So, the Office of Legal Counsel appears to believe that military personnel engaged in strikes on "drug-trafficking" boats cannot/will not be prosecuted. Really? Again, you ignorant sluts?
Let's neglect, for the moment, that overruling the National Security Act of 1947 as amended requires an actual bloody amendment. This matters — yet again — because the purportedly binding nature of the Office of Legal Counsel's "opinion" is interfering in a chain of command established by statute. I've been unable to find anything in any proper amendment to the 1947 Act (and there have been several) that inserts the OLC into the chain of command. The OLC can, at most, provide outside advice to the Joint Staff and the respective service chiefs. Further, we've had multiple historical demonstrations that the OLC's expertise simply does not extend to military law; the Yoo memorandum is only the best-known.1
We'll also neglect, for the moment, that the "opinion" was classified. Recall the proper grounds for classification: "Information may be considered for classification only if its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security," with the particular levels of appropriate classification defined (see § 1.2) with wording little changed in the last half-century. One can only conjecture the "identifiable or describable damage to the national security" — as distinct from damage to any individual (including but far from limited to the President), organizational imperative, policy initiative, or pipedream — from disclosure of a memorandum of law that (ineptly) discusses and dismisses prosecution of military personnel in a hypothetical future operation of uncertain factual context and unspecified content of relevant directives and orders.2
The fundamental problem is that the memorandum is indefensibly wrong. If the orders are in fact lawful, and in furtherance only of lawful actions, there's no risk of prosecution in the first instance. There might be for exceeding them, or I suppose for hazarding a vessel in the course of following them, but that's a different — and highly fact-bound — issue beyond the scope of any pre-event legal memorandum. If the orders are unlawful and the memorandum is purporting to excuse following them anyway, the memorandum is legally wrong.3 We've been here before.
[E]ven if Calley had received the orders as claimed, he would not necessarily have been exonerated. The military judge properly instructed that an order to kill unresisting Vietnamese would be an illegal order, and that if Calley knew the order was illegal or should have known it was illegal, obedience to an order was not a valid defense.
(emphasis added) And no matter the ego or righteous conviction of one or more civilian lawyers at the Office of Legal Counsel, they can't overrule the Fifth Circuit. At most, they can supply some authority that a particular class of orders, without consideration of specific context, might be legal — but that just goes to the "should have known" issue, because the individual who issues unlawful orders should have known, too.
Perhaps these are seditious words. If so, I own them; and I assert that a Presidential suggestion — however disguised as a social-media reference — that anyone "be arrested" for reminding military members that following an unlawful order is itself unlawful seems to constitute a "high crime or misdemeanor," and especially so in opposition to the Speech and Debate Clause and/or First Amendment.
This Administration appears to be engaged in an epistomological attempt to determine the number of wrongs n that makes a right. I remain… unconvinced. (And they can't have the pony, either.)
- I make no representations regarding the content or existence of any other Office of Legal Counsel memorandum, present or historical, concerning either military law or legality of classes of prospective conduct by military personnel, that has not been declassified and made available to the public. I similarly make no representations regarding the mining of manganese nodules from the floor of the East China Sea.
- Probably only the same sorts of considerations that led to burglarizing a psychiatrist's office. With, one might contemplate, ultimately similar results.
- In any such/similar memorandum that has been made public of which I'm aware (whether or not formally declassified), there's a simultaneously startling but ultimately unsurprising omission: Any consideration of Article 133, Conduct Unbecoming an Officer (codified at 10 U.S.C. § 933) as a source of prosecutorial grounds independent of the specific actions. And this as we approach the 80th anniversary of the Nuremberg proceedings, let alone considering whether military law might treat failure to make independent, circumstance-specific inquiry as a dereliction of duty. Dienst ist dienst indeed.