Examples of incidents that “must be reported” include: (1) “Offenses against the Wounded, the Sick, [and] Survivors of Sunken Ships,” such as “willfully killing”; (2) “Other Offenses against Survivors of Sunken Ships,” including, “when military interests permit, failure to search out, collect, make provision for the safety of, or to care for survivors;” and (3) “Denial of quarter, unless bad faith is reasonably suspected” (§ 6.3).
Second, a landmark 1921 case emerging out of World War I clearly set forth the rule that killing shipwrecked survivors of a boat strike is a war crime and that superior orders offer no defense to such conduct, because such orders must be disobeyed. In the Llandovery Castle case, the Imperial Court of Justice considered a June 1918 incident after a German U-boat sank the Llandovery Castle, a Canadian hospital ship. The U-boat Commander claimed he thought the ship was carrying American airmen. In convicting the defendants for firing on the survivors who were in lifeboats, the court noted that by that point, the international legal prohibition on killing survivors of a maritime attack was manifest.
The firing on the boats was an offence against the law of nations. In war on land the killing of unarmed enemies is not allowed (compare the Hague regulations as to war on land, para. 23(c)), similarly in war at sea, the killing of shipwrecked people, who have taken refuge in life-boats, is forbidden.
…
The fact that his deed is a violation of international law must be well-known to the doer, apart from acts of carelessness, in which careless ignorance is a sufficient excuse. In examining the question of the existence of this knowledge, the ambiguity of many of the rules of international law, as well as the actual circumstances of the case, must be borne in mind, because in war time decisions of great importance have frequently to be made on very insufficient material. This consideration, however, cannot be applied to the case at present before the court. The rule of international law, which is here involved, is simple and is universally known. No possible doubt can exist with regard to the question of its applicability. (emphasis added)
Accordingly, the court held that the German crew could not claim to be following orders as a defense because such an order would be clearly unlawful:
It is certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else but a breach of the law. … They should, therefore, have refused to obey. As they did not do so, they must be punished.” (emphasis added)
The DOD Law of War Manual cites and quotes the Llandovery Castle case to illustrate the point that clearly illegal orders must be refused (see DOD Law of War Manual, § 18.3.2.1).
Notably, in its sentencing assessment, the court stated that “the principal guilt rests with” the U-boat Commander who issued the order, while his subordinates could obtain some mitigation of sentence given the pressure entailed in refusing a military order.
Third, a famous World War II case involved a similar set of facts. In the 1945 Peleus Trial, a British Military Court sitting in Hamburg considered a March 1944 incident in which a German submarine sank a Greek ship chartered by the British Ministry of War Transport. Upon the orders of the German commander Heinz Eck, the U-boat members fired a machine gun and threw grenades at Peleus’ crew members who had survived the first attack but were shipwrecked in the water. The prosecutor and the judge advocate (who at that time served as the court’s legal adviser) both relied on the Llandovery Castle case. In response to the defendants’ plea of superior orders, the judge advocate stated:
The duty to obey is limited to the observance of orders which are lawful. There can be no duty to obey that which is not a lawful order. …
It is quite obvious that no sailor and no soldier can carry with him a library of international law, or have immediate access to a professor in that subject who can tell him whether or not a particular command is a lawful one. If this were a case which involved the careful consideration of questions of international law as to whether or not the command to fire at helpless survivors struggling in the water was lawful, you might well think it would not be fair to hold any of the subordinate accused in this case responsible for what they are alleged to have done; but is it not fairly obvious to you that if in fact the carrying out of Eck’s command involved the killing of these helpless survivors, it was not a lawful command, and that it must have been obvious to the most rudimentary intelligence that it was not a lawful command, and that those who did that shooting are not to be excused for doing it upon the ground of superior orders? (emphasis added)
The court sentenced Eck and two other defendants to death, another to life imprisonment, and the fifth defendant to 15 years imprisonment.
Assuming the facts as reported about the September 2 strike, and if LOAC and war crimes law had applied (they do not), Secretary Hegseth and Admiral Bradley’s orders were self-evidently unlawful because they ordered no quarter. Moreover, the second strike on the boat would qualify as an attack on those shipwrecked persons who are hors de combat. Whether Secretary Hegseth knew there were shipwrecked survivors is unclear, but Admiral Bradley reportedly did and ordered their attack anyway.
If those involved believed they were engaged in an armed conflict, we find it difficult to imagine they could not have known that the orders were unlawful. The more military training and experience they have, the more implausible such a claim is.
Applying International Human Rights Law to the Alleged Facts
The law of armed conflict is generally a more permissive legal regime for the use of military force than international human rights law (IHRL). In particular, the LOAC permits targeting members of the armed forces, including members of organized armed groups, based on their status, and others if and for such time as they “directly participate in hostilities,” which encompasses more than conducting attacks. By contrast, targeting based on status outside an armed conflict is prohibited. Acts opening the door to the use of force against an individual are generally limited to situations in which they pose an imminent threat of death or grievous bodily harm. If the Hegseth and Bradley orders and the ensuing second strike had been violations of LOAC in a non-international armed conflict, they would, a fortiori, have violated human rights law as a matter of peacetime law enforcement.
With respect to the US lethal strikes on suspected drug trafficking vessels at issue here, two of us (Schmitt and Goodman, along with coauthor Marko Milanovic) have explained why “there is absolutely no question that the US lethal strikes on the boats are a violation of international human rights law.” Without rehashing that analysis here, the bottom line is that the US strikes on suspected drug traffickers at sea are clearly arbitrary deprivations of the right to life under IHRL, an obligation that the United States acknowledges applies extraterritorially. As they wrote:
The widely-accepted standard for arbitrariness prohibits the use of force likely to cause death or grievous bodily injury “except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives” (Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; see also UN Human Rights Committee, General Comment 36, para 12).
If the lack of an imminent threat of death or serious injury on the part of individuals suspected of trafficking drugs at sea (quite plausibly here, ferrying cocaine from Venezuela to a transhipment point for onward distribution in Europe) is obvious with respect to the campaign as a whole, it is doubly so with respect to a vessel that, as has been reported, had turned around prior to the US strike. It is even more patently obvious that it is an arbitrary deprivation of the right to life—i.e., murder—to fire on the shipwrecked survivors of that strike, as has now been reported.
In sum, there is simply no plausible argument that the reported killing of two survivors clinging to the burning wreckage of their stricken vessel could be anything other than an extrajudicial killing. It is equally clear that, according to long-standing law (including prevailing US legal interpretations), the reported Hegseth and Bradley orders to fire on them were manifestly unlawful, and that those carrying out that order cannot rely on a superior orders defense if prosecuted for those actions due to the egregious illegality of the order.
Concluding Thoughts
The September 2 strikes on the purported drug boat neither violated the law of armed conflict nor amounted to war crimes, because they did not occur during an armed conflict. However, if the facts are as reported, there is little question that the order by Secretary Hegseth and the ensuing order by Admiral Bradley to conduct the second strike were unlawful, because the killing of the two survivors was a serious violation of international human rights law.
Moreover, both orders were clearly unlawful. Under well-established law, those who complied with the orders cannot escape individual criminal responsibility for the killing of the two survivors in the event they are brought to trial in a US military court-martial, a federal trial, or a domestic criminal proceeding in another State that has jurisdiction, for instance, based on the nationality of the victims. If actually issued, these orders irresponsibly and unlawfully placed all those involved in the attack in serious legal jeopardy. If the reporting is accurate, those orders should, as a matter of law, have been refused.
Editor’s note: Readers may also be interested in Jeremy Chin, Margaret Lin, and Aidan Arasasingham, Timeline of Vessel Strikes and Related Actions
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