David French was hired by The New York Times to be a conservative opinion writer. He is a lawyer who practiced commercial law, then joined the military during the war in Iraq and served there as a lawyer. After deployment, he was a writer for the conservative National Review.
His explanation of the “laws of war” and the “rules of engagement” was very helpful to my understanding of current events, which is why I share it now.
He wrote:
In their military campaign in South America, Donald Trump and Pete Hegseth aren’t just defying the Constitution and breaking the law. They are attacking the very character and identity of the American military.
To make this case, I have to begin in the most boring way possible — by quoting a legal manual. Bear with me.
Specifically, it’s the most recent edition of the Department of Defense Law of War Manual. Tucked away on page 1,088 are two sentences that illustrate the gravity of the crisis in the Pentagon: “The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal.”
Here’s another key line: “It is forbidden to declare that no quarter will be given.” A no quarter order is an order directing soldiers to kill every combatant, including prisoners, the sick and the wounded. The manual continues, “Moreover, it is also prohibited to conduct hostilities on the basis that there shall be no survivors, or to threaten the adversary with the denial of quarter.”
Before we go any further, it’s important to define our terms. This newsletter is going to focus on the laws of war, not a related concept called rules of engagement. The laws of war reflect the mandatory, minimum level of lawful conduct, and all soldiers are legally obligated to obey them at all times and in all conflicts.
Rules of engagement are rules devised by commanders that are often more restrictive than the laws of war. For example, when I was in Iraq, our rules of engagement sometimes kept us from attacking lawful targets, in part because we wanted to be particularly careful not to inflict civilian casualties.
In my service, we were often frustrated by the rules of engagement. We did not, however, question the laws of war.
There are now good reasons to believe that the U.S. military, under the command of President Trump and Hegseth, his secretary of defense, has blatantly violated the laws of war. On Nov. 28, The Washington Postreported that Hegseth issued a verbal order to “kill everybody” the day that the United States launched its military campaign against suspected drug traffickers.
According to The Post, the first strike on the targeted speedboat left two people alive in the water. The commander of the operation then ordered a second strike to kill the shipwrecked survivors, apparently — according to The Post — “because they could theoretically call other traffickers to retrieve them and their cargo.” If that reporting is correct, then we have clear evidence of unequivocal war crimes — a no quarter order and a strike on the incapacitated crew of a burning boat.
And if it’s true, those war crimes are the fault not of hotheaded recruits who are fighting for their lives in the terrifying fog and fury of ground combat but rather of two of the highest-ranking people in the American government, Hegseth and Adm. Frank M. Bradley, the head of Special Operations Command — the man the administration has identified as the person who gave the order for the second strike.
My colleagues in the newsroom followed on Monday with a report of their own, one that largely mirrored The Post’s reporting, though it presented more evidence of Hegseth’s and Bradley’s potential defenses. Hegseth, our sources said, did not order the second strike, and the second strike might have been designed to sink the boat, not kill survivors.
But if that’s the explanation, why wasn’t the full video released? The administration released limited video footage of the first strike, which created the impression of the instant, total destruction of the boat and its inhabitants. Now we know there was much more to see.
At the same time, Hegseth and the Pentagon have offered a series of puzzling and contradictory statements. Sean Parnell, the Pentagon spokesman, told The Post that its “entire narrative was false.”
Hegseth weighed in with a classic version of what you might call a nondenial denial. In a social media post, he said the Post report was “fabricated, inflammatory and derogatory,” but rather than explain what actually happened (and make no mistake, he knows exactly what happened), he followed up with an extraordinary paragraph:
As we’ve said from the beginning, and in every statement, these highly effective strikes are specifically intended to be “lethal, kinetic strikes.” The declared intent is to stop lethal drugs, destroy narco-boats, and kill the narco-terrorists who are poisoning the American people. Every trafficker we kill is affiliated with a Designated Terrorist Organization.
“Biden coddled terrorists,” Hegseth wrote later in the same post. “We kill them.”
We shouldn’t forget that this incident occurred against the backdrop of Hegseth’s obvious disdain for military lawyers. He has called them “jagoffs” and — along with Trump — fired the senior military lawyers in the Navy and Air Force.
We also know that the commander of Southern Command, which is responsible for operations in Central and South America, Adm. Alvin Holsey, announced that he was stepping down after holding the position for less than a year. As our newsroom reported, two sources “said that Admiral Holsey had raised concerns about the mission and the attacks on the alleged drug boats.”
He announced his departure in October, weeks after the September strike.
Unlike many wartime incidents, airstrike incidents can be rather easy to investigate. Unless an airstrike is in response to an immediate battlefield emergency, the intelligence justifying the strike and the orders authorizing it are frequently preserved in writing, and the video and audio of the strikes are typically recorded. If this Pentagon, which proudly calls itself the “most transparent” in history, were to release the full attack video and audio, it would help answer many questions.
It’s a mistake, however, to limit our focus to the legality of this specific strike — or even to the important question of the legality of the Caribbean strikes in general. We live in an era in which our nation’s first principles require constant defense.
In other words, as we dig into incidents like this one, we cannot presume that Americans are operating from a shared set of moral and constitutional values or even a basic operating knowledge of history. We will have to teach the basic elements of American character anew, to a population that is losing its grasp on our national ideals.
The laws of war aren’t woke. They’re not virtue signaling. And they’re not a sign that the West has forgotten how to fight. Instead, they provide the American military with a number of concrete benefits.
First, complying with the laws of war can provide a battlefield advantage. This year I read Antony Beevor’s classic history of the end of Nazi Germany, “The Fall of Berlin 1945.” I was struck by a fascinating reality: Hitler’s troops fought fanatically against the Soviets not simply to preserve Hitler’s rule (most knew the cause was lost) but also to slow the Red Army down, to buy more time for civilians and soldiers to escape to American, British and French lines.
In short, because of our humanity and decency, Germans surrendered when they would have fought. The contrast with the brutality of the Soviets saved American lives.
I saw this reality in Iraq. By the end of my deployment in 2008, insurgents started surrendering to us, often without a fight. In one memorable incident, a terrorist walked up to the front gate of our base and turned himself in. But had we treated our prisoners the way that prisoners were treated at Abu Ghraib, I doubt we would have seen the same response.
Men will choose death over torture and humiliation, but many of those men will choose decent treatment in prison over probable death in battle.
Second, the laws of war make war less savage and true peace possible. One of the reasons the war in the Pacific was so unrelentingly grim was that the Japanese military never made the slightest pretense of complying with the laws of war. They would shoot shipwrecked survivors. They would torture prisoners. They would fight to the death even when there was no longer any military point to resistance.
We were hardly perfect, but part of our own fury was directly related to relentless Japanese violations of the laws of war. We became convinced that the Japanese would not surrender until they faced the possibility of total destruction. And when both sides abandon any commitment to decency and humanity, then the object of war changes — from victory to annihilation.
Even if only one side upholds the law of war, it not only makes war less brutal; it preserves the possibility of peace and reconciliation. That’s exactly what happened at the end of World War II. For all of our faults, we never became like the Soviets and thus have a very different relationship with our former foes.
Finally, the laws of war help preserve a soldier’s soul. We are a nation built around the notion of human dignity. Our Declaration of Independence highlights the worth of every person. Our Bill of Rights stands as one of the world’s great statements of human dignity. It is contrary to the notion of virtuous American citizenship to dehumanize people, to brutalize and oppress them.
We are also a quite religious society, and all of the great faiths that are central to American life teach that human beings possess incalculable worth.
If we order soldiers to contradict those values, we can inflict a profound moral injury on them — a moral injury that can last a lifetime. I still think about a 2015 article in The Atlantic by Maggie Puniewska. She described soldiers haunted by the experience of the wars in Iraq and Afghanistan.
“Some of these soldiers describe experiences in which they, or someone close to them, violated their moral code,” she wrote, “hurting a civilian who turned out to be unarmed, shooting at a child wearing explosives, or losing trust in a commander who became more concerned with collecting decorative pins than protecting the safety of his troops.” Others, she said, citing a clinical psychologist who worked with service members who recently returned from deployments, “are haunted by their own inaction, traumatized by something they witnessed and failed to prevent.”
There are moral injuries that are unavoidable. I’m still haunted by decisions I made in Iraq, even though each one complied with the laws of war. Armed conflict is horrific, and your spirit rebels against the experience. But I can’t imagine the guilt of criminal conduct, of deliberately killing the people I’m supposed to protect.
In fact, when I first read the Washington Post story, I thought of the terrified pair, struggling helplessly in the water before the next missile ended their lives. But I also thought of the men or women who fired those missiles. How does their conscience speak to them now? How will it speak to them in 10 years?
I want to close with two stories — one from Iraq and one from Ukraine. There was a moment in my deployment when our forces were in hot pursuit of a known terrorist. We had caught him attempting to fire mortar rounds into an American outpost. Just when we had him in our sights, he scooped up what looked like a toddler and started running with the kid in his arms.
No one had to give the order to hold fire. There wasn’t one soldier who wanted to shoot and risk the toddler’s life. So we followed him until the combination of heat and exhaustion made him put the child down. Even then we didn’t kill him. We were able to capture him without using lethal force.
I’ll never forget that day — and the unspoken agreement that we would save that child.
Now, let’s contrast that moment of decency with the stories I heard in the town of Bucha, just northwest of Kyiv. It was the site of some of the most intense fighting in the first phases of Russia’s invasion of Ukraine. As I walked in part of the battlefield, I heard the stories of Russian soldiers looting and murdering their way across northern Ukraine.
One woman told me that the Russians shot a neighbor, a civilian, in his front yard and then threatened his wife when she tried to leave her home to retrieve his body. So he just lay there, day after day, until the Russians were finally driven back. That’s the character of the Russian military, and it’s been the character of the Russian military for generations.
Something else happened when I first read the Washington Post story; I instinctively rejected it. The account was completely at odds with my experience. There is not an officer I served with who would issue a no quarter order. There is not an officer I served with who would have given the order to kill survivors struggling in the water.
But I also knew that Hegseth is trying to transform the military. As The Wall Street Journal reported, he has been on a “decades-long quest” to rid the military of “stupid rules of engagement” — even to the point of becoming a champion of soldiers convicted of war crimes. In one of his books, he wrote that he told soldiers who served under his command in Iraq to disregard legal adviceabout the use of lethal force.
I don’t think that all of our rules of engagement are wise. I have expressed profound doubts about many of the rules that were imposed in Iraq and Afghanistan that went far beyond the requirements of the laws of war. Not every soldier accused of crimes is guilty of crimes.
But there is a difference between reforming the rules and abandoning the law — or, even worse, viewing the law as fundamentally hostile to the military mission. There is a difference between defending soldiers against false accusations and rationalizing and excusing serious crimes.
The pride of an American soldier isn’t just rooted in our lethality. It’s rooted in our sense of honor. It’s rooted in our compassion. We believe ourselves to be different because we so often behave differently.
Hegseth, however, has a different vision, one of unrestrained violence divorced from congressional and legal accountability. If that vision becomes reality, he won’t reform the military; he’ll wreck it. And he’ll wreck it in the worst way possible, by destroying its integrity, by stripping its honor and by rejecting the hard-earned lessons and vital values that have made the American military one of the most-trusted institutions in the United States.
