Angry Planet - Yes, US Strikes On Alleged Drug Traffickers Are Illegal. That Won’t Stop Them

Episode Date: October 31, 2025

Listen to this episode commercial free at https://angryplanetpod.comThis week on Angry Planet we have returning guest and former judge advocate Dan Maurer. The last time he was on the show, Maurer walked us through the consequences of a Supreme Court ruling that asked the question: is it illegal for the President to order SEAL Team Six to kill people? It was a surreal question that now feels more pressing.A US Carrier Strike Group is moving into South American waters to support America’s highly kinetic War on Drugs. Military lawyers might have advised the Trump administration that extra-judiciously executing alleged criminals in international waters is, in fact, illegal. But Secretary of War Pete Hegseth is no fan of military lawyers and fired the Judge Advocate General (JAG) of both the Army and the Air Force. The Pentagon plans to turn as many as 600 of the remaining military lawyers into immigration judges.The second Trump administration is perverting the law and sidelining anyone that might tell them it’s a bad idea. Since he was last on the show, Maurer has retired from the Army and is now a professor at Ohio Northern University’s college of law. He’s here to tell us how bad things are and how much worse they might get.The terminal parent metaphorA story that only ends one wayWhat’s a JAG?Hegseth’s JAG hateLaw as perversionAre these strikes legal? “No.”“It can be lawful, but not moral.”Legally speaking, you can’t be a combatant and a criminal.When Truman tried to take over the steel industry.Can state authorities arrest the feds?Life after Trump timeAre Military Lawyers Being Sidelined?Defining ‘Rebellion’ in 10 U.S.C. § 12406 and the Insurrection ActOn Treason and Traitors“Anna, Lindsey Halligan Here.”Support this show http://supporter.acast.com/warcollege. Hosted on Acast. See acast.com/privacy for more information.

Love this podcast. Support this show through the ACAST supporter feature. It's up to you how much you give, and there's no regular commitment. Just click the link in the show description to support now. Hey there, Angry Planet listeners, Matthew here. Did you know that Angry Planet is almost entirely listener supported if you would like to contribute to the cause? Go to Angry Planetpod.com. You will get early commercial free access to the mainline episodes, a couple of bonus episodes, and some written work.

Again, that's at angry planetpod.com. Thank you so much for being here. You know, the last time you were on, I didn't read an intro, and I think I'm going to do that this time again. Welcome back. Thank you. How are you doing, sir? Hanging in there. Yeah.

This is one of those years where if you have a little bit of knowledge of what's going on, it is actually worse, I think, than what's hitting the media right now. Will you introduce yourself, Dan? Sure. Thank you again, Matt, for having me. My name is Dan Mauer. I am currently a law professor at Ohio Northern University's Law School. I've been doing that for, I'm now in my second year. I'm recently retired Army Lieutenant Colonel JAG officer, Judge Advocate General, Corps officer, 22 years doing that. I was an engineer officer before I was a JAG out of ROTC, two-time Iraq combat veteran. One time as an engineer one time as a JAG. I do a lot of writing and talking about civil-military relations, and kind of the highest level of sect-def presidents and generals and admirals. So Pegseth's talk at Quantico was of particular interest to me a couple weeks ago. I do a lot of talking and writing about military justice, the criminal law system that works within the armed forces. And I talk a lot

about national security issues like domestic deployments, troops to various cities, use of force abroad under the laws of war, so things like boat strikes in the Caribbean are of particular interest to me right now. And the Pacific now, too. And the Pacific, yeah. An expanding war, question mark. So we had you on, for those that may not remember, we had you on before. before the election last time, but after a pretty important Supreme Court ruling, you just

written a piece in lawfare about the president asking SEAL Team 6 to do an assassination and the legality of that and what may happen. And I would say that one, you were in a different position. You weren't yet teaching, right? I was about to start teaching. I had just retired. I had just retired. and I was about to start my first semester teaching at O&U.

And we also, we didn't quite know how this administration was going to play out. I would say that you were cautious but hopeful. How are you feeling like high level? How are you feeling about the rule of law and everything that's going on right now? I think maybe the best way to describe it would be like, having a parent or grandparent who is very ill and who is requiring a lot of attention to keep them stable. And the very real risk that that patient could go at any time and how heartbreaking that would be. That's kind of how I think of the will of law right now.

It's not on its deathbed, but it is severely. constrained by external threats, external pathologies, if you will, threats to its health. And it's, in some sense, it's kind of like being a child of an elderly parent or grandparent who's not a doctor, you know, who can't be there and actually protect that patient. Observing it from the outside is kind of, it kind of feels a little bit helpless. but you hope you try to be confident that the doctors are doing the best they can. And by doctors here, I would refer to the courts. So I'm nervous and I'm ill at ease about the way that law is being forsaken or abused or ignored by the administration in many, many respects.

I mean, we talk about birthright citizenship is one. transgender bans, another due process violations by law enforcement, domestic employment, domestic employments, overseas strikes, et cetera, et cetera, et cetera. All these things are insidious viruses, I guess you'd say, attacking the health of the system. But the system is not just the president. It's not just Congress, also the courts. And for now, the courts are doing their job. The courts have not been closed.

you know, we don't have hanks sitting in front of courthouses, barring entry. You know, judges are not in jail. They're doing their job. And what is frustrating to many is that that job takes a long time. The court process is slow, but it's working in that to the extent that Trump's executive orders spurred litigation and it has an unprecedented degree. Last time I checked, there were like 300 lawsuits just related to. executive orders since January 21st.

And the vast majority of those, at least those that have been decided with some finality, have gone against the administration. They've stopped the administration, or at least slowed it down. And that's encouraging. Now, of course, there are threats against the judges being made, either explicitly or implicitly by the administration, a concern that maybe the administration just won't follow a court order, which would present a huge crisis. Because, as you know, the courts don't have their own police force. They can't enforce their own orders. They rely on the executive

branch to do that. And if the executive branch refuses to follow an order that was attempt to put it in check, I don't know what would happen. I just don't know. And that's concerning. So I think the best way to view how I'm viewing this, and many of my colleagues are viewing this, is as a kind of a nervous child of an elderly sick parent and hopeful that the medical process, medical system, and the professional practitioners are doing their job and will continue doing their job and not give up on the patient. Yeah, but that metaphor frightens me because that story only ends one way on a while. long enough time long. Fair. Fair point. Okay, we'll do it this way then. Let's say it's a, it's a pregnancy that is potentially at risk and at risk pregnancy. And the good end story,

the good news that could happen would be a healthy baby boy or girl that comes out at the end of the day. And we're hoping that the mother remains safe and healthy throughout the pregnancy and the doctors are there and going to do everything that they need to do to keep that. that newborn safe. So a long life thereafter. So we can just reverse it and put it in that context. But that wasn't the metaphor you reached for the first time, though. True.

True. So maybe, I don't know. Pick whichever one you want. Let's get into some of what's making, I think, everyone nervous. Let's start with Jags. I think that's kind of like, you know, you know more about that than anyone else I know. very briefly for some members of the audience that may not know, what are they?

Why are they important? Sure. Very basically, they're just military lawyers. They are military officers who have law degrees who are licensed to practice law in a state, wherever they got their bar license. I went to Ohio State law school. I got license in Ohio. I was working for the Army as a JAG.

So that allows me to practice anywhere in military federal courts and be a military lawyer wherever I am, even outside Ohio. Same is true for all other JAGs. Each service has their own. So there's an Army JAG Corps. There's a Navy JAG Corps, Marine JAGs, Air Force Jags. Air Force Jags are also Space Force Jags, at least for now. There are Coast Guard Jags.

There are literally thousands of JAGs. from young lieutenant, you know, just a year or two in the service, all the way up to general officers and admirals. Very few of him, obviously, but there were a whole range of ranks of those jags. And their job is to provide legal counsel in two respects. One is to commanders and their staffs as they conduct normal day-to-day operations at Fort Bragg, North Carolina or San Diego Naval Base, Quantico Marine Base.

I mean, everyday normal things that happen on these installations that are like little cities. So they're kind of like city attorneys, right? Regulations, compliance, employment law, environmental law, personnel law, military criminal law, there are prosecutors and their defense counsel, there are judges. All those things that happen in a normal

civilian community happened in military communities. So JAGS advised commanders there on how to follow those rules, how to execute their authorities lawfully. Overseas, or during any kind of deployment, JAGS are there with commanders and staffs to advise them on, among other things, compliance with treaties, other bilateral agreements that we have with countries, rules of engagement, if you're fighting in hostilities, laws of armed conflict. Jaggs, as the lawyers, are the experts in these bodies of law, as you would hope that there would be. Beyond that, in another area that Jags practiced, they practice criminal

law, like I said, there are prosecutors and defense counsel and judges. And then the third, I said two, but really three, the third area in which Jags practice are essentially representing clients, like service members and their families and various things. So landlord-tenant complaints, commercial disputes, some family law issues from time to time. So they represent, in some respect, individual service members, they advise commanders, and they perform criminal justice function. And JAGs are the resident experts in the law for military commanders and staff. And there are JAG offices at every installation in the country and every installation around the world. We're kind of, the U.S. was kind of at the forefront of this. I'm not aware of any other

modern military that had a kind of embedded, uniformed military lawyer as a routine part of their staff before the U.S. did. And even for the U.S., it's kind of a late, a blooming thing. We've had Jags actually since the Continental Army, but only a couple. It really ballooned after World War I. the Army in particular realized that it would be helpful to have law of war experts at lower levels, which means more of them to kind of cover the field. And then really took off after Vietnam, like the Miliy incident, the war crime there, when it was pretty apparent that troops who were poorly led and ill-disciplined who weren't well-versed in rules of engagement or the laws of war or why we should follow them,

could lead to catastrophe. And so the wake of that led to a lot of reform, much of which was imposed by Congress, and said, you will have these law of war programs within your services. You will have JAGs doing these functions. They will be the experts. You will comply. Your operations, whatever, whatever you're doing, humanitarian interventions to counterinsurgencies, to counterterrorism, to full-on, you know, armed conflict with North Korea or Russia or China or whomever, you will follow the laws of war and you will incorporate all those into your planning. And that really took off after Vietnam. So that's kind of, that's what jags do. And there are active jags and there are National Guard Jags, Reserve component Jags. Within the overall scheme of the military, it's a very small percentage,

very small, but numerically, it's thousands, thousands. And again, from lieutenant to captain, major, all the way up to general officer and admiral, and they're enlisted soldiers and service members that are paralegal, so they perform supporting legal functions too. It's very parallel to many civilian type of legal cultures and systems. A rule of law is very, very important in the military, mostly because the military recognizes how much force it has at its disposal and recognizes that it needs to be constrained and control itself and regulate itself. And the JAGs act as a kind of internal regulator system that helps commanders understand where their left and right boundaries are. Jags don't make decisions. They don't issue commands.

They advise and provide counsel to. But ultimately, those decisions are made by commanders who have the legal responsibility for them. And how is that internal regulation system faring in Trump 2.0? Not great. I'm really upset about having to say that. And I don't think this is Jags' fault. it ultimately comes down to pressure from above and started with, well, a couple things. One, even before Secretary of Defense Higseth was confirmed, we all knew how he felt about Jags.

He has a very limited tactical experience as a National Guard junior officer in Iraq and Afghanistan and at GITMO. his exposure to Jags was minimal and was reflected mostly in his antipathy toward rules of engagement, which he felt to be overbearing and restrictive, didn't allow him to do what he wanted to do and put his soldiers at risk. And then many of his comrades, many of his peers ended up being investigated for war crimes, in part because they were violating the laws of war and the rules of engagement. And he didn't view that as a fair outcome. So his view was very negative. It's still very negative. He called Jags Jaggoffs during his Senate testimony during his hearing, just repeating what he said in his book at the request of a senator who asked him about it. And his comments recently,

Juanico about our rules of engagement being overly burdensome and political, just reflect a very naive and so an ignorant view of what rules of engagement are. So he already has this negative impression of JAGS. And in February, mid-February of this year, so not even a month into the administration, he essentially fired the top JAGs in the Navy, I'm sorry, in the Air Force and in the Army, the T-Jags, the judge advocate generals off of their services. Those are three-star generals. And again, each JAG Corps has its own leadership.

and each one is headed by a three-star, at least they were. The stated reason for why they were removed, which is highly unusual, they don't turn over with administrations. They're designed not to turn over with administrations. They're designed to be nonpartisan, apolitical, Senate-confirmed technocrats. They're supposed to be objective and neutral and not hewing to the party line. They're supposed to give advice. and even if it's contrary to what the policymaker would prefer, that advice should be what the law says. And Hengseth literally told Fox when he was asked about why he got rid of them.

He said, because they're roadblocks. They're roadblocks to what the administration wants to do. And that was scary at the time. But of course, we didn't see exactly what that was going to look like. Now we do. Now we see deployments to American cities, uses of, the military in those cities like LA that violate federal criminal law, Ossica Kometadas Act. We have even more scary, I think, is the use of lethal kinetic strikes

on these allegedly narco-terrorist votes in the Caribbean and now the Pacific. And you can feel very strongly about drug trafficking, and I do. You can hate it. You can despise the people who participate in it, you can worry about the future of the health and safety of our fellow citizens because of what they do, but you have to recognize that what they're doing is criminal and therefore subject to criminal law, not summary execution. They're not combatants. They're not warriors. There are specific rules and laws that apply to warriors and combatants in legitimate armed conflict. And that does not apply. in a criminal setting. You can conduct strikes on terrorists, true terrorists and combatants.

You can do that without having a trial. You can do that without having to arrest them first. That's the nature of warfare, and the law allows that. And the Trump administration has simply declared that we are in an armed conflict with these nargo terrorists, even though there are legal definitions of what war is, what conflict is, how it operates, what triggers these laws. And none of those are true in the case of these boat strikes. So he's using the power of the law of war to cover what he really wants to do, which is demonstrate absolute force and eradicate these criminal threats. Again, you can despise the threat, but still recognize the rule of law should apply,

and we should be able to treat them criminals, which we have done for decades. The Coast Guard has a mission, a statutorily defined mission, to engage in law enforcement in the Caribbean, among other places, to interdict the drug-smuggling boats. And they've done so. In fact, they were doing it during these airstrikes. They were conducting these same missions during these airstrikes. So why are they interdicting some? And then the Navy or the Air Force or the CIA, whoever it is, is directing air strikes on other boats. So in a best case, in a normal situation, you would have Jags operating at all the levels of

chain of command that would be looking at these orders coming down and saying, wait a minute, that strike that you want to do, given that target at that time of that location, given the facts that you're telling me, would be unlawful. If the facts change in the following ways, well, then maybe it would be lawful. But given what you're telling me now, and given what we see here, if you do this, commander, you're committing crime. You're committing a crime. You're violating international law, you're violating our own domestic federal law on murder. Jags should be giving that advice. And then commanders, who are reasonable, should be saying, I don't want to go to jail for murder and I don't want to be committing murder. I want to follow the rule of law. I want to do

what's right. Even though I may view these as a threat, I don't want to just decide I'm going to use lethal force whenever I have the opportunity to do it. That's not what the American military is about, and it hasn't been for a very long time. At least we tell ourselves that. So my concern, and many of my colleagues' concern, is that the Jags that would normally be in those operational chains of command in the headquarters advising commanders weren't there. They're not in the room, so to speak, not in the room when it happens, to quote Hamilton, and therefore they don't know those orders that are coming down. Or almost as were, almost as bad, is that they're in the room, and they're giving advice and it's just being ignored because they know, the commanders know,

that this is coming from Trump and or Heggseth and or Stephen Miller, and there's no use, so to speak, no use in pushing back, in dissenting, in arguing about it, because they don't want to get fired. They don't want to get relieved. They don't want to end up on Laura Lumer's hit list of people who get doxed and painted in this very negative light. they want to do their job. They don't want to get reassigned as an immigration judge, which is happening. Or that too, right? So the commanders are, you know, realistically and understandably concerned about their careers,

their reputation. They probably worry about, well, what would happen if I leave and they get replaced by someone who's even more docile and complicit, right? I can at least check some of the abuses by being. being here and trying to do the best thing that we can, given the law. There is an argument, not a very good one, but there is an argument that these strikes could be lawful, or at least not obviously unlawful, but I don't think that's a strong argument. But it's enough for these commanders to say, well, maybe we're in a gray area. The president says it's lawful, and therefore

I have a get out of jail free car, so I'm going to go forward with it. But that still begs the question of whether what they're doing is morally just. It can be lawful, but not moral. And these commanders arguably have a moral obligation as well to use force well, not just because they can. And if they're not pushing back and they're not, they're not basically putting their stars on the table and saying, yeah, I'm at risk for being relieved or humiliated, but I'm doing the right thing by pushing back. I don't know many that have. And those that could have are gone. They were either already fired, like the chairman of the Joint Chiefs of Staff, C.K. Brown or these T. Jags early on. And those that are left are those that are believed to be compliant that will go along. Now, I'm not going to say that that's the way to describe every remaining general officer and admiral in the service, because I'm sure that's not true. Many have just not been put in a position where they have to question something like this. But my concern is that those jags are either not there to give that advice that they would give in any other circumstance. Or,

they're there and are just being ignored. And to your point about being reassigned, that's another problem here, is that the aggressive immigration enforcement has, and coupled with the administration's purging, if you will, of other immigration judges has led to this giant gap. They don't have enough immigration judges to do all the work that's needed. So if you already don't like Jags advising commanders during operations, and you don't view them as value added. And you need judges in this other area, not in the DOD, to perform this other function. Let's just move the lawyers from the DOD over to DOJ and have them be immigration judges for a while. And so they created this policy or program where they're going to take up to 600, maybe more, 600 jags from their current assignments, active duty or national guard, and move them into these immigration jobs.

but immigration judge positions that are highly technical, highly complex areas of law that they're not trained for. We don't study immigration law when you become a JAG. It's not something you practice. There are other specialists that do that. Now the JAGs are becoming those specialists and not just like a prosecutor. They're the judge. They're sitting in judgment of these cases as a supposed neutral arbitrator. And they have to discern the evidence.

They have to apply this law that is different from the Uniform Code of Military Justice or any other regulation that the DOD operates under. And they get two weeks of training. And who knows how deep out deeper or legitimately valuable that training may be. Might be death by PowerPoint, right? Who knows? The actual immigration judges get hired. They get vetted. They get hired.

They get trained. They get continuous supervision for a long period. But that's not going to happen with these jags. they're not leaving the uniform. They're still going to be wearing the uniform on active duty. But, you know, you can picture them in uniform with a black robe over top of it. They're still subject to the orders of the chain of command to include the president. So, for example, if the president said or Secretary Hegsteth said, you know, you're going to cut out this version of or this line of rules in the immigration process.

and I want you to get to a certain quota of deported migrants by such and such date, that's not an obviously unlawful order. It's immoral and stupid, but it's not immediately unlawful. And so as a lawful order, those officers are bound to follow it, even though it would be contrary to what you would think their judicial oath would be. So you're putting these jags in a very awkward performance. professional position where they're doing things they're not trained to do, not well-versed in, and potentially subject to orders that would make them not really neutral judges any. That is extremely

dangerous for the rule of law. It's an abuse of authority. It puts these, the people subject to those laws, migrants or illegal immigrants or any immigrant who's subject to these hearings in a position where they're not going to get an unbiased judge. So due process is important. It's terrible. So these are all the things that are happening with with Jags right now that is deeply, deeply upsetting to someone who just left the JAG Corps. And many of my friends and colleagues are still in the JAG Corps still trying to deal with the aftermath of this and how to how to function in a way that's consistent with their oath of office, consistent with their professional obligations as lawyers under their state bar of license, and the military's own professional rules of conduct for lawyers. much of which seem to be inconsistent with what the administration wants them to do. So it is in your opinion that these boat strikes are illegal. Yes. Yes. Would you like me to explain why? Yes.

Okay. So the first thing to know is it's happening outside the United States, and the military is involved. So military use of force outside the United States. Only two things matter. The domestic authority, domestic legal authority that allows the president to do that, and the international law authority allows the president to do that. Domestically, the only way a president can use the military abroad is if he has constitutional authority to do it or a statute says he can do it. Or she. Constitutional, just without Congress being involved whatsoever, the president can use force to repel an invasion. an immediate attack, you know, we're being, we're being struck by ballistic missiles from North Korea with no warning. He can launch in response without getting a declaration of war from Congress

first. So the Supreme Court has long held that this is fair game for a president to use force as commander-in-chief in response to like an invasion or an attack on U.S. people, the territory, or even against U.S. forces that are stationed abroad. Presidents can do that. But it's for that limited purpose of immediate response, allowing Congress time to debate, do we want to continue doing this or not? President does not have heartblanche to just respond in kind forever. The second way is if Congress says you can do it.

So either declaration of war or an authorization for the use of military force. We haven't declared war since World War II, yet obviously. Obviously, we've been in Korea, Vietnam, Grenada, the first Gulf War, Iraq, Afghanistan. Iraq, Afghanistan in 2002, 2003, 2004, in the immediate with the wake of 2001's 9-11 attack, Congress issued two authorizations for the use of military force. Right in October of 2001, right after 9-11, that authorized the president to go use force in Afghanistan or against any nation, group, or individual that was associated with the 9-11 attacks. If you could demonstrate that they were connected in some way, they're fair game.

That's Congress saying, you go do this. Iraq was the same way in 2002 that led it to the 2003 invasion. Iraq supposedly has weapons of mass destruction. They're involved in global terrorism, et cetera, et cetera, et cetera. You may go use force. The president now has authority domestically to do that. Now, applying that to the boats. The boats are not invading the U.S.

even if they get to the U.S., that doesn't count as an invasion. There's a common international law understanding of what invasion is, and criminals on boats transporting illicit drugs or illegal immigrants does not constitute an armed invasion by a hostile force. It just doesn't. So that basic authority that the president could use whenever does not exist. Secondly, the Congress has not issued an authorization. fees in military force to say go attack these narco terrorists

doesn't exist. He has notified Congress that this is what he's doing, but Congress hasn't done anything in response. Okay, even if he had an authorization, an AUMF, it still has to comply with international law. You can't just

attack anybody because you want to attack. If it's another nation, the law of war, well, international law, the UN charter basically makes war between nations a crime. After World War II, war between nations

is technically a crime under the UN charter that we've signed, every other country has signed, but there are exceptions. Just like you can't kill anybody, period. That's crime. But there are exceptions like self-defense. Self-defense is, by analogy, the same thing on an international scale.

you can act in self-defense with your military if you're being attacked or about to be attacked by another nation. But we don't have that here either. We're not yet facing a threat, at least on current evidence, from Venezuela or anybody else. These are transnational criminal organizations that may be supported in some way or the blind eye is turned, but they're not agents of a foreign government. So we can't impute what they're doing to foreign government. So we can't attack Venezuela right now. In a context where we're attacking groups, individuals or groups, UN Charter doesn't apply. Instead, basic international law says an organized armed group is fair game, like Al-Qaeda. Al-Qaeda would be an organized armed group, an organized transnational terrorist organization that is using force against

civilians and other people in a kind of a traditional military kind of way. You can do that. They become lawful targets like that. We can engage in what's called a non-international armed conflict with those groups. And we did that for 20 plus years. But organized armed group has a meaning under international law. And what these narco-terrorist individuals and drug cartels are are not doing what organized armed groups do.

They're not engaging in military-like attacks against U.S. people, against U.S. forces, or against U.S. territory. They're just not. And they're doing bad things. They're engaging in criminal activity. They're transporting migrants in violation of immigration law. They're transporting drugs in violation of federal criminal law. Those drugs may very well be harmful to people who. choose to use them downstream.

Those migrants might turn out to be some of whom might be criminals. They might lead to dangerous city streets. They might lead to crimes committed by illegal migrants. But crimes committed by migrants or drug deaths caused by the drugs that are being imported are not uses of force under international law, which would trigger self-defense. They're not armed attacks that would trigger self-defense. They're not the kinds of activities that would make what these groups are doing organized armed groups and therefore they can be attacked. So what that means is they are simply civilians.

They are criminal civilians, but they're civilians. And the laws of war, Loak, law of armed conflict that Trump has said applies here, says you cannot attack civilians. They are to be protected. You must conduct your operations trying to prevent civilians from being harmed. The collateral damage term, that applies to civilians and civilian property. We're trying to minimize harm to them. It doesn't mean you can't create harm to them, but it has to be proportional. It has to be, you have to take affirmative steps to prevent it, if it all possible.

Except if what they're doing, the civilian, is called directly participating in hostilities. that has a, that's a term of art, that's a legal term of art that the U.S. understands and has applied in Iraq and Afghanistan for 20 years. In the international law community, other nations, our allies and partners also interpret directly participating in hostilities in a similar way. We have a broader view of it than many of our allies do, but it's still a defined term. And drug trafficking or human trafficking or even weapons trafficking has never been considered, participating in hostilities. And it just doesn't make intuitive sense. Hostilities, you think fighting, shooting at each other.

That's what they mean. Or bombing things or building bombs and blowing up troops. Shooting at civilians, that's hostilities. Drug trafficking is not. Harmful though it may be, it's not hostilities. Which means all they're doing is committing a crime. Terrible crime, but a crime. and you cannot summarily execute criminals.

There's a process. You interdict. You investigate. You seize the evidence. You detain the suspects. You investigate their conduct. You bring a case. You prosecute the case.

You try the case and then you punish. As with any other crime. And that has been what the U.S. has done for decades with the Coast Guard in that law enforcement role. with the assistance of the Navy. But they've never been just attacking drug boats. Even drug boats run by cartels or these transnational terrorist organizations, whatever he's calling them now. So that's why those boat strikes are illegal. They lack domestic authority and they lack international law authority. And every time they're struck, every time those service members are committing a crime. And that is deeply troubling. So I've got so many questions.

off of that, but I think that one thing I want to highlight here is the, it is not as if the law is being completely ignored. The way you make it sound is that the law is being perverted. Yes, I would say that's fair. That's a fair characterization, because Trump administration is couching what they're doing in these legalistic terms. They're saying we're in a non-international armed conflict with an organization. organized armed group. If that were true, yes, then they could strike these boats. They could do what they're doing. But merely saying that they are doesn't mean that they are. The president doesn't have the authority to just declare that they exist without facts, facts that would support them. Facts here,

as explained by the administration, don't support their own labels. And labels might not seem like they matter in the grand scheme of things, but they very much matter if you're going to follow the rule of law. You know, if you're going to label someone a criminal, you treat them like a criminal. If you're going to label someone like a combatant, then you can treat them like a combatant. But they have to be a criminal to treat them like a criminal. They have to be a combatant to treat them like a combatant. And facts, therefore, matter. And the facts are being ignored.

So facts are being ignored and the law is being perverted. What do you think the effect, this perversion and this ignoring of facts, and this sideline of JAG has on the morale and the character of the American military? Well, I can't imagine it's going to be very good. And just speaking anecdotally with my former colleagues and friends who are still on active duty, most of whom, just by nature of what I did, are JAGs. And they feel like they're now in a profession that has lost its. material relevance, at least from the perspective of the Pentagon's leadership. And they're worried

that their role is being minimized or just sidelined completely, which obviously would affect anyone's morale. This is what you've been trained and educated to do, and you've devoted your life to it. And you've sworn an oath to support and defend the Constitution, and you put your life at risk sometimes. This is horrible. As for the rest of the to the military? I can't really say, but the more that we see troops on the ground domestically, the more that they're put in a position where they might be violating constitutional rights of their fellow Americans or doing something that they think is the right thing to do because they could have done it in Iraq or Afghanistan, and now they're doing it in Portland or Chicago or L.A., and it gets, you know, national news.

And the military starts to get painted in this very negative light. Think like the Kent State shootings in the 70s. the military starts shifting away from its currently relatively high perch among public opinion, and it starts falling. And soon it's troops being spat upon. It's troops, it's people not volunteering to join anymore. It's troops no longer staying in, not re-enlisting. Recruiting and retention, I think, would most likely drop. Nothing good can come over.

of American troops on the ground seen like they're violating the rights of other Americans violently. And every time troops are on the ground with weapons, that's a risk. As a, let's call it authoritarian strategy, why go with perversion instead of just ignoring the law? Well, because most modern tyrants, most modern authoritarians don't need to be, they don't need to adorn themselves in king's robes and a crown and say what I say goes. There are enough structural elements built into the system that they can use to their advantage. When Hitler rose to power, he rose to power through mostly legal means available to him by German law, German constitution, things he was able to do and able to convince the Reichstag to do for him that enabled him. that enabled him. And so now he's operating under the color of law. And if you can operate

in the color of law, you're most likely going to survive a longer time. You can tell yourself that you're doing the right thing because you're following the law, even though you manipulated the facts to give you legal authorities to do what you really wanted to do. But now you don't look like whole pot. You don't look like just a crazy, deranged person who's just summarily executing people at whim, now you can say, well, I have the legal authority to deport you to a third-party country where there's a counterterrorism prison where you're never going to see the lead to date again. And I have the authority to do that with very little or no judicial oversight. Why?

Because a statute has allowed me to do that. So I'll do that. So I can say I'm following the law and look like you're doing the right thing, which just makes it harder for the public to reject it as important. improper, as unlawful, as counter to what the Constitution stands for, because it's colored by law. So if I wanted to be a dictator, that's what I would do. That would be the sensible strategy. You use the existing tools that you have and do what you want, but not in an overtly dictatorial way. You just use the authority in a way that you can manipulate and extend the gray boundaries of, the soft edges of as far as you can to the point where people can't say it's unlawful.

It's just maybe unprecedented. We just haven't done it before. But maybe if the president is right, maybe the facts justify it being unprecedented. We should do it this way. 9-11 was unprecedented. And our response to that was unprecedented. But most people would probably agree, at least at the time, would have said, Under the circumstances, this is the right thing that we should be doing.

And I think that's what he's relying upon now. It's the public's acquiescence. Certainly Congress's acquiescence to what he's doing. And the only check, the only medical professionals, doctors involved, are the courts. And they're the ones that are supposed to be neutral. Even if they were nominated by the current administration, they're supposed to be neutral interpreters and employers of the law. and when you really dig into the law, much of what the administration is doing is unlawful.

He's pushing on boundaries. He's trying to avail himself of ambiguities in the texts of these laws. Maybe the courts will agree with it. But if they do, if they do side with the administration's interpretation of these laws, it's the proverbial slippery slope because it would allow any president, not just this president, but any president of any party, to deploy forces domestically whenever he or she says, I think it's required. Facts be damned.

It doesn't matter. And courts won't review it. If he had his way, that's what the courts would say. Courts can't review this decision. You have the authority to make this decision. What you say we're going to defer to. That's his ultimate objective. Hopefully the courts put a break on that and say, no, we, the courts can review what you're doing.

we might defer to you in some way, like we defer to your uses of force abroad, but domestically, now we're talking about constitutional rights of Americans and people inside our country, we're going to apply less deference to you and your assertion of facts, which means the government would have to actually provide true facts to justify what they're doing. And if they can't, then if the courts are doing their job, they're pushed back and say, well, you don't get to do what you want to do. And if the system is working, the executive ranch will say, okay, I'll try again later and stop doing what they're doing. The classic example for this, and what I would hope to be a model for the future, would be the steel seizure case from 1952.

Middle of the Korean War, the steel industry was the biggest industry in the United States. We need steel for tanks, for missiles, for all kinds of armaments, and steel is the biggest part of our economy. The steel manufacturers, the companies, were in a labor dispute with the unions across the country. And the unions were threatening to strike. And if they struck, steel production stops. The war effort gets damaged, impinged, and the economy might suffer. President Trump, or President Truman, tried to have them negotiate and come to a resolution. That didn't work.

So he used what he said was his article two, constitutional. authority as commander-in-chief in present United States to nationalize the steel industry. Take it over for a period of times to keep the mills running. He argued, I need to do this to save our economy and to save the war effort. The owners of the firms immediately appealed. They sued and they appealed and it went really quick to the Supreme Court. And the Supreme Court said, no, you don't have the authority to do this. They're very much. They're very very famous Supreme Court opinion that has been cited billions of times, exaggerating a little bit, but lots and lots of times as a definitive statement of how much power a president has

when he or she might be trying to do something that Congress has already expressed an opinion about. And the upshot of all that was when the court said, you can't do this, Mr. President. the president said, well, I don't like this. I don't like this opinion. I don't like what you're telling you I can't do. But he did order the government to stop seizing the mills. The order to the Secretary of Commerce was rescinded. Don't nationalize the mills.

He obeyed. Because the court said, you can't do this. That is the ultimate end game here. If the court doesn't stand in the way or if they do, try to stand in the way and the president ignores a court order, that's, that is a constitutional crisis. That I don't know how it would get resolved. He's a lame duck president. He's got a Congress right now that won't impeach him. What's to stop him? I'm just going to let that silence hang there for a minute. Let people really stew in that. And then I'm going to ask you to,

to see you out. I'm going to ask you to impossible to answer questions. Okay. The first one. State authorities have been floating the idea of arresting federal authorities that are doing things in their states they don't like. How do you think that would play out? Well, if a federal authority, even though they're executing what they think is federal law, if it violates state law, state has a legitimate claim to detain, investigate, and prosecute that person. Now, the person might have a legal way to maneuver their way out of a prosecution or conviction, but it would not be easy to do.

And if they're exceeding their legal authority, for this way, if they're violating state law, it's probably because the facts that they're doing would exceed what their lawful authorities are under federal law. So if they're violating what they already can do under federal law, it's going to be really hard. for any court to say you can't be prosecuted for this when you're violating state laws already. So I would hope that that possibility would deter federal agents from violating their own authorities and violating state law. But if federal authorities just go in and saying, well, the president said I can do whatever I want, president said use maximum force, president said I can do it, Homeland Security said I could do it.

attorney general said I can do it, then I can do it. And they start interpreting that as I can violate the Fourth Amendment. You know, every state has their own constitution and every state has rights that are very similar to the Bill of Rights in the federal constitution. What the, what the federal agent will be doing would be violating the federal constitutional rights and the state constitutional rights and state laws about what police authorities can do. So they're at risk, and I would hope that risk would deter them from doing it. But I'm not, I'm not all that optimistic that that would deter this particular administration. No, they're not hiring the best people in some of those positions.

Not talking about the National Guard here, which is a whole different kettle of fish, but ICE, Department of Homeland Security people are not, not America's best, I fear. Now, I can't generalize that to even the majority of them, but because of the high recruitment effort that the administration is currently going through and the standards that they're willing to accept and the kinds of missions that they're giving people, even that they're extremely controversial, it would attract a certain kind of person who may not have the competencies, the discretion, the patience, the restraint, or the experience to do what we would expect experienced professional ICE agents to do. and probably what they were doing for many, many years before this. So, yes, it's, they're perhaps recruiting not the best and not retaining the best. All right. Second question. And then I have just a thought and a compliment.

Everything, everything ends. On a long enough timeline, everything goes to zero. There will be a life after this administration. What do we do to make, sure that we are not in this place again. How do we bolster our democracy? Yeah. Well, what I continue to say to people and to myself to kind of bolster my own morale here is that

you have to hit bottom at some point before you can recover. And I think many Americans, and I think this is reflected in the recent No King this day marches across the country and across the world, you know, biggest, biggest anti-government rallies ever in this United States, suggests that many people have had enough and they're willing to step out of their comfort zone and engage in the public sphere and say publicly, I've had enough, you can't do this. The more people see how bad it could get, either for them or their families or their neighbors, the more they will realize that this is so far unprecedented that we cannot stand. The only way you could accept it is if you really do want a dictator,

if you really do want king that is a king in everything but name. And if you're that kind of person, I don't have an argument for you. Like we're temperamentally and ideologically at odds, and we're never going to agree. If you believe that we should have king-like presidential powers, there's nothing I can say that we'll convince you that what he's doing now is wrongful. But because it's so abnormal, so many more people are seeing that. And so many more people are speaking out. So many more people are writing op-ed.

So many more people are blogging about it. So many more people are taking to the streets and engaging in lawful protests, peaceful protests, they don't like what's happening. They're not afraid to say it. You know, they might get arrested by ICE. They might get arrested or detained by the National Guard, but they're willing to do it. And that is a good sign that, like you said, this too shall pass. And that that wellspring of animation that desire to speak out and say, no, this is wrong, will be kind of like a rejuvenation for the civic public. You know, and I kind of hope that it would happen after the first administration,

but certainly after this one, that we will have higher standards for what we're permitting our elected officials to do and say. We will not accept, and maybe I'm just being idealistic and naive and optimistic here, but my hope is that we will not, as a collective, accept something like this happening again, the risk that it could happen to get. And you kind of have to hit rock bottom to come to that realization and take affirmative steps to make sure that doesn't happen again. So maybe that's reforming our election involves, our campaign finance laws. Maybe it's being more picky about who we decide to nominate for major elective office. Maybe it becomes more, more, Congress becomes more

skeptical about who gets nominated for these cabinet positions and actually takes an affirmative a role in saying no, they're rejecting incompetence, rejecting bad actors, rejecting dishonest people, and again, kind of rejuvenating the civic discourse, kind of all the ideals that our framers had initially that we've become cynical about ever since. And that's my hope. Maybe it's naive. I was at the, as an anecdote, I was at the New Kings in deep red South Carolina. And it was the most people I think had ever seen at anything like that here ever. And I was also shocked by the makeup of the crowd, which tended to be a lot of older people,

middle-aged and older people, which also surprised me. My in-laws, to your point, my in-laws, retired Navy capital. So a colonel equivalent, 26 years in the Navy, and his wife, my mother-in-law, long-term Republicans, long-term conservative, went out and participated in their very first protest on that Saturday. And, you know, I've never heard them be political or ideological except for this administration. They've had enough. They're kind of like my model example of people who are not direct. directly impacted by these policies, but can see the direction in which the country is going and are not satisfied with it and don't accept it, won't accept that standard, and are willing to put their feet on the ground and say no. And they're in their 70s.

The other thing that's heartening me, and I know you need to go, but I just have to give the compliment to lawfare real quick, who you write for, is that in many ways, this has administration is not staffed by the brightest bulbs. And we are constantly reminded of that. And I was reminded of that earlier this week when one of your colleagues published a wonderful article about a conversation they had with someone in the administration. And I will link to that. I think everyone should read it to really get a feel for how things are going.

Dan, thank you so much. Where can people find your work? Well, again, thanks for having me. Like you said, I write for law fair quite often. for just security. It's another similar kind of national security curated online venue, mostly professors and scholars and policymakers and practitioners right there. I just had a piece on rules of engagement and Higgs-Seth's comments about them posted a couple weeks ago there. I have a substack now politics by other means. Or you can just look up Dan Mauer and you'll

find me there. And I talk about national security issues. I talk about civic virtues. I talk about the law more generally. So that's just another outlet for me. Another way for me to kind of get my voice out there and register my dissatisfaction and frustration. Sir, thank you so much for coming on to Angry Planet again. It was a pleasure. Thanks. That's all for this week. Angry Planet listeners. As always, Angry Planet is me, Matthew Galt, Jason Fields, and Kevin O'Dell. If you like us, please go to Angry Planetpod.com.

and kick us $9 a month. It helps keep the show going. We are almost entirely listeners supported. We will be back again soon with another conversation about conflict on an angry planet. Stay safe until then.