Editor’s note—This post is part of a special series of CERL’s The Rule of Law Post titled, “The President, the U.S. Military, and the Authority to Order Lethal Boat Strikes.”
Since September 2, 2025, the U.S. military has been attacking boats in the Caribbean Sea and the eastern Pacific Ocean, alleging these vessels are smuggling drugs. On January 3, 2025, U.S. forces launched a strike against Venezuela and captured Venezuelan President Nicolás Maduro. On March 8, 2026, the U.S. military stated it launched another strike against a ship alleged to be carrying drugs, killing six men.
In this series, expert contributors address fundamental legal and normative questions arising from the escalating military campaign, including those relating to the role of the law of armed conflict and the law of the sea, as well as the role of senior military lawyers and legal ethics. The series also addresses Article II powers, presidential immunity, government transparency, and the strong presumption of legality for orders under existing law.
Amid the escalating war in Iran, controversy surrounding the strikes against alleged drug cartel boats in the Caribbean and eastern Pacific have largely fallen off the front page. Yet the boat strikes are continuing, even while the Pentagon is largely focusing its attentions elsewhere. Unfortunately so are the legal distortions designed to justify use of the U.S. military to engage in what have traditionally been the province of civilian law-enforcement and U.S. Coast Guard operations. 45 boat strikes have killed at least156 people in the campaign since September, 2025. This U.S. military operation against alleged narco-terrorists rests on a grave distortion of the applicable law, and is accompanied by abuse of the military’s legal infrastructure. There is a name for this type of distortion in war: “Lawfare.”
Within the Trump Administration’s embrace of lawfare, the role of lawyers in the Pentagon has swung from obstacles to enablers of illegality. Secretary of Defense Pete Hegseth assumed command in January 2025, bringing with him a disdain for military law and its stewards. In Hegseth’s book “War on Warriors, he referred to military lawyers as “JAG-offs,” and during his confirmation hearing, he refused to commit to the Geneva Conventions. Within weeks, he had fired the top Pentagon military lawyers and forced the resignation of the Chairman of the Joint Chiefs.
Yet over the last few months, Secretary Hegseth and the Trump administration have avoided accountability regarding the boat strikes by hiding behind the legal advice provided by those same lawyers. Specifically, the Pentagon and White House have created a legal safe harbor in defense of the overall lethal military campaign against alleged drug boats. The lawyers said it was ok was also a prominent excuse for the controversial second missile strike last September that killed two shipwrecked men.
Secretary Hegseth’s shift from denigrating and firing military lawyers to hiding behind them is not simply a rhetorical change. It is a perversion of the law and its unique constraining dynamic within the military. While initially viewing the law as a restraint that tied warfighters’ hands, the Pentagon chief apparently now views the law and its stewards as powerful weapons for committing crimes with impunity. It has been fascinating to watch Secretary Hegseth’s growing realization that lawfare tactics are uniquely effective in a military committed to both civilian control and the rule of law. It is a commitment uniquely vulnerable to exploitation, given the military’s cultural roots in obedience to orders and the recognition that, in warfare, criminal violence can be transformed into justified acts of war with the right legal justification.
The lawfare trajectory
Secretary Hegseth’s initial salvo against the law and lawyers occurred when he fired the top military judge advocates general (TJAGs) upon assuming office in 2025. This was his first step in ensuring that the Department’s institutionalized commitment to legality worked in his favor. Admitting that he didn’t want Pentagon “roadblocks” to a new “Department of War” focused on “maximum lethality, not tepid legality,” Hegseth sent a direct message to Pentagon lawyers with the firings to get with his program if they wanted careers; the unprecedented decapacitation of the various service JAG Corps also set the conditions for their replacements to substitute politicized advice and judgment for the independent legal advice U.S. law demands from each and every judge advocate.
In addition to the immediate shock and awe of firing the TJAGs, history handed Secretary Hegseth a long-term roadmap to ensure Pentagon lawyers would get in line. In the 2005 Detainee Treatment Act, Congress codified a the lawyers said it was ok excuse as a de facto pardon for everyone involved in the U.S. Global War on Terror (GWOT) torture program. The Department of Justice’s Office of Legal Counsel’s (OLC) memoranda justifying torture also proved to be effective “get-out-of jail-free” cards for the commanders, military lawyers, and many other government officials who relied on them to commit war crimes.
Reminiscent of the GWOT legal justifications, the Trump administration last year issued a still-classified OLC opinion that purportedly (1) declares that the United States is in a “non-international armed conflict” against drug cartels and (2) claims that military personnel who kill drug smugglers enjoy “combatant immunity” from prosecution.
Using such lawfare sleights of hand to cloak unlawful orders with specious window-dressing legality, the Trump administration has enabled the U.S. military to carry out lethal boat strike orders that many military commanders and their lawyers surely know, or at least strongly suspect, are unlawful. What better way to get commanders to obey unlawful orders than to get their military lawyers, working within a decapitated legal chain and required to follow the OLC opinion as demanded by executive order, to agree that the boat strikes are lawful?
The legal template employed to justify torture during the George W. Bush administration is now being used to justify murder. Who in this executive branch is going to prosecute a commander or military lawyer for following Secretary Hegseth’s orders? The inverse is more likely: A courageous few like Admiral Alvin Holsey, the former commander of U.S. Southern Command, who seemingly pushed back on illegal boat strike orders, are being shown the Pentagon door.
How can domestic use of lawfare in the military be stopped?
The administration’s legal tactics regarding Venezuela exploit institutional military safeguards that balance a trifecta of adherence to the rule of law, obedience to orders, and civilian control of the military. Ironically, the U.S. military’s institutional professionalization has made today’s military particularly vulnerable to those seeking to exploit its desire to follow the law and obey orders as a means to promote willingness to violate the law without question. Such exploitation is possible, however, only if military lawyers without TJAG leadership or a seat at the OLC table are transformed from being shields against abuse of power to weapons enabling such abuse.
To prevent such abuses, senior military leaders of courage and character must recognize what is happening and mount an effective resistance. Otherwise, they will simply become, as befell Admiral Bradley, mere conduits through which unlawful orders are passed from the Secretary of Defense to the troops pulling the triggers. It is presently unclear why Admiral Holsey retired, but it may have been in part because he took a principled stand against the targeting of civilians who did not pose an imminent threat to the U.S., its territories or its forces. The military has more Admiral Holseys, and they need to stand up if they wish to avoid becoming the unwitting tools of illegal uses of the U.S. military.
Second, Congress must start doing its job. Through its “power of the purse,” Congress can prevent any funds from being spent to support military operations of the sort mentioned above. Unfortunately, recent attempts to exercise its powers have failed largely along party lines. Congress could also use its oversight responsibilities by holding hearings, mandating reporting requirements, etc., to ensure fidelity to the law. If not now, perhaps in the next Congress. As noted in the war powers debates that rage on, what Congress does or fails to has precedential value, shaping the understanding of the allocation of war powers between Congress and the president.
Third, the independence of the JAGs must be enhanced and protected. Congress and the American people must demand that the JAGs (whom Secretary Hegseth still reviles as contrary to his “warrior ethos” but cynically hides behind when military operations go south), are restored to the independent legal advisor role the law demands.
Congress can also reinforce existing statutes that establish JAGs’ duty to provide independent legal advice. Congress can reinforce the role of JAGS in helping to reconcile differences between their own legal interpretations and that of senior civilian leadership. Congress should ensure that JAGs are able to voice their own legal opinions to help prevent unlawful orders from being issued and to help dissuade service members from following them.
The TJAGs uniting against the 2002 OLC “torture memo” should serve as an unsettling example that despite top military lawyers’ resistance to torture and inhumane treatment, these crimes continued under official Pentagon policy until similar resistance took hold in Congress. Greater effort was needed then and is needed now to prevent illegality. Working together, principled commanders and JAGs must identify and push loudly and forcefully back on military orders and interpretations of the law that are clearly incorrect, unlawful, or inimical to the effective and honorable functioning of the military.
Commanders must lead by example by upholding their oaths to the Constitution, following Admiral Holsey’s lead.
Since Vietnam, the Pentagon’s legal and moral guardrails, exemplified by the Department of Defense’s Law of War Program and the primacy it gives to law and the law’s interlocuters, have largely ensured our military conducts itself with honor. Dismantling such guardrails while cynically abusing the law to justify illegality risks leading our nation to legal and moral defeats, like the one the United States suffered as a result of the “second strike,” and continues to suffer due to the illegal murder campaign during which that strike occurred.
Rachel E. VanLandingham, Lt Col, USAF (ret.), is Irwin R. Buchalter Professor of Law and Associate Dean for Research at Southwestern Law School, Los Angeles, and President Emerita of the National Institute Of Military Justice. Professor VanLandingham is a former military judge advocate who advised on the law of armed conflict at HQ US Central Command regarding the wars in Iraq and Afghanistan, and is now a tenured law professor who teaches national security law, the law of war, and criminal law and procedure.
Steven J. Lepper, Maj Gen, USAF (ret.), is the former Deputy Judge Advocate General, Headquarters U.S. Air Force, Washington, D.C. where he assisted The Judge Advocate General in the professional oversight of more than 2,200 judge advocates, 350 civilian attorneys, 1,400 enlisted paralegals and 500 civilians assigned worldwide. In addition to overseeing an array of military justice, operational, international and civil law functions, General Lepper provided legal advice to the Air Staff and commanders at all levels.
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