Daniel Maurer writes on Just Security: US Servicemembers’ Exposure to Criminal Liability for Lethal Strikes on Narcoterrorists. Excerpt:
I see only one viable route to a prosecution: President [Donald J.] Trump fails to grant the servicemembers pardons while still in office and a future administration pursues the cases (with no statute of limitations for murder).
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Trump’s order to the military to kill alleged narcoterrorists on boats in international waters without any legitimate legal ground was morally abhorrent. But it also exposes the servicemembers participating in these attacks to a range of criminal punishments under two distinct legal regimes: federal criminal law (under both 18 U.S.C. § 1111 and the war crimes statute); and the UCMJ (murder and other military offenses like “service-discrediting conduct” and “dereliction of duty”). However, the disinclination of federal prosecutors to hold servicemembers accountable for following an order by the President and for which Trump himself is immune makes the prospect of criminal accountability highly improbable. But that should not cloud this simple truth: the President and Defense Secretary issued an illegal order; that order propagated down the chain-of-command; plans were formulated, mission orders were issued, and the targets were destroyed obediently following that original unlawful command. In this way, the commander-in-chief himself has prejudiced good order and discipline within the armed forces, placing U.S. servicemembers in the position of having to contemplate whether they’d escape justice.
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