Factually bankrupt analysis doesn’t make unlawful orders lawful.
Military and intelligence personnel have an affirmative obligation to disobey manifestly illegal orders. But when a group of Democratic lawmakers, all of whom are veterans or former intelligence officers, released a video reminding their former colleagues of this obligation, President Donald Trump accused them of sedition and threatened them with death. The Pentagon has now announced that it is investigating one of those Democrats, Senator Mark Kelly, and could even court-martial him.
Part of being a lawyer is giving formal legal opinions to one’s clients. These opinions are intended to provide clarity as to a client’s legal obligations in uncertain situations. Thus, clients often seek out such opinions in an effort to cover themselves down the road. If their actions are later questioned, they can say that they sought and followed the advice of an attorney. Doing so is not a bulletproof defense—their attorney may, after all, have been wrong. But it does offer powerful evidence that any violation of the law was not intentional.
Except, of course, if opinions are based on false factual premises; these typically carry no weight in court. The OLC memo may be just such an opinion, as it seems to be based on fraudulent claims about the nature of drug trafficking from Venezuela. Military officers who rely on an opinion that they reasonably should know is premised on a false set of claims do so at their own peril.
According to The New York Times, the memo is “said to open with a lengthy recitation of claims submitted by the White House, including that drug cartels are intentionally trying to kill Americans and destabilize the Western Hemisphere,” and that, therefore, the cartels’ ships are a legitimate military target.
