Trump's Iran Ultimatum (w/ Margaret Donovan)

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1:04sampler pack with seven plant protein bars for hydration mixes and four enhanced coffee sticks. Cleaning ingredients, amazing taste and you'll love how you feel. Refuel smarter, hydrate harder, caffeinate larger with IQBAR. Go to eatiqbar.com and enter code bar 20 to get 20% off all IQBAR products plus free shipping. Again, go to eatiqbar.com and enter code bar 20. Hi, I'm Ben Parker from the Bullwork and I'm Mark Hurtling, a retired lieutenant general also from the Bullwork and this is command post and and one more time tonight we're having the great Margaret Donovan former assistant United States attorney for the District of Connecticut. She served six years in the United States Army and was a captain in the judge advocate general's core. And the last time we had Iran, it was a smashing success and we have even more legal stuff to talk about tonight. So Margaret, welcome. Thanks for joining us. Great, thank you so much for having me again. Got it. We're we're talking all about Iran today, all

2:08about the war and Iran and specifically we want to talk about this threat Donald Trump made against Iran's civilian power generation, civilian power plants. So we're going to start with the threat originally. We're going to talk through that. Then we're going to talk to his sort of update slash walkback. So we'll get to that later and at the end we'll zoom out and ask some some broader questions. I couldn't be more excited to be talking to the two of you about this to help us all get smarter. But why don't we go ahead and start. This was March 21, 7.45 pm. We can start with this Trump threat post he made on his social media platform. Threatening that if Iran didn't open the Strait of Hormuz, we were going to quote obliterate their various power plants starting with the biggest one first if we could pull up that that Trump threat post for people to say. Sounds like maybe we're having trouble start up. Yeah, a little bit more as that. Yeah, okay, so I just summer it was a he threatened to start bombing civilian power plants in Iran.

3:11So Margaret, why don't we start with you as a military lawyer? What is the first thing you think when you hear that kind of threat being made? Yeah, so I also saw that Twitter social media post, whatever you want to call it, when it came out. And my first thought was this seems illegal. But you should understand that you actually can target in certain circumstances civilian infrastructure. And that's kind of a shocking thing for people to learn, I think, when they begin to think about targeting in a combat environment. Civilian infrastructure generally is categorized under joint chiefs of under the joint chiefs of jobs instruction and other DOD policy under two different categories. You have category one, no strike facilities in category two, no strike facilities. And so those are what's known as protected status. A protected status basically gives some type of civilian entity exactly what it sounds like. It is protected from being striped. But I just told you that you can sometimes actually strike civilian infrastructure,

4:13right? And so the test for that is if something has lost its protected status. And so a civilian entity can lose its protected status by basically by being used for some type of military purpose. So I saw contemporaneous with one that tweet came out or maybe it was within the first 24 hours. The UN US ambassador to the UN Mike Waltz said that the power plants he believed were legitimate targets because they were controlled by the IRGC. So that itself is not the test for whether something loses its protected status. Simply being controlled by the IRGC, you could say that about many things in a ramion society, it doesn't make them targetable. A civilian entity or a civilian facility like that will only lose its protected status if its nature, location, purpose, or use somehow makes it a contributes to the enemy's military action. Or if somehow the destruction capture or neutralization of it will give your side a definite military advantage. And so any time that you do a target in this type of environment, you're looking at the four principles of armed

5:16conflict. But specifically if you're looking at civilian targets, you need that target to pass one of those two tests. And so my problem with this tweet is that the advantage I think that the president was trying to convey here, I think that we're all looking at is to lower gas prices, which isn't actually a legitimate military objective, right? That's just like an economic goal. It's a mistake that we've kind of blundered ourselves into here and he's trying to undo. And so the idea that you could inflict this amount of damage on a civilian population, simply for something that does not appear to be a military advantage, I think is difficult to sort of square with those four principles of armed conflict that I think we talked about on our first show that you look at with any strike. Is it militarily necessary? Is it proportional? The damage that you're going to cause? Is it proportional to the civilian collateral damage that you may cause? Are you properly distinguishing in between military objectives and civilian entities? And are you causing unnecessary suffering? And I think that a strike on a power plant that's going to wipe out power for an entire civilian population that already doesn't have the internet

6:20remember. And so they're relying on this for their basic needs. Without actually having a concrete military advantage articulated, I think that that's going to be very difficult to fail to pass any of those four standards. I think it would probably fail all four. Now I say that, but I just want to caveat everything. Maybe there's some intelligence out there that the DOD can rely on. Maybe there are intelligence reporting, there are intelligence reporting that we don't have, I don't have that you don't have that say that actually this power plant is being used for the IRGC in which case the analysis could change. And you could say there is a military advantage. I need to take out the civilian target in order to advance a military operation. But it would have to be for all of them, right? Because he said like we're going to start with we're going to be targeting all of their power plants that have to be some crazy intelligence they're looking at to make that. Yes, completely. And we've seen the intelligence that they've used on strikes in this war. For example, the strike that is widely believed to be the US was responsible for on the elementary girls school. We've seen that that intelligence was over a decade old. So I have

7:22some doubts as to the reliability of some of the intelligence that we're using for these strikes. So you would want that to be really nuanced. And the sir, I don't know if you have this experience as well. But whenever we would have these types of facilities that we would have to strike, something that falls into like I said a category one, the highest protected status of a civilian structure. Usually you're looking at mosques, water treatment facilities, hospitals, things like that power plants are not only on that list, but they're pretty much at the top of the list, especially if you're talking about nuclear power plants because of the potential for just environmental destruction, if you were to target that. So if you are actually making an analysis that you're going to take out one of these so-called category one protected objects, you better have pretty ironclad intelligence that you can use to back up if you get questioned on the collateral damage for it later. But all of that assumes that you have some type of military goal right at the end of it. So I think my main problem, my concern I guess with that social media post is that it wasn't clear to me that there was a military advantage. It seemed like we're just

8:25worried about oil prices. And surely there's a way that we can solve that without just blowing up power plants all over the country. And the real harm that you're doing there is on the civilian population. It's almost like a very creative way to hold civilians hostage for that. So the rule can't be, we're going to emisorate an entire country so that our gas prices get lower because we accidentally spike them, right? So General, I want to ask you the same question. As a former commander, what did you see when you saw this social media post for the first time? Well, the first thing I'm going to say Ben is what I just experienced was déjà vu because Margaret's terrific explanation is the kinds of things I would get in multiple tours in combat from my staff judge advocate, my JAG. You know, you want those kind of details. But I'm going to take it back a notch before that legal analysis is even presented to the commander because when I heard the president say this and put it on true social and say within 48 hours, my first reaction was

9:32that's impossible. You know, the Air Force or the Navy who are getting ready to fire the missiles. I mean, this isn't a video game where you have the targets immediately available and you know what's going to happen. First of all, there's got to be an assessment of the target. That takes time. What are we trying to strike? You know, when the president gives a grand hand wave of we're going to take out all of the power generation facilities in Iran, first of all, that's a lot, a lot more capabilities than the Air Force and the Navy has. And I'll give you an example of that in just a second. But secondly, it has there been an assessment. What kind of collateral damage could take place around those facilities? What kind of civilian workers are in those facilities that have no connection to the IRGC or the Vasege? What kinds of effects are that is this going to have other than blowing up the building and stopping the power generation or whatever the target happens to be? So it's it's you know, when you say 48 hours before the strikes commence,

10:38which is what the president said in that through social post, I'm first thing I said is it's impossible. The second thing I thought even before having my Jag come in and brief me just like Margaret did so magnificently is we get trained on this stuff too. We know what are in the various articles of the Geneva Convention and just a quick review in my UCMJ and a couple of other legal documents I have here in my home. I could find at least seven articles of the Geneva Convention that that order violated or potentially violated as Margaret just said. Now what the first thing I'll say is in terms of electronic, you know, places where electricity is generated, I was in the Pentagon on 9-11 and when we realized that there could be successive strikes after that 9-11 strikes, the secretary of defense asked me and three other people, tell us what other high value targets they might be

11:40aiming to hit. What are the targets that we have to defend? And we went through a litany of categories of high value targets in the United States that we had to defend and there were over 40,000 of them across the United States anywhere from dams and power plants to tall buildings and religious facilities and universities and all those kind of things. So just the issuance of the order which I think probably came off the top of the president's head is dangerous in the first place because as Margaret said, it doesn't contribute to any kind of operational plan or strategic objective. The second thing I'd say because Margaret brought it up, yes, I've been in this situation a couple of times. There was one example I'll give you where we had intelligence indicators that there was a mosque in northern Iraq in Mosul that had quite a significant amount of arms cashshade in the facility and we could watch through UAVs and other intelligence assets

12:47that going ins and outs of various members of terrorist organization taking the ammunition out of that mosque and using it against local population. Does that become a valid target at that point? A religious facility, you really want to bomb a mosque? We made the decision of yes it was because it was being used for military purposes. That's really difficult to do because the initial blowback from the citizens of Mosul was, hey those dam Americans just blew up a mosque are you serious? Until we could get the film out that showed what was going in and out of that and how these terrorists were using a religious facility to kill other Muslims. Did we not suffer the damage that's associated with striking a target that's allegedly a protected target under the Geneva Convention? One of the themes we come back to in the show all the time is trade-offs and you hit it a couple of different places there. One of them is if we're all of a sudden going to devote huge resources to trying to bomb legally or illegally every power generation station in Iran,

13:51does that mean we're going to pause our attempt right now to open up the street of Hormuz? Does that mean we're going to stop hitting missile launcher facilities and we're going to stop hitting the drone stockpiles like are we going to just all of a sudden switch that doesn't make sense? Yeah and if I can comment on that because you and I have talked about this offline, the reason why one of the reasons and I'm an army guy let's not forget that I am not a navy guy but I would suspect one of the reasons why we're not escorting ships in and out of the streets of Hormuz is because those cruisers and those destroyers that are part of the carrier strike groups are doing other missions like protecting the aircraft carrier, like launching Tomahawk missiles at pre-designated targets, like patrolling around to see what's coming their way with their air defense weapon systems. So all of those things are part of what the military calls a troop-to-task relationship. When you assign any kind of the military force to a particular area you say here's what you're going to do when you go in there and suddenly if the mission

14:54changes and the task change then you have passed overload and you can't accomplish all the missions you want to accomplish. So again that's another factor in this 48 hour warning of hey we're going to start striking new targets. It throws everybody not only the launchers but the intelligence specialist and the lawyers put some through cheater flips across the board. I do want to get to the cheater flip is it? That's a doctrinal turn by the way that you use often. I do want to get to the follow-up post where Trump people say he chickened out well I think it's a little more nuance than that but first I wanted to ask you Margaret is there any legal implication to Trump even saying what he did? I mean is it an order? Is it a quasi order? If I'm an officer in the military is it my job now to go like run that down and prepare for it or is it just a thing he said? What is the legal implication of him even making that threat in the

15:56way he did? My god I mean I think that's one of the most horrifying questions you could ask. I mean we don't nobody knows nobody knows what who is calling the shots what he means what he is not is or is not serious about and we hear that all the time that he's you know he's not serious about this thing but he is serious about that thing but as the commander-in-chief in that role if that is the status from which you are making that statement in any other world that would be in order and so it would be up to people below him you know we talked about this last time orders are actually they are assumed to be lawful and so that is up to people beneath him to determine whether or not the order is actually unlawful and so that puts people in very difficult positions but look this is you know I'm not a strategist and I certainly don't have the experience of general hurtling but this is not the way to run a war by Tweet this is actually utter insanity you're talking about a nuclear power plant nuclear damage and fallout from this type of strike and so

16:57you just hope that there's enough people around him and around the people in the strike cell that are not just automatic yesmen that are thinking this things these things through and maybe that's what generated the next tweet maybe it didn't but you know thank god I think most of the time we find ourselves saying at least the incompetence kind of outweighs the corruption in many instances or at least we've said that many times in the DOJ space here but you just hope that you know as the general just said you don't have the capabilities to actually do that and that gave people some time to think okay maybe we shouldn't be just wiping out the power grids or hitting a nuclear power plant based on a tweet that should probably require a little bit more intelligence assessment and thought and care to the fallout and also it's just kind of short-sighted right like in addition to you're taking assets away from active operations from defending you know United States service members and their equipment and planes and ships you're not really thinking about the next day

17:58right so if we do eventually have to have a ground force there either on the shore across the state of our moves or anywhere else on the ground you have to be thinking about what type of conditions you're shaping in the populace and in the geography and in the infrastructure generally when you're making these targeting decisions that's not really up for a lawyer to decide but that is something that I think most commanders want to think about before they make those types of commitments yeah and if I can add to that you know the the mosque example I gave you a little earlier in that particular on that particular occasion at the division level I was a division commander at the time at the division command level I knew what was going on I was getting intelligence briefings about that particular location from the target tiers from the intelligence people and from the operators so that we had the full picture but when we actually gave the order to pull the trigger for the precision weapon to strike that target I personally made a phone call to the commander of that unit and said trust me on this one here's what's going on here's what we're going

19:01to do and yes we're going to hit a mosque and it's because the intelligence shows what the role it's playing in the operation but I got to tell you you know what you just asked Margaret I think from a commander's perspective that conundrum that you face when you think something might be and illegal or not all awful order it's it's the most difficult position any officer that's commanding a unit can be in because the stakes romance the pressure is real you're it's get it especially in this case it's coming from the president the consequences personal and professional are important for you as an individual but also for the soldiers you protect because if someone fires that connect that that precision round and it hits the building if I'm wrong they're also wrong and they suffer the consequences legally there's there's no people just following orders yeah there's no just I was just following orders no you should have

20:05questioned it too that's the difficult part of that but the expectation remains for professional militaries you don't follow illegal orders or unlawful orders and that's a pretty important distinction so I wonder I don't I wonder if we fixed our tech problem here we can get up the trump taco post um there we go so that was uh very early this morning um it was actually earlier than the time stamp says he originally posted it with uh some typos and he took that one down and replaced it with this uh which I think still has some typos um but basically said we've had some very good negotiations some good conversations with around over the last few days uh regarding a complete total resolution of our hostilities of course of course blah blah blah uh and so he he doesn't say he's taking away the threat he says I have instructed the department of war which is what he calls the department of defense to postpone any and all military strikes against Iranian power plants and energy infrastructure only for five days so people are talking about this as if oh well he chickened out that's it it's over the threat is still hanging out there uh so I don't think this is

21:08really the classic taco where he completely reverses course I should say this is a terrible transition but speaking of tacos uh this is about the time of year when my new years resolution to eat better usually falls apart I don't know if that's true for any of you uh which is why I'm delighted to give you a very short message from our friends at tempo uh tempo is a meal delivery service uh it takes all of the difficulty out of thinking of a recipe and making meals and when you work with stamp sign you never have a free moment uh so you can imagine how much something like that is valuable to me uh for a limited time tempo is offering our listeners 60% off their first box of food go to tempo meals dot com slash bulwark takes the meals are fresh balance ready in two minutes uh so you can eat what you want without losing time that's tempo meals dot com slash bulwark takes for 60% off once again tempo meals dot com slash bulwark takes rules and restrictions

22:08may apply and speaking of rules and restrictions wait wait wait wait a minute you're not going to transition yet hold on a minute I got a comment on that because this is the first time we've had a commercial or an ad in the middle of a bulwark takes of command post but I have to compliment you because I personally always thought you were a hero in the first place but the fact that you could transition the way you did talk about this great organization tempo that's going to provide meals and still get Sam Stein mentioned in in the advertisement is it's actually podcast brilliance right there it belongs in the Hall of Fame well thank you so much I uh I do feel like it's a little bit awkward to do an ad read for food and we're talking about you know what we're talking about here's war crimes honestly uh right so uh speaking of uh but you got to eat you got to eat right you got to eat right yeah right you got to eat yeah speaking of rules and restrictions um I just want to ask the same question uh Margaret when you saw that he was uh I I'll just share off the

23:12bat that my sense um well sorry I should share more background information since Trump made this posting we've got great conversations with the Iranians so I'm delaying my ultimate in five days the Iranians have come out and said we're not talking at all he's making that up I think it's possible they're both lying uh there could be some sort of you know there's some sort of go between there's some sort of intermediaries so they're not talking directly but they can say they're talking whatever um I don't know if this is the Iranians calling his bluff because maybe they figure general what you said which is the capability to destroy Iranian energy infrastructure isn't there but um same question Margaret when you saw this uh this walk back post what did you what I mean were you just sigh of relief thank god or what yeah actually you know general hurtling and I were messaging earlier today and you know when the updated news and I literally said thank god yeah sure I don't care if it was to move the markets and try to correct the dive fine like you know at least we're just not

24:1448 hours away from hitting a nuclear power plant um so I you know if maybe there are non nuclear power plants in country still protected status um still would need requirements of all the law of armed conflict to be targetable um so you know my thought is that this is this is just sort of prolonging um a really unlawful conversation where you look back to the principles that each commander including the commander in chief would be thinking of before he or she engages a target military necessity proportionality distinction unnecessary suffering it's very difficult to satisfy let's just take the first one military necessity if you're saying that this can wait five days that this can just be something that we can negotiate and there actually is an alternative besides use of force I'm just not patient enough to go through with it I mean that is you know they say war is politics by other means so to speak and and it's just sort of like maybe we should have tried politics for a little bit longer here um or negotiation or diplomacy for a little bit longer um I think we're good you know past that but right exactly exactly um so we that that you know

25:16maybe water under the bridge so to speak but um but you just you don't pass any of those requirements in my mind certainly not proportionality distinction or properly preventing unnecessary civilian suffering so the idea that we've now just kind of kicked the can down the road by five days I don't know that that solves the problem I think we just should have never put it on the table and by the way um I had read in reports that Iran had responded in kind and said something to the effective and it was on a you know social media so take it for a grain of salt but um you know responding to that they had been targeted their hospitals had been targeted their eight centers their schools had been targeted and they did not respond in kind but if the electrical grid is put as a target they will respond in kind and they will respond to US regional energy sources and so that is a really good example in my opinion of why it is important to follow the law of our armed conflict and to not just erase the standards with just a single tweet and say actually we don't care about any of this anymore everything's targetable if you don't you know help us lower our gas prices um I just thought that that was like a really poignant example and in fact

26:21I don't want to get like super deep in the weeds here but um one of the additional protocol calls to the Geneva Convention was signed by only three countries and two of them were Iran and the United States and that additional protocol is the one that addresses uh specifically civilian objects and certain considerations for targeting civilian objects during warfare and so you just have this really strange juxtaposition of you know the United States threatening to do this really horrific thing if and again I'm gonna asterisk this like maybe there is some intelligence out there maybe they know that these power grids are only serving the IRGC and if so good sounds like that intelligence could support a strike on them um but if it really is just to hurt the civilian population to try to inflict pain to force the regime to negotiate I just don't think that that is a proper use of military force let me generally want to ask you to yeah let me just because Margaret is as always spot on but that that distinction is so incredibly important for two reasons for the last 47 years we've

27:24been calling Iran a terrorist nation they support global terrorism they supported terrorism against our troops in Iraq and Afghanistan and we have known our nation has come to know them as a quote terrorist state when we talk about conducting what I would consider if if it doesn't meet the standard of the four standards that Margaret just mentioned of any attack on those facilities we're using weapons to try and persuade governments to change their direction it's the same thing Russia has been doing for the last four years in Ukraine so targeting civilian facilities makes us I'm gonna say this openly kind of puts us in the same category of being a terrorist because we're trying to persuade a nation to do something by striking their citizens and that's horrific in mind but that is that is the line right that is the difference that is why the law of armed conflict matters because that is that that distinguishes us from them and that's why

28:27we've tried to uphold that even against the most horrific of adversaries right the Islamic state obviously they're not even a state so they're not signatory to any of these treaties or these conventions they did not recognize you know any rule of law but what made us able to hold our heads high in that fight and ultimately succeed in rooting out the Islamic state in Iraq and Syria was our ability to to be doing the right thing for the right reasons and so even though both the general and I and many strikes I you know we had civilian facilities that were being used in firefights they were the enemy was taking defensive positions and then we had to strike them but you know the difference is that we actually have a set of principles that underpin when we make those decisions and we are doing an analysis of what the greater good is between the choice of two vehicles there so I do want to ask you one more question general and then as we as we get a little deeper into this I really want to narrow down on the law stuff but before we get there general you have a forthcoming article in the bulwark we didn't we it's not published

29:28yet but it'll be online soon people can go to the bulwark.com to read all the excellent things you write to get a ton of the best news coverage around I really mean that and to support what we're doing here which we able to you know bring people for free because of people who join bulwark plus and support us so if you want to support our work go to the bulwark.com become a bulwark plus member you got all sorts of members on the freebies too or members on the goodies I should say but your forthcoming article is all about not only the repercussions that we could have expected or maybe still could expect from this kind of campaigning and surrounding power generation for the region but the repercussions for the American military and what it would do what it would mean for people who would be on the execution end of those orders you talked about this little before but I mean what does it do to morale what would it do to cohesion and the force what kind of military would we be looking at well there's certainly going to be people inside the military who were saying yeah strike that target let's get it right now let's put as much want by us on it as we possibly can and then there are others who are going to be considering all the things we've

30:32been talking about tonight the moral injury for soldiers the fact that you're killing citizens that may not come up when you're doing it but five years later when you're sitting at home with your family suddenly you start thinking about the people you killed in combat that's moral injury so there's a combination of that psychological distress but also the dynamic inside of organizations between different approaches that people will take you know how much firepower how much deliberate kinetic strikes should we give to destroy these individuals who have been hurting us for decades in combat and in in proxy militaries so so there's that whole dynamic truthfully been it it's it is a tough issue to talk about Margaret said she breathed the sigh of relief this morning when when the order was taken off I did too but in addition to my sigh of relief

31:35I thought to myself God please haven't be the chairman of the joint chiefs that persuaded him not to do this because of legal activity and holding the military together because this is not what we do we do not strike civilian targets purposely so that that's the approach I take from a morale and a discipline issue you know the I go back to the main point I've made many times with you Ben that the whole role of a commander in combat is is to control chaos it is to control chaos and instill discipline so soldiers don't turn into you know a till of the hunt and go after bad guys just for the want of killing that's not what we do yeah I think that's right um okay let's get really nerdy here uh Margaret you have named a whole casebook full of uh of legal sources that I can barely and so we have the uh general named the uniform code of military justice

32:37the UC MJ we've also named rock Geneva conventions and the additional protocols of the Geneva conventions yes and you mentioned the chairman's directive right so yes where how do all these stack up in terms of their legal power and and what how much of this is domestic law how much is international law how much is norm and custom and how much is just basic morality well can I add one more Ben oh please do Mark how about rules of engagement oh yeah rules and gifts the current secretary of defense is kind of food food but there's certainly legal requirements from a commander to his or her troops yeah I mean can I I just want to like zoom out a little bit big picture here because this is something that really like eats at me every time that I see um leaders and people in this administration and sir I'm sure it drives me nuts too having done so much work in Europe just sort of discard these international treaties and they think that though it's just this breezy concept of international law that doesn't isn't actually binding but um NATO that Geneva conventions the UN charter all of those um agreements have been signed and ratified by

33:41Congress and so that means that they actually are domestic law they're not just floating in the wind somewhere um and if you look at the supremacy clause of the US Constitution it actually lists treaties on the same footing in the terms of supremacy of the supreme law of the land as the constitution itself and of as statutes passed by Congress and so treaties were actually very important to the framers when they first wrote the constitution and think about it how did we get to the revolution right through an international alliance with France and so that was one of the first treaties that we entered into and so international law has always been important to this country and our allies have always been important and so um so I just want to you know to your question about is it international law is it domestic there are many instances where so-called international law actually has been codified that codified is maybe the wrong word but it has been ratified domestically such that it is binding on people who um should be executing it so um then you have the uniform code of military justice of course that is the penal code for all soldiers and service members in the armed services uh and you have the rules of engagement and that would be binding

34:43on people who are actually in theater and so a just um uh not following or just so being one of the rules of engagement would trigger an offense under the uniform code of military justice so it could subject to subject you to possible um criminal liability there and so you have you know a pretty robust framework but in when you're talking about the context of following an unlawful order it gets a little bit difficult when you have these really big picture conflicts of law um for example the invasion of Greenland right we were we all forgot about that that was actually a topic that we were talking about you know like less than two months ago um that we were going to blow up NATO the same by the way the same group of countries that we're now asking for help I wonder why they don't trust us um so there was this idea that we were going to you know take Greenland somehow by force and I think that there are you know there is a very good argument that at the top um in those sort of decision-making capacities people who are deciding whether or not to go to war though they may be bound by not following an unlawful order but once that decision is made I think that there's

35:48an argument that people lower on the chain the private right the lowest rank in the military and the army um is assuming that the orders and the people who have debated these things above him or her have already come to some legal justification and that's not as if everybody has you know some advanced law degree you can't expect every soldier to know whether or not something is illegal or um or in violation of an international law or something like that and so it really does fall to the leaders in the military to be making those decisions um so that the people who are trusting them to make the right decisions and to follow the law are not being led astray and being part of this you know something that could be a really really unfortunate chapter in America's history which I hope we don't finally um go down any of these roads that we've come really dangerously close to but to me it belongs those decisions need to be made at the top and it needs to be made for the benefit of the people at the end of that chain and general i wanted to ask you a question about um how

36:48command climate affects all of this um we've gotten a lot of questions about this this terrible uh strike on the the girls elementary school and around that killed estimates are 165 175 people mostly children uh and and Margaret as you said seems to be based on intelligence that was really old and just never got updated um so the i'm sort of interested to know like you know from a legal perspective like oh is that a crime if you're negligent or do you have to do it on purpose and i'd be interested to hear that from you Margaret but but in general i really want to know like does the fact that the secretary of defense talks the way he does make a difference in a case like that i mean obviously it's a one-off but but the fact that he says oh rules are engaged in that's for cities we're going to be lethal over legal or whatever he said what kind of effect does that have well you know there's there's an old saying in the military that says the the command climate emanates from the top uh you know the unit the organization takes on the personality of the commander

37:49i'm not sure that's true from the overarching standpoint of the military but certainly there are people who are emboldened when they hear the secretary of defense say things like this uh there are those we're going to say oh yeah we don't care about the rules and but most of the individuals who are saying that and i'm spitballing here but they don't have the responsibility of protecting their soldiers from both the moral injury we talked about a little bit earlier but also legal action and when you when you're not in the chain of command and you're saying yeah let's just blow off the rules of engagement things happen when you do that uh secretary heggseth was involved in an incident uh in in a rock where he saw that up close and personal where his brigade here did not obey the rules of engagement and went into an an operation where they were told that there were only going to be terrorists on an island uh in the middle of i think it was the Euphrates river

38:50so everybody should be fair game and because of that a couple of individuals shot old men old farmers turned out to be civilians and those individuals were court martial then they're still serving a sentence it let them work so and the brigade commander was relieved uh and it was a brigade commander that secretary heggseth had a great deal of uh a respect for well he gave some orders that people could interpret at lower levels and it got all of them in trouble and it resulted in death that's the thing that isn't controlling the chaos that i talked about a little bit early yeah uh so i think we have time for this one more question so Margaret i wanted to ask you um a difficult question but probably one that some of your old colleagues are facing which is if you are the staff judge advocate and your boss comes to you and says i just got this order to attack this power plant is it legal and you do your analysis and you come

39:50back and you say i think it's not and then they say i think i'm going to do it anyway what do you do as the staff judge advocate as the military lawyer what's your record yeah yeah so i can say that i i have not had that experience because in a properly functioning strike cell the judge advocate is integrated and so at the time where a strike is going to go off course and veer into something that violates the love arm conflict the judge should be integrated into that planning process to put it back on the right track or just to say let's hold off this target isn't ready we'll come back in a day or two and see if we have imminence or whatever it was we were waiting for i have had and i can count on one hand the number of instances where i was advising a commander on can you should you must you and that's sort of a phrase that we use um i don't know in the jack or maybe in the military generally advice and commanders can you yes um the i'm thinking of lots of color to this example i'm thinking of it was a strike in fallujah in 2016 and we were re-clearing the city of fallujah from south to north and at the time um there was one

40:56remaining hospital in fallujah and so it had been taken up by the enemy to use this defensive fire we had friendly forces getting casualties in a self-defense posture you can target that all day but it is one of the last you know remaining aid centers and so are there other ways to sort of take that objective that is not going to ultimately destroy it and i remember having this conversation and having you know a very frank exchange of can you do it yes you can you have self-defense you have a justification you legally can do this should you remust you that is a decision that the commander makes um but to more to your point to answer your question more directly if you think that something is illegal and you're a judge advocate officer and you have given an opinion saying i do not think that this comports with the law of armed conflict i think that this is illegal i think this could be a war crime not only do you have an obligation to tell your commander whatever it is in your chain of command that people also have an obligation to report war crimes and it is actually a war crime itself a violation of Geneva itself to not report war crimes

41:56and so that's what i would advise people who are in these positions is it's not just making that report to the chain of command you need to be able to blow the whistle on things when you see it and if your advice is not being followed you need to make that report to congress who is responsible for oversight and then you probably need to resign if you don't think that you can do your job effectively and i hate to say it but that's usually the end of the road for people if their advice just isn't going to be heated well i think that is a suitably dark and scary note on which to end a conversation about war crimes uh if people enjoyed this live stream we do these all the time the next bulwark live stream is tomorrow morning my colleagues bill crystal dan jueger are going to be getting together to discuss uh all of the news of the day uh as crazy as it is so make sure you tune in for that tomorrow morning um someone will remind me what time it is it's at 10 a.m. it's at 10 a.m. tomorrow morning join us for the morning chaser after the morning shots these letters goes out in the morning margarit thank you so much for joining us and remember we we tried to answer a bunch of questions people sent us today with this episode

43:00that's why we invited margarit back you can send us more questions at command post at the bulwark.com and if you want to leave us a comment uh and chat with us you can become a bulwark plus member at the bulwark.com um and thanks so much for watching command post thank you all thank margarit thanks for having me talk to you soon forget everything you had planned for this weekend because you are sitting on your couch and winning from the comfort of your own home i'm here with spin quest where you could play hundreds of slot games all of the table games you love and you could even win real cash prizes new users 30 dollar coin packs are on sale for 10 at spinquest.com spinquest is a free to play social casino boydwarf prohibited visits spinquest.com for more details tolerate a cure from 2311 racing victory lane yeah it's even better with chamba by my side race to chamba casino dot com let's chamba no purchase necessary vtw group boydwarf prohibited by

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