Bulwark Takes - Command Post: Trump Reportedly Wavering on Livestreamed Execution (w/ Margaret Donovan)

Episode Date: October 14, 2026

Ben Parker and Lt. Gen. Mark Hertling (Ret.) break down the latest developments in Ukraine, including Russia’s escalating attacks on Ukrainian energy infrastructure, the growing rift between Washington and Kyiv, and how Ukraine is imposing mounting costs on Russian forces. They also examine how the Trump administration’s approach is undermining a critical U.S. ally and what the battlefield’s evolution means for the future of modern warfare.Then, former military lawyer and federal prosecutor Margaret Donovan joins Command Post to discuss Defense Secretary Pete Hegseth’s plan to potentially livestream the execution of Fort Hood shooter Nidal Hasan, including the legal questions, national security risks, and concerns about turning a convicted terrorist into a martyr. They also examine the case of Air Force Major Jason Watson, who faces military charges for political speech in uniform and has reportedly spent months in solitary confinement awaiting trial.Get $80 off your first month with promo code SPACE80 at Talkspace.com

Hi, I'm Ben Parker from The Bullwork. Welcome back to another episode of Command Post on the Bullwork takes feed. I'm joined as always by our very own Lieutenant General Mark Hartling, General. This is the long-awaited. We've been promising this for a long time. We're finally doing it, the Ukraine update show. We're going to be joined by a special guest a little bit. But first, we have not talked about Ukraine enough, and we're going to fix that today. We have not, Ben. And I've got to tell you, even though we haven't been talking about it because we've been distracted by so many other things that are going on. Truthfully, I continue to watch what's going on in Ukraine very closely, not just from really good sources like the ISW, the Institute for the Study of War. They produce a daily sit-rep situation report on the war, but also from a lot of OSENT open source intelligence capabilities that I have links to, as well as some conversations I've had with a bunch of active-duty military folks in Europe, both in our country, from our country, and from other countries like the Baltics and Sweden and others that are watching this very closely. I've lost contact with my Polish connection, which I considered one of my better ones in terms of what was going on in the front line. And it's not because of anything happened to him. It's just that we have not been able to connect.

He's been pretty busy. So let's talk about the current state of the war, both from the strategic level, the big picture stuff, but then a little bit more on the details of what has happened. You know, at the very beginning of the war, back in 2022, I actually was in a hotel room before going on CNN and outlined what I thought were the political objectives of both Russia, Mr. Putin, the strategic objectives, and the strategic objectives of President Zelensky. And the ones for Russia have changed dramatically over the the last four years. The one from the ones, the four initial ones from Ukraine have not changed

much at all except President Zelensky, I think, has added two more strategic objectives, not formally, but my conclusion is he has drawn the two additional strategic objectives of holding President Putin accountable for war crimes, number five, and number six is to generate support for joining of European security alliances like the EU and also NATO. So those are two additional things he's thrown into the mix. But now lately with some of the things President Trump has said, he is also actually talking about actions to show that his government is not corrupt. And one of those things might be to hold an election, which he has even offered if he can get a 90-day ceasefire from the Russians.

There is a zero chance of that happening in my view. But nonetheless, what we're seeing from the big picture arena on the war is a continuous changing character of the battlefield and what is happening. And I got to tell you, Ben, we've talked about this a lot, but the United States damn well better be learning from this continuous characteristic and evolution change of war. Secondly, there's the increasingly serious diplomatic disagreements between Washington and Ukraine. That has gone back and forth on multiple occasions. It seems to have gotten worse over the last couple of weeks, and I think the team of Kushner and Witkoff are not helping matters whatsoever because they appear to be more biased toward the Russian point of view than they do to the Ukrainian point of view.

And then finally, the last thing are the increasing legal and strategic implications of Ukraine's campaign against Russia. And we'll talk about that from a tactical perspective because it's having the tactical element of the fight, the things that are going on between battles and campaigns are affecting the strategic nature of the fight. I'll stop there. You want me to continue or you want to ask any questions? Okay, you're muted. I think, Ben, or I'm not hearing you. You know, we've been doing this so long, you'd think I know how to work the buttons by now. Okay.

Let's go a little bit to this diplomatic rift that's been emerging between the United States and Ukraine. It feels like it's been a long time coming, basically since the second Trump administration came into office. What we've seen so far are a few things. One was American pressure on the Ukrainians to stop hitting Russian energy infrastructure, especially oil refineries, oil export infrastructure, things like that. The Ukrainians apparently said, no, why would we stop pitting those things? That's our whole plan to win. We need to do that in order to win.

The Americans said, we'll stop because we want the price of diesel to go down. Not exactly clear that the Ukrainian campaign is having a major effect on the global price of diesel because the Russians weren't exporting diesel anyway. But that's what the Americans wanted. The Trump administration wanted. the Ukrainians said no. Then Trump announced this diesel deal with Russia, whereby the United States will buy some millions and millions of barrels of Russian diesel over the next few months,

which is contrary both to American law and to Russian policy. The Russians, because they were a little bit diesel-hungary, have not been exporting diesel for months now. And they just renewed their diesel export ban. though I guess if this deal goes through, they'll make an exception. And most recently, we have seen, we've talked about Russian attacks in Ukrainian energy infrastructure before. They are really focusing now on attacks in Ukrainian energy infrastructure, especially since Trump announced, apparently out of the blue without talking to anyone, that there was an energy ceasefire between Ukraine and Russia. It seems like the Russians turn around and said, great, we agree.

And then immediately started hitting Ukrainian energy infrastructure as hard as they can. President Zelensky tweeted that just from one strike alone, there are now 600,000 Ukrainians without power, and it's starting to get cold there, so that's a big of problem. And I don't want to, yeah, there's the whole tweet from Zelensky, 39 ballistic missiles and more than 120 attack drones. I'm still not done with everything that's going wrong. The Ukrainians are now also saying that for the first time, they're not getting launch warnings When the Russians launched these missiles from their allies, read the United States. So they have no warning.

There were reports that these missiles were hitting in Kiev before the air raid sirens even went off. That's a new development. And most recently, the Ukrainians have reported that their Starlink connections, which they use to operate a lot of their drones. And if we're also command and control, and that's something you're going to want to talk about. The Starlink connections have been throttled. So you said to us in Slack that that's like, you know, trying to, you know, trying to control. you know, run a drone or organize a battle and you get that spinning beach ball at your computer. So it, this seems like finally the rift in American support for Ukraine that we thought was going to

happen years ago and it seems like maybe it's actually finally happening. Is that your sense? And why now? Yeah, it is accelerating in my view, Ben, and I'll boil all the things that you just said down to one thing. And that is Ukraine has found. a way to impose significant cost on Russia faster than Moscow can convert its superior manpower and resources into battlefield games. So what I'm seeing happening, to boil it down to one thing, is Ukraine is really starting to overwhelm Russia. And it's being seen on multiple fronts. And I think because of the connection between Wittkoff, Kushner, and I'm guessing at this, but the connection between Wittkopf and Kushner and President Putin, Putin is really complaining about the fact that he's in dire straits.

And he's doing it probably in a very nuanced way. But he's basically saying, hey, I need my buddy President Trump to help out here. And the way President Trump is helping out is by standing in the way of Ukraine continuing to do something. some of the things they've been trying to do. You know, you mentioned the ballistic missile and drone attacks over the last couple of days by Russia on the infrastructure. And the main reason it's stepping up is because it's October the 14th. It is already cold in Ukraine, and it's going to get nothing but colder.

The nights, I checked temperature this morning, and the nights are already below freezing in Ukraine. So you're seeing the requirement for energy. But what we're also seeing is, and I'm going to base this on Institute of Study of War, their assessment dated 12 October, says that the Ukrainian countertacks are slowing Russian offensive activity along several important fronts. And in fact, it appears to me that Ukraine is actually gaining some territorial grounds in Denedz, which is the eastern province that has been contested since the beginning, in and around Lyman, which is a critical city, also in the east. Russian forces are continuing to try and conduct attacks against the major cities of

our Kiev and Kupiansk, but there's no confirmed Russian advances. So they're pouring a lot of forces in those areas, but things aren't happening. You know, as you said, the Ukraine forces are saying that they've sustained multiple combat engagements with Russian drones coming in and striking areas. But the bigger thing is that the fact that Russia has now been, again, this is another think tank analysis from CSIS, estimates approximately 1.4 million Russian battle casualties since the invasion started to include as many as half a million Russian dead soldiers. And CSIS also says they've lost a significant amount, a net territory, a net territory in April and May of this year.

So the Russians can continue to fight, but they're not winning anything. They're trying to continue to advance, but that doesn't seem possible right now. Is Russia going back to the strategic objectives that I talk about? They do not currently have the ability to achieve their own political objectives by themselves. So looking for other people, i.e. the United States to help them get those strategic objective. And as you pointed out, the approaching winner is just adding another dimension. But I'll say one last thing in many people's views, the battlefield is no longer described by counting kilometers of land gained by one side or another. It's really all about the diplomatic rift between Russian Kiev, excuse me, the diplomatic rift between Washington and Kiev and what we see is a diplomatic advancement between Washington and Moscow.

Yeah. We're going to talk a little bit later about two stories about the U.S. military, including the planned live streamed execution of the Fort Hood Shooter. But before that, I want to ask you one more question about Ukraine, which is, it seems to me that in broad strokes, here's what happened. The United States supported Ukraine early in the war. Not always as much as the Ukrainians wanted, but they were very grateful for the help early on. then we started to get a little bit of cold feet and then we elected an administration that the vice president said I don't care what happens to Ukraine

we saw the dressing down of Zelensky in the Oval Office in February 2025 by the president and vice president we saw the temporary shut off of intelligence we saw the shut off of direct military aid so the Ukrainians feel abandoned and they have found a way to fight and maybe even win this war without the United States

relying on other partners relying on themselves. And we have lost what could be a very valuable ally, who is currently the best army in the world of fighting the most modern type of war. And with one hand tied behind their back at the same time. Yeah. And so the big losers here is us, right? Like we lost a potentially very, very valuable ally. We've alienated a lot of our other allies along the way. And it's not even like Ukraine, it's like even if we wanted the Ukraine to lose, that's not happening. And the Russians don't appear able to make that happen. So it seems like this is just a huge calamity for us. Yeah, I would, I would, all of that is true. I would put a little bit of caveat of how you wrapped up the

opening of your comments, because what I think was happening, there was a great deal of action with Ukraine and the United States prior to the 2014 invasion of the Dombos and Crimea. That continued. The training continued. The shipping of foreign military. sales with some equipment continued. But then when the 2022 big invasion occurred, Ukraine wanted a lot of stuff right now. And what I would say, having worked with Ukrainian forces, and I've said this before and it's got me in trouble, they were not prepared to accept the amount of things that we were giving them. They had not been trained on these things and it would have been wasted material. But over a period of time, I think the Biden administration, especially

Secretary of Austin was able to not only deliver U.S. equipment over time, but also helped the Europeans deliver equipment over time. But what was happening then is you had a hodgepodge of equipment that was difficult to manage by the Ukrainian military, and they still wanted more. I mean, they literally wanted their allies to field several core-level organizations worth of equipment. And you just don't have that kind of stuff in the stockpile. So when we started to see the amount of stuff going down, it was because we just didn't have the stuff to give them. And now we're seeing that in spades now, aren't we? Yeah. We're having some real challenges in giving them more stuff. Then we had a change of administration and a different approach to all this. As you said,

the aid was cut off and back and forth and congressional approval for aid was not delivered. So that was contentious, but the biggest thing that I see happening is during that period of time, two things happen. The first thing was the Ukrainian armed forces really developed some magnificent ways of fighting without the kind of equipment that most armies have on the modern battlefield. That's number one. And they are doing a magnificent job of deep strikes with equipment they have made inside of Ukraine. But the second monumental thing in my view, and I hate to say this, was it was the appointing of Mr. Wittkov and Mr. Kushner as the envoys to negotiate a settlement to this war after President Trump boldly said he was going to end it in one day. He sent two people that

had no diplomatic skills, did not know Putin from the standpoint of a military and a governmental leader, and unfortunately they were extremely biased for whatever reason toward the Russian side in a very transactional manner. So that's where we stand right now. But what we're seeing, again, is some continued interference. And I'm going to say two things that happened. After President Trump gave his warning the other night about declaring a universal ceasefire, which neither side observed, but crane struck two nights ago. two oil depots in Belgarad, which is one of the oil depots was about 700 miles from the front line.

The other one was about 1,250 miles from the front line. That's pretty significant when you talk about it, conducting that kind of deep strike. And they did it through deception efforts, launching allegedly, and this is open source, launching allegedly, about 500 large balloons that jammed the Russian radar and they got their drones through to strike these oil facilities. Very clever. Yeah, the second thing that occurred and very clever indeed, we should be learning from these kind of things. The second thing was, according to the Wall Street Journal, last night, during major operations by Ukraine, they reported outages of their Starlink platform. Now, we've talked about Starlink a lot.

Let me give to some of our listeners, just a kitchen table explainer of what it is. Starlink is a satellite-based internet communication system. It's something that was developed by Elon Musk, and he still controls most of even though he's delivered some of it to the Ukrainian forces. It's high-speed internet that you can have anywhere in the world because it's not based on just a few satellites in the upper atmosphere. here. It's based on small Earth orbit satellites. So, you know, you can maneuver these things, these platforms all over, and it gives you instant command and control. As you said before,

having outages like that is consider yourself a commander shooting drones that are controlled by Starlings across the front line of the battlefield. And then suddenly, as you're launching them and waiting them for hitting the target, you're going to see that circle of death that all of us have seen on our computers and say, oh, my God, my internet's going down, except here it's combat. And it means people are going to die or not die because of it. So that's kind of a explainer. And unfortunately, I'm skeptical that anything other than Mr. Musk screwing with this and doing it purposely is what occurred.

But I hope I'm proving wrong. I hope so, too. We can talk about this a lot more, but we have a very special guest word. for us, Friends of the Show, or rather, regular Command Post fans will remember, friend of the show, Margaret Donovan, our military legal expert who's going to join us just after a short break. This message is sponsored by TalkSpace. Therapy is important, but let's be honest, it can also be quite expensive. And when life gets stressful, finding the time and money to prioritize your mental health can feel like, you know, one more thing on an already long to-do list. That's why I like what TalkSpace is doing to make therapy more accessible. Like I mentioned an earlier pod, when I was young, I had a real phobia about my parents traveling. It kind of made me paralyzed in fear. Therapy was really important for me then.

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It is such a pleasure to welcome back to Command Post. Our friend, our legal expert, Margaret Donovan, who is a former military lawyer, a former federal prosecutor, and now at Yale Law School. We have a couple very important topics to discuss. One is the planned, perhaps live-streamed execution of Major Didal-Hassan, who is the Fort Hood shooter that Secretary Higgsath announced, Trump is reportedly now reconsidering whether this is a good idea or not. And the other is what's happening to U.S. Air Force Major Jason Watson, who was the protester who called for Trump's impeachment while wearing his uniform. We'll talk about his treatment.

But let's start with Major Hassan, Nidal Hassan. And Margaret, if you could tell us, my first question is, apart from if this is a good idea or a bad idea, is this a violation of the Eighth Amendment that prevents cruel and unusual punishment? So that's a really good question to start with. And also, I'll apologize. I'm on my iPad right now, so I didn't realize you guys were going to get such a view of my living room. But thank you for hosting me nonetheless. So the Eighth Amendment has come up. You shut down your sound, Margaret. I'm sorry?

There you go. Okay, we can hear you now. It's shut down for your sounds like shut down for a second. Oh, okay. Sorry. Well, just to recap a little bit on the Hassan case in general, I think all of us on this show understand the Nadal Hassan case, but I think it's remarkable to note that many people who are younger, this happened in 2009. So if you're looking at the population of, say, middle-aged or military-aged males, so let's say roughly between ages 16 and 25, across the globe and populations that are really vulnerable, for being recruited into ideological extremism, you will probably find that most of them had never heard of Major Hassan or of the horrific attack on Fort Hood. And so even though, you know, this has

been roaring back into the headlines, and that's why I know General Hartling, I texted you after I had first seen the headline because it was so shocking. It's really kind of disappointing and concerning to think that it even is a news topic and that his face is all over the news because you have a person who was largely going to be totally forgotten, and now he is thrust back into the limelight. His celebrity is kind of rising again, all because of this completely ham-handed decision by the Secretary of Defense to adjust the conditions of his sentence. So to go back to your very first question about whether or not this violates the Eighth Amendment, you have to first look at what the sentence actually was.

He went to trial and was sentenced to death in a military court martial. When you are sentenced to death in the military, up until very recently, the Army's prescribed method of execution was lethal injection. But that prescribed method of execution is just pursuant to Army regulation. And that means it's not law. It's not something Congress passed. It's something that the Secretary of the Army can basically override and say, never mind, I want to use the firing squad. The firing squad itself has been found to be not cruel and unusual under the Eighth Amendment, and indeed, it's legal in multiple states. So it's unlikely that either the death sentence or the use of a firing squad will be found cruel and unusual under the Eighth Amendment.

So that leaves you with whether or not live streaming actually changes that sentence. When the Supreme Court has looked at issues involving whether or not a punishment is cruel and unusual, they have typically looked at whether or not the punishment fits into what are called the evolving standards of moral decency. But that has varied across the different permutations of Supreme Courts that we've had over the years. And so in some sense, you could look at some decisions, past Supreme Court decisions, and say, look, public executions are part of the history and tradition of America. They were in place at the time of the founding, and it's entirely possible that the framers of the Constitution intended for public executions to be outside of what the Eighth Amendment prohibits, which is to say they intended public executions to be perfectly legal. But that evolving standards of moral decency doctrine basically says, look, things. change and it's 2026 now and a public execution means that hundreds of millions of people in

America and billions of people worldwide are going to see this and it's going to have these knock-on consequences like for example what I just mentioned you have all of these sort of would-be radicalist or people that are prime for being recruited into radicalism who maybe had never heard of Nadal Hassan or the case but are suddenly having his public execution all over their YouTube pages all over their social media and being used as a recruiting tool and an ability to make him a martyr. And so there just are different considerations in 2026 and there were at the time at the founding. So all of that is to say, I actually don't know if this court, the current Supreme Court, would find it cruel and unusual to have a public execution, which is a little shocking to say.

But I think the more important takeaway from this entire discussion, and I know we've all been having these discussions over the past week because it's such a shocking development in the case, is that I actually don't think he would challenge it. I think that if you went up to Nadal Hassan today and you said, hey, buddy, you still got the death sentence, but I'm going to give you one last wish. I'm pretty sure he would say, can you find a way to live stream my death to the masses?

Can you figure out a way to martyr me and make sure that everybody across the globe knows what happens here? So it is the stupidity of it and the lack of any amount of strategic foresight consideration of national security consequences, that's what's more shocking to me. If he were to challenge it, he could challenge it in something called a habeas action, which is basically when you are in confinement, if you've sort of exhausted all of your appeals in your criminal case, you can kind of challenge the conditions of your confinement or something involving your sentence. But I don't even think he's going to do that. I mean, even if he did, it could potentially tie the case up

in courts for a while. And if it does that, then, you know, maybe his execution outlasts this administration, would sort of defeat the secretary's purpose here. And if he doesn't challenge it, like I said, that kind of tells you all you need to know about the wisdom of this decision. So, I mean, one of the most regrettable things, as I said at the beginning, is that, you know, this is even in the headlines again anyway that he has any oxygen at all. We should add, just since you talked about the spectacle and the imagery that we're considering here, one of the reasons, according to, I think this is CNN, the report of this, that trying to, is considering

rescinding HECS announcement that they're going to live stream it is that apparently Trump did not realize that Major Hassan is paralyzed from the waist down. I believe that was from an injury

he sustained during his attack. I believe he was shot. He's now paralyzed from the waist down. And so it's not like he's going to be this strong, able-bodied, you know, terrorist who's going to be facing the fireman's world.

Like he's going to be, by this point, you know, a middle-aged guy in a wheelchair who they're going to be shooting at. I think he's 60. Yeah, okay. So a close to retirement age guy in a wheelchair who they're going to be shooting at, I don't know if that sends the, the signal of strength and toughness that they're looking for. I would agree with you. Yeah. Go ahead, Margaret. Well, I would just say I would agree with you. I mean, if that is what this, you know, Maga style warrior ethos manliness is, I don't think most people in the military want to be a part of that. I think, too, your commentary on the founding fathers and what they determined in terms of cruel and unusual,

a public execution is one thing for a community that's been wrong. But when you're talking about a public execution that is live streamed to millions of people around the world, I think we have a different context there because there are going to be both advanced nations and perhaps less advanced. nations viewing this drawing different conclusions and and I my take is I think the United States should should desire to be among the more advanced nations of not doing these kinds of heinous acts but that's my opinion yeah the other thing I'd say too your point about the potential support for Major Hassan because he does he did want he's he's repeatedly said he wants to be seen as a martyr for his religion, killing the infidels.

And so this would only contribute to that view of him as a martyr. You know, the president suggesting he might change his mind because he found out the guy was in a wheelchair. That also gives an indicator of a lack of understanding of the entire case by our leaders that are making this decision. And Margaret, as you said before, there actually is, because I looked it up, and I was amazed to read it. There is an actual Army regulation 190-55,

which basically points out how you conduct executions of military prisoners at the disciplinary barracks, Fort Leavenworth, Kansas. It is lethal injection. And yes, the Secretary of the Army can change it, or in our case, the acting Secretary of the Army and the Secretary of Defense. But the question is, why would you want to?

when you have a process and a procedure for doing this and keeping it beyond the pale and re-energizing the messages that are coming out of this particular action. Yeah, I also kind of chuckled in a gallows humor type of way when I realized that the Army also has a regulation for this. We have a regulation for everything, it turns out. Well, we do, yeah. But the regulation also says, as you noted, that the prisoners in the military are held at the U.S. disciplinary barracks at Fort Leavenworth, Kansas. And so the regulation mandates that people are killed there. They're executed there. And so there's this other addition of this added cost of you've got

to transfer Hassan to Fort Hood. You have to build basically an execution chamber that's appropriate for the style of execution that he's facing. You have to get a new unit or you have to have a unit travel from the disciplinary barracks. You have to do a lot of logistical arrangements to make this happen. And at the end of the day, it's all for theater. And when it's all for theater, you have to ask, like, is that theater going to be appropriated by somebody else? Because I'm pretty sure it is. That's kind of the whole thing about how particularly Sunni extremists recruit each other. Well, I'm going to say one more thing, too, is I know for a fact, I mean, that the

Army, as you know, Margaret, there are these things called MOSs in the Army. It stands for military occupational specialty. It tells what each soldier does, like a tanker or an infantry men or a supply sergeant or something like that. I don't know, and I'm almost certain, there is no military occupational, especially entitled executioner. That then becomes a duty. When you have legal injection, that regulation, that 190-55 that I talked about earlier, states who is the injecting official? It's a doctor. Who is observing the execution? It's several soldiers. Not a lot. It's not a public execution. There's a surgeon general

there. There's a chaplain there with him. I'm just taking this forward a little bit, his lawyer and others. I'm taking this forward and saying, okay, you're moving this to Ford Hood, which is the location of several army units. Are they going to task units to provide soldiers that will conduct this execution? How will they be trained? How is it going to detract from the other things? But most importantly, how much of a moral injury is this going to contribute to? Because if you ask one of the last firing squad executions we did in the military was Private Eddie Slovak in January of 1945. And in that execution, they had a rack of rifles with 12 rifles on it,

and it depends on the regulation. Between one and four of those rifles have blank rounds in them. So a soldier who's firing at the individual could claim a deniability in terms of actually being the one that murdered them. But the second thing I'd say is assuming this firing squad is going to be using either M16 or M4 rifles with a 556 caliber bullet that travels at 29 feet per second when it exits the chamber, it is going to rip that body up. And to have that kind of gore and horrific action on a live stream is just contrary to everything I think we aspire to be as a nation. Yeah, it's an extremely violent way to die. And of course, that's precisely how, not by 556 rounds, but of course, all of his victims died by gunshot wound too. But that, to me, just underscores the reason why we don't want to make him a celebrity and we don't want to basically reciprocate the behavior and celebrate it.

You mentioned World War II, but I just, I want to flag this way because it's been driving me nuts. Ever since Secretary Huggsett's interview where he first announced the public live stream, and I think I texted you about this too, sir, at one point. But he basically justified it by saying this is what we used to do in World War II. And he's not wrong because Private Slovak, who you just mentioned, was a deserterer who was the last person who was executed by the military by firing squad. But something there's super points that I want to make about that. One is he likes to invoke World War II and sort of the warrior ethos and the heroism of World War II,

and that's kind of what he aspires the current military to be. But World War II produced war-tested men and leaders that ended up immediately entering into international agreements to try to prevent any further world war from happening. NATO, the Geneva Conventions, the UN Charter. And so he wants to ignore that part. I mean, if you really want to idolize the people, as we probably should, who fought in World War II and won the war for the United States, we should look at what they very intentionally did after, which was set up an international framework to prevent war from ever happening again. We should probably listen to them and give them some amount of respect for what they decided to do when they ended that war. Can I just add one more thing?

Because that's such a good point. Yes. The other thing is, Hexath constantly repeats this refrain. the military is better. You're the best 1% of America. The rest of the country doesn't understand you. Because you join the military, you are superior. And that is not the military that won

World War II. In fact, the all-volunteer force arguably has not accomplished anything near what the massive draft forces did of World War II, World War I, the Civil War. Every time the United States has won a very large, like,

peer-on-peer war, it's been of the draft force that represented all of America, not the selective 1% sorry just got some of my nerves figured it out of there no i'm i'm totally with you and it involved complete civic engagement by the civilian population by doing their sort of their own duties at and at home you know women going into factories and taking jobs that they wouldn't normally take and doing all types of things that supported the troops abroad you had a full country engagement in those wars you did not have this device as like you know it's us and we're the superior warriors and you guys can all sit there and don't

worry about what we're doing it's that's completely right The last small point that I wanted to make is that he also implied that the firing squad was used in World War II. And again, like we said, that's true with the incident of Private Slovak. But after World War II, after the Nuremberg trials, a group of Nuremberg defendants were sentenced to death. And a subset of them requested very specifically to be put to death by firing squad. The reason why they wanted to be put to death by firing squad is because firing squad is considered a soldier's death and indeed Private Slovak was executed by firing squad because he committed a soldier's crime. He committed desertion. And so this idea, and the International Committee denied it, by the way, they were hung.

They said, you don't get a soldier's death. You're going to be hung and all of them are hung. So I just, that, like, nuance is just totally lost on the secretary or he just doesn't, you know, doesn't have that knowledge at all. I will probably go for the latter because, again, he doesn't seem to have, like, a firm grasp on the facts of the Hassan case, let alone, like, what has happened in the past 100 years about the actual history of World War II other than like it looked, it seemed cool to him. So anyway, it just, it kind of drives me nuts that, you know, that is the framework that he falls back to to say, this is why we need to do executions and this is going to make us great again. But he's ignoring the outcome of World War II, the specific inheritance

that the greatest generation left us with those international agreements. And the idea that a firing squad actually is the preferred death of people who were convicted at World War II and they were denied it on principle. Right. I want to ask one more question on this side case before we move on to Major Watson. And, you know, this is a question I hear lawyers ask all the time, which is like, who can actually sue here? And because this is a military court martial, I'm eager to hear the answer. But let's say, for example, I had a six-year-old child who sometimes gets on the internet. And I said, excuse me, I would not like the government to live-stream a violent execution like this. because even if I can keep my six-year-old child, even back in 1781,

if I could have kept my six-year-old child away from the public square in execution, I can't ever be sure that my child won't find this video on the internet. It'll live forever. Can I go to, I guess, a federal court in Texas or somewhere and say I'm suing to try to get the government to stop? Do I have any sort of hope? Is there anyone who can stop this? So that's such an interesting question,

and it's one that legal experts and military, legal experts have been debating plaintiff's lawyers have been debating over the past week or so. And I actually don't know that there is, there are many people who would have standing to challenge this. I think in that scenario that you just posed, I'm a parent of a child who might watch this, I think that a court would say, like, look, you don't have an injury in fact. You don't, your child didn't actually watch it. And that's just too much of an intervening factor for, you know, to prevent the child from watching it. We can't control everything that you see. I will also note that the chairman of the Federal Communications Commission has basically said,

that's not up to us. It's not, doesn't matter whether or not it's under FCC regulations or not, because this is going to be aired on some type of government sanctioned live stream. Who knows what that is? That would also fall to, you know, service providers, for example, if it violated YouTube's terms of service or X's terms of service, although I'm not clear if anything violates excess terms of service these days. So that would kind of fall to those like private entities as to whether or not it gets re-aired. But one avenue that I've actually been thinking of a lot that I think could be interesting is under, if you were prosecuting a federal criminal case, there's something called the Crime Victims' Rights Act. And when I was a prosecutor, it basically required me to go back to the victims of a crime that I was

prosecuting, whether it was like, you know, survivor, surviving family members of a functional overdose, survivors of a violent crime, child exploitation offenses. And you basically have to get the position of the victim. You have to present that position to the court. There's a UCMJ, Uniform Code, of military justice equivalent of that. It basically requires the prosecutor to keep the victims of a crime informed of any major development of the case. Now it's a little bit tricky because in this instance,

the sentence itself hasn't changed. And adjusting the sentence would certainly be something that you would want the victim's input on. The sentence itself hasn't changed. He's still sentenced to death, but certainly the circumstances of it have been modified in a very significant way. So I don't know if that's a firm ground to challenge

if any of the victims wanted to say, hey, you never checked with us. to say that we were going to live stream this. To me, that could probably be the next most viable way of asserting standing of somebody who's directly connected to the case and to the crime itself. And then I, you know, the fact that there are witnesses in general, this is probably one point also worth making the Army Regulation 190-55 that you cited, sir, a few minutes ago. It actually does allow for witnesses, as you said, but it doesn't allow for public live streaming. It basically is silent on that. on that, but one of the restrictions under that Army regulation is that nobody under the age of 18 can view an execution. And so again, that's just policy. The Secretary of the Army, the Secretary

of Defense can overturn it, but it does give you an idea of, you know, the principles that sort of underpin that regulation and the norms and standards. So if you were going to then, I don't know, if you had some way to challenge this in the Supreme Court, I think you could possibly point to those regulations and say, like, look, this was never envisioned to have children watch. But by live streaming it, you're kind of opening that flood game. That's interesting. Fascinating. Thank you, Margaret, for that discussion. Let's hit that second topic, Ben. Yeah, let's do it. So this is Major Justin Watson, who was arrested on July 1st. He was on the steps of the U.S. Capitol in uniform, where he had a sign that said impeach, convict, remove,

excuse me, correct me if I'm wrong, but there's no question that that is the type of political speech you are not allowed to engage in while wearing the uniform. So he did commit a military crime. He did so voluntarily and willingly because he thought that was his duty. The issue here is that according to his lawyer, again, he was arrested on July 1st. According to his lawyer, he's being held, quote, in solitary confinement 24 hours a day. That's the thing. Margaret, if I can inject myself before you answer the question, because I got a lot of heat, because I said publicly on air, yes, this guy should be charged. This is a criminal act under Uniform Code of Military Justice, and he knows better, and he purposely did it,

so he should be charged with the crime. Whether or not you agree with him or not, whether or not you think his actions were admirable or brought about a great deal of courage, that doesn't matter. He knows better than this as an Air Force officer wearing the uniform on the steps of the Capitol. This was planned out. But the additional, and this is where Margaret, you come in, because I know you're going to back me up, partly on the charging of this criminal act, but what has happened since seems to be out of control.

I actually had to charge somebody for this during my career for this kind of. public display. But I got to tell you, that individual was not immediately put in solitary confinement for several months awaiting trial because it is not a violent act. It was a matter of conscious. So Margaret, continue on from there in terms of what has happened to this young major. Yeah, well, you know, I agree with you, sir. I think most, it's interesting to see the divide, the civil-military divide on this issue because I actually told some of my students about out this too, what do you think about this if you're a veteran versus if you're not a veteran? And by and large, most of the veterans are like, you can't do that. You just can't go in uniform

and make these political statements. And to your point, like, I don't, you know, I don't think that the criminality of it is actually really in question in terms of the UCMJ. And the military service members have a reduced First Amendment right when they're wearing the uniform. That stuff has been litigated for years. And, you know, with the real sort of turning point, at as you mentioned, is like, what happens after you get arrested? So he was arrested that I just saw his charge she was released. He had a preliminary hearing recently, which is like a just initial threshold hearing you have when you're charged with felonies in the military. And he was charged with Article 88, which is contemptuous words, Article 92, which is failure to obey a lawful order,

and Article 133, which is conduct and becoming an officer. He was, as you said, he was an 04, an Air Force major. So I don't, I mean, I'm sure you've charged those for worse. You've probably had to prefer charges on people for maybe not Article 88, but certainly a 90. or 133, and then you probably got asked your position on pretrial confinement. Pretrial confinement in the military, you know, I will say, and I have the experience of having done it in the military and also done it in the civilian world. And I will say it was much simpler in the military to accomplish free trial confinement than it is in the civilian federal world.

There's a lot more, I think, scrutiny that goes along with confining somebody, which is unfortunate because in the criminal law concept, it should really be a similar standard. That said, you can order somebody to pretrial confinement under something called the Rule of Fort Marshall 305, and you can order them to pretrial confinement if they, first of all, you have to have a basic probable cause finding that they actually have committed a crime, right? You're not just doing this to random people. But once you have that, you would establish that they're either a flight risk or there's a risk of committing serious misconduct. Now, crucially, after his first arrest, I believe he did, and I don't know the facts of the case directly. So, you know, forgive me if I'm getting some of these wrong. But broadly, I believe he did an interview after that first arrest, and that's sort of what triggered his pretrial confinement. He basically was arrested on the steps and then either went on CNN or some other sort of major platform and continued to basically do the violations that he was initially charged with. And so I don't think he's a flight risk. So it must be the just... Can I ask your question? Can I interrupt a second? Do you

sync and then initial charging, there was a gag order placed on? That's a good question. And I have to take a closer look at Article 92 charge. That could have been the failure to obey an order if they told him to stop, you know, stop doing what you're doing. That would have been a lawful order if they were telling him not to continue to speak. And that may be the basis of his failure to obey an order charge or could be a general order that just restricted that type of speech. But that's entirely possible. And so, you know, continued violations might be a basis in some instances of pretrial confinement. But also importantly, when you are committing somebody to pretrial confinement,

you are supposed to do basically the least restrictive version of it. So if there are not lesser forms of restriction, that can basically control the issue that you're worried about, either flight risk or further serious misconduct, you have to go with that least restrictive version. So the most recent news, I think, has updated that he's been in solitary confinement for quite some time. And so I think to most people, that seems pretty extreme. Now, all is not lost. If he ends up pleading guilty or if he ends up being convicted, he can actually, there's a

vehicle in the military where you can basically convert your pretrial confinement into time served if what you've done pretrial actually amounts to punishment. He's got to make a motion. His lawyer will have to make a motion. They'll have to show that this was more restrictive than necessary. and a military judge could basically look at it and say, okay, you did three, I'm going to sentence you to 60 days confinement, but you did 30 days in solitary, so I'm going to say all of this is time served. So, you know, there's some consolation and that it's possibly not entirely lost time. But it's certainly, you know, it seems on its face. And again, without knowing that the sort of detailed contours of the facts of the case, on its face, it seems pretty excessive. Yeah. And Margaret, I know I'm putting you on the spot with this question. But I don't know the extremes of punishment that he could get for those three charges. Do you know what they might be under the UCMJ? Yeah, you know, I want to run back. It isn't. I mean, there are felony offenses, right?

So they're probably over a year in prison. And I'm sorry, I don't know that off the top of my head. I should have getting a little rusty a few years out of the Jaguar. But they're all felony offenses. So, you know, he could be looking at over a year in prison. And it's, you know, it is, it's pretty significant. And you can be discharged at, you know, if he goes to a general court marshal, it means that he could face a dishonorable discharge, which is really, you know, sort of life-changing event for people to have that. It's, again, it's the equivalent of a felony conviction.

And if it goes, like I said, to a general court martial, then that could be the ultimate result. He will get a jury of his peers. So if he went to court-martial, he would have to have basically only 0-4s and up. So the idea is like you couldn't have somebody who you outrank on a court martial panel. A court martial panel is the same thing as a civilian jury. We just call it a panel in the military system. So it would have to be basically higher, field grader up officers on his panel. And I don't know how they would feel, but I feel like most of them would probably, you know, get to a conviction pretty easy query whether or not they'd, where they'd go for a sentence.

Yeah, this is a, for the military, this is a pretty cut and dry case. I mean, there's no doubt in my mind and not trying to pin something on the guy, but it is a violation, clear-cut violation, and he did it purposely without any mental reservation. And having been a general court-martial convening authority during the last four years of my time in the service, you know the intricacies of these trials and what a court-martial looks like. And especially, as Margaret pointed out, when you say jury of your peers in the civilian worlds, it's the jury pool. It's people being selected to sit the jury. As Margaret just pointed out, it is someone of a higher rank than you that's on your jury, or at the same rank or higher, as I recall. So that makes it even tougher because you've got some relatively savvy people judging a major who committed an act that everyone knows is, you know, against the Uniform Code of

Military Justice. Yeah, it's, you know, it's a tricky case. And like I said, it's just, it's interesting to observe how it's being received by civilians versus by veterans. And, you know, it's certainly, I guess, concerning to know that pre-trial confinement is being used in that way. But there really is very little oversight. I mean, it's, like I said, it's basically.

just all within this sort of universe of military criminal justice. So I think the most immediate form of relief he could get would be later, if he's not released or doesn't, you know, make a case to be released, would be later trying to apply to have this time count as part of his sentence. We should definitely keep the story in mind going forward. But for now, I'm afraid we'll have to leave that to future episodes because we've gone long. But thank you so much for joining us, Mark. I want to have you back again soon. You are the expert, and we absolutely can't wait to have you back on the show because I'm sure there's going to be more legal issues discussed. But thanks for joining us again.

And thanks everyone for watching CommandPest. Thanks for wrapping me. Okay.