Accountability
How are we going to hold them accountable?
I have been thinking about longer term issues to write about but the attack last night on Venezuela jarred me so much that I put aside those thoughts and am doing this as my first post on this Substack.
Thinking aloud by writing is my way to clarify my thoughts about any difficult problem. I’m not doing this for subscription fees. It is open to anyone at no charge. Please feel free to think aloud with me in the comments.
I’m entering the last year of my eighth decade. I spent 6 years in the Navy serving on nuclear submarines for 4 of those 6 years. I remember discussing with shipmates who had served during the Cuban Missile Crisis (before I served) about what they would do if they got orders to launch nuclear armed missiles that could destroy the world and their families. How would they really know that launching nuclear armed missiles was lawful? Last night’s attack on Venezuela suddenly resurfaced all of those memories.
Now, 50+ years later, I’m thinking about what people currently serving might be thinking about with the benefit of much more life experience and education than I had back then.
Enlisted members of the service (I was one) rarely have much visibility into the reasons behind the orders they receive and likely have little or no information as the legality or illegality of those orders. We’re conditioned from boot camp on to follow the lawful orders of our military superiors but we don’t get much grounding about what would be a lawful order versus an unlawful order.
The oath I took has not changed and was:
“I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”
There is nothing in the oath about illegal orders; just the reference to the Uniform Code of Military Justice (UCMJ). There is also no explicit language in the UCMJ about illegal or unlawful orders. There are just references to the duty to obey a “lawful” order or command.1 So, for the enlisted service member, the duty to refuse to obey illegal or unlawful orders is implicit rather than explicit because the UCMJ focuses solely on the duty to obey “lawful” orders or commands.
For this reason, I don’t fault the majority of the service members who were participants in the attack on Venezuela. The penalty for disobeying an order can be severe and these orders appear to have come from the President on down.
So, the responsibility for evaluating whether an order is lawful or not really falls to the most senior officers involved. They, presumably, have had more education and training about lawful orders and have the ability to consult with military Judge Advocate General (JAG) attorneys who can offer legal opinions and guidance.
Were JAG attorneys consulted about whether this attack was lawful?
I don’t know. Late on Friday, February 21, 2025, the trump2 administration purged the top legal officers of the military services, the Joint Chiefs chairman, the Navy’s top officer and the Air Force vice chief.3 hegseth “told reporters that the removals were necessary because he didn’t want them to pose any ‘roadblocks to orders that are given by a commander in chief.’”4
trump then appointed Dan Caine to be the Joint Chiefs chairman. At the time, Caine was retired, a three-star general and had to be brought back into active duty and promoted to a four-star general in order to serve as the Joint Chiefs chairman.5
By these actions, trump was able to install loyalists who would not oppose his orders even if those orders were unlawful.
Were the orders to attack Venezuela lawful?
I think the order to attack Venezuela was clearly unlawful and unconstitutional. Many others have written about this today and I will defer to others who are more versed in this area of law than I am.
With the presumption that the orders to attack were unlawful, what now?
How will we hold them accountable?
The top officers most likely involved in this attack are: the Joint Chiefs chairman, the Army Chief of Staff, the Marine Corps Commandant, the Navy Chief of Naval Operations and the Air Force Chief of Staff. Although these officers are not in direct operational control, they all serve as advisors to the President and Secretary of Defense with the Joint Chiefs chairman being the principal military advisor.
Holding any or all of them responsible for allowing an unlawful attack is difficult because of their rank and the requirements of prosecuting anyone under the UCMJ. So, I’ll just use think about the steps of how to hold the Joint Chiefs chairman accountable.
What’s the process for holding them accountable?
The process would involve a court-martial under the UCMJ. An officer superior to the accused would have to convene the court-martial. For the Joint Chiefs chairman, the only superior officers are the President and the Secretary of Defense. Neither of the current incumbents is going to do this.
Congress cannot court-martial an officer but it could do at least two things:
Impeach the President and/or Secretary of Defense.
Hold hearings to expose the illegality to create public and political pressure sufficient to cause a new President or Secretary of Defense to convene a court-martial.
Defund the current illegal operation making all those involved with continuing the operation subject to prosecution. By publicizing this widely, it could make lower ranking servicemembers very aware of their potential legal jeopardy if they continue to execute orders for the operation.
The current Congress has effectively surrendered its Constitutional authority to the Executive Branch so I don’t have much hope for this remedy either.
Thus, the only hope we have of holding these top officers accountable is with a new administration elected in 2028 and taking office on January 20, 2029. The statute of limitations provides more than sufficient time if there is the popular and political will to do so.
That’s the topic for yet another difficult problem to think about aloud so I’ll close with these questions.
Can we elect a Congress that will reassert its Constitutional authority?
Can we elect a President that will hold everyone in this administration accountable for this and all the other illegal conduct they have committed?
That’s what we as an electorate face going forward.
Are we up to it?
Two last minute questions.
How is trump going to use our military against us if we resist him?
If trump orders our military to act against us, will they follow those orders?
I will not capitalize this man’s name. Capitalization of a proper name is both conventional and a sign of respect. I personally do not have any respect for this man and do not ever capitalize his name.
Thank you for explaining this so clearly. I had no idea that convening a court-martial for someone at that level would require action by the President or the Secretary of Defense—and that reality is incredibly chilling. It really underscores the structural dead end you’re describing, where accountability is theoretically available but practically unreachable under the current leadership.