Not long after beginning his second term in office, President Donald Trump addressed leaders in the Department of Justice: “So now as the chief law enforcement officer in our country, I will insist upon and demand full and complete accountability for the wrongs and abuses that have occurred.”
He was, of course, referring to “wrongs and abuses” he believed were committed against him by that very Department during the interregnum Biden administration. To his critics, this was less a call for justice than it was for retribution. Sixteen months into his second tour of duty and confident in his own criminal immunity, Trump’s unilateral use of military force domestically and abroad is widely believed to be illegal by most national security law experts and courts. This has made his call for “full and complete accountability” seem both hypocritical and possibly a dead-end. The message to the force is clear: Secretary of Defense Hegseth’s pithy refrain of “maximum lethality, not tepid legality” serves as his strategic intent for managing the war in Iran and his lethal force against Latin American gangs and cartels. Presumably, this leaves accountability a moot or irrelevant point (if nobody’s doing anything wrong, for what do we need accountability?).
Nevertheless, accountability remains an imperative if one subscribes to the rule of law. There is no presidential or wartime exception. The rule of law remains the bedrock constitutional constraint on the chief executive. The president has a constitutional duty to “take Care that the Laws be faithfully executed” and, like other federal officials, swears an oath to “preserve, protect and defend the Constitution” (emphases added).
The question of accountability for the crimes committed at the direction of a president is a difficult one that has been asked regularly since Trump’s second term began. Among those crimes, the military’s Operation Southern Spear looms large for those skeptical that accountability will find the appropriate target. These lethal strikes on alleged “narco-terrorists” in the Caribbean and eastern Pacific Ocean since September 2025 have been thoroughly analyzed and roundly condemned by national security and military law experts as unlawful on several levels: as murder and extrajudicial killings under domestic criminal law and international human rights law; as beyond the unilateral Article II powers of the president; as violations of the War Powers Resolution; and even the laws of war assuming arguendo that this is a legitimate armed conflict in which those laws apply (to be clear, it is not).
In the wake of the Supreme Court’s Trump v. United States decision that created a rule for presidential criminal immunity, Trump is unlikely to face domestic prosecution in the future. But that decision says nothing about immunity for all the other subordinate government officials, including military servicemembers, involved in illegal acts. The uniformed personnel, the intelligence officers, and others who actively participated in these lethal strikes are subject to potential prosecution. This analysis focuses on military personnel, and asks the hard question any future U.S. administration committed to the rule of law will need to confront: if criminal prosecutions are ever to be used to hold participants in these unlawful uses of force to account, what transparent, reasoned, non-arbitrary standard should be used for deciding who in uniform should be subject to criminal liability for executing these patently illegal missions?
The answer is found in the four “requirements for exemplary conduct” already encoded in federal law. While traditional discretionary considerations remain relevant and useful, the additional considerations found in that legislative standard of conduct justify limiting prosecution to only certain commanders and “others in authority” in the relevant chain-of-command executing those strikes.
Prosecutions are Unlikely, But What If?
Last September, not long after the Trump Administration began reporting on the military’s lethal strikes on alleged drug-traffickers, I described how U.S. servicemembers could be held accountable under both the federal criminal code and the Uniform Code of Military Justice (UCMJ) – the military’s specialized code for prosecuting and punishing offenses by court-martial. At the time, there had been three such strikes (there are now more than 200), and I was not confident in the prospects of holding anybody, least of all servicemembers, blameworthy. I wrote: “[t]here remain strong reasons to assess there will be no criminal accountability for these extrajudicial killings,” pointing to the possibility that Trump will issue a blanket pardon before he leaves office, or – more likely – the reticence of any military prosecutor or DoJ prosecutor to charge a servicemember for carrying out an operation for which the current President and the DoJ’s Office of Legal Counsel claim servicemembers are immune from prosecution. To do otherwise would be to simultaneously admit the administration’s wrongdoing and scapegoat those in uniform.
I was less skeptical of a future prosecution in a Democratic administration. Yet, I continue to believe answering for the injustices committed by the American military at Trump’s command is going to be a hard sell. First, DoJ’s “golden shield” policy purporting to effectively immunize executive branch agents who acted consistently with an Office of Legal Counsel (OLC) opinion, even if that opinion was later rescinded and condemned, is one reason why the probability of a federal murder trial or court-martial is improbable. A future DOJ need not maintain that policy, of course, and this analysis proceeds on the basis of that policy having been rescinded or otherwise not applied to potential prosecutions for the murders at sea.
Second, political supporters of the president will almost certainly argue that prosecutions for unlawful conduct he ordered is political retribution. And third, some might conclude that prosecutions for this conduct would essentially be scapegoating the military for Trump’s and Hegseth’s illegality. Putting the second and third concerns together, prosecutions could appear to be political retribution taken out on a nonpartisan military. The appearance of political retribution was a major reason the Justice Department under President Obama chose not to pursue charges against military, private contractors, or intelligence agency officials who participated in what could only be described as torture of detainees during the preceding Bush Administration. “At a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past,” Obama explained. The result, unfortunately, is a prosecutorial precedent of impunity even for grave crimes sanctioned by senior U.S. leaders and carried out by government actors.
Ironically, the more the military commits these murders at sea under the false legal reasoning of engaging in an armed conflict, the less likely any single member will be brought to justice. Even if a future Democrat-led DoJ or Pentagon were to acknowledge that these strikes were not lawful acts of war but rather extrajudicial killings and murder, and if either chooses to pursue criminal investigations, there is a follow-on choice to be made about who in the chain-of-command ought to be charged. As I explained in the earlier article, everyone from the four-star admiral commanding the unified Combatant Command down to the pilot or drone operator who pushed the button to release the munition (as well as all the intermediary staff personnel who participated in planning and the logistics for each mission) is culpable for each murder as a principal, under an accomplice theory, or as part of a conspiracy. But that is, conservatively, hundreds or even thousands of named defendants. It is both unrealistic and an inefficient use of government resources to cast such a wide net.
Moreover, the government would be open to the reasonable criticism that attempting to prosecute every individual involved in these missions will risk ignoring the differing degrees of culpability across that population of defendants. Not everyone did the same thing or with the same influence, control, or discretion: there were bit parts, cameos, uncredited appearances, supporting actors, co-stars, writers, choreographers, editors, directors, and production designers in this miniseries of multiple episodes. It would be unfair to expose them all to the same types of punishment.
If the government were to take up the challenge of holding those involved – even those in uniform – criminally liable for the boat strikes, choosing the targets of investigation and prosecution must not be (or even appear to be) opaque, unexplained, arbitrary, or capricious. The government needs some manner of smaller net – or a net with an appropriate mesh – to filter out those who are best left to other forms of accountability (like administrative reprimand, or perhaps in some cases simply their own consciences and professional stigma) rather than the full force of prosecution under criminal law.
There are two viable contenders for that filtration system. Both are methods for deciding whose culpability deserves criminal sanction in the interests of justice reasonably, consistently, and fairly, and without susceptibility to claims of political retribution or retaliation.
Standard Prosecution Factors
The first contender for such a method is familiar to civilian and military prosecutors – the standards and regulations promulgated by a range of actors intending to guide prosecutorial discretion, some applicable across all prosecutorial contexts, and others tailored to the military in particular. First among these, the American Bar Association describes the “prosecution function” with several normative standards. Standard 31.2(b) (Functions and Duties of the Prosecutor) says:
The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.
That discretion is guided by Standard 3-4.4 (Discretion in Filing, Declining, Maintaining, and Dismissing Criminal Charges), which lists sixteen factors. Among them, the ABA identifies considerations like “the background and characteristics of the offender;” “the extent or absence of harm caused by the offense;” the “unwarranted disparate treatment of similarly situated persons;” and “the fair and efficient distribution of limited prosecutorial resources.” The standard warns: “the prosecutor should not file or maintain charges greater in number or degree than can reasonably be supported with evidence at trial and are necessary to fairly reflect the gravity of the offense or deter similar conduct.”
The National District Attorney Association’s (NDAA) “Prosecution Standard” 4-1.3 includes a longer, but very similar, list of pre-trial prosecutorial discretion factors, mirroring the ABA’s consideration of evidence sufficiency; suitability of rehabilitative and diversion programs; impact of a prosecution on the victim; availability of civil remedies; treatment of similarly-situated defendants; undue hardship on the accused; and the extent of the harm caused.
The Department of Justice’s standards for prosecutors, Rule 9-27.220 (Grounds for Commencing or Declining Prosecution), state that charges are appropriate only when the prosecutor:
believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.
Whether a prosecution serves a “substantial federal interest” is both critical to this disposition choice and extremely difficult to gauge without further guidance. Rule 9-27.230 provides that guidance with a list of considerations analogous to the ABA and the NDAA’s standards:
“In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including: . . . [t]he nature and seriousness of the offense; . . . [t]he deterrent effect of prosecution; . . . [t]he person’s culpability in connection with the offense; . . . [and] [t]he person’s history with respect to criminal activity.”
These served as models for the military’s own list of case disposition factors found in the Manual for Courts-Martial, a collection of executive orders that include the Rules for Courts-Martial, the Military Rules of Evidence, and authoritative explanations of each criminal offense (and its elements) promulgated by Congress in the Uniform Code of Military Justice (UCMJ). Appendix 2.1 of the Manual was added at the direction of Congress (see Pub. L. 114–32 (Dec. 23, 2016), 130 stat. 2907, sec. 5204, codified at 10 U.S.C. § 833). Its purpose is to “provide[] guidance regarding factors . . . with respect to the disposition of charges and specifications under the UCMJ, and to further promote the purposes of military law.” Besides deterring misconduct and promoting good order and discipline, one of those “purposes of military law” is “to facilitate appropriate accountability” (see the Manual’s Preamble and footnote 1 to App. 2.1, para. 1.1).
Like the ABA, NDAA, and DoJ standards and guidelines, the Secretary of Defense, in consultation with the Secretary of Homeland Security, have issued “non-binding disposition guidance.” That guidance articulates more than a dozen disposition considerations and factors for “how best to exercise” prosecutorial discretion in a manner that is “reasoned and structured.”
Predictably, these considerations also include four factors that are relevant only in a military context:
“[t]he effect of the alleged offense on the morale, health, safety, welfare, and good order and discipline of the command; . . . [t]he extent to which the conduct tends to bring discredit upon the armed forces; . . . [w]hether the alleged offense occurred during wartime, combat, or contingency operations; . . . and [t]he mission-related responsibilities of the command.”
If there is one common theme threading all such lists of prosecutorial discretion factors it is that justice demands individualized case-by-case determinations in light of the totality of the circumstances, not merely the nature of the offense and gravity of the harm caused.
However, a federal prosecutor, or a military judge advocate prosecutor, with the power to decide who among the chain-of-command to charge for the boat strike murders, should feel that these standards, factors, and considerations would still leave little more than mere intuition as to what “in the interests of justice” actually requires in these boat strike cases.
The Duty to Disobey “Clearly Illegal” Orders
Of course, the gravamen of a prosecution for the boat strikes is the purposeful, premeditated unlawful killing of human beings without lawful excuse or justification – murder – and reasonably interpreted as part of a “conspiracy” to commit such acts under the direction of the President, Secretary of Defense, and each commanding officer between those civilian principals and the actual servicemember pulling the trigger or pushing the button. My earlier article explained that “just following orders” is not a viable defense in such a case because the orders in question are patently unlawful. The affirmative duty to disobey such an order is not made explicit in the UCMJ, but it is clearly stated in the Department of Defense’s Law of War Manual (2023), which provides:
18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. 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.
What’s more, others have written in these pages that “[a]s the Manual for Courts-Martial explains, the general presumption that an order can be inferred to be lawful ‘does not apply to a patently illegal order, such as one that directs the commission of a crime.’” They went on to note “[a]n even more granular explanation of the duty to refuse unlawful orders is provided in the U.S. Navy/Marine Corps/Coast Guard Commanders Handbook on the Law of Naval Operations (§ 6.1.3.2),” which provides:
All naval personnel have a duty to comply with the law of armed conflict in good faith; prevent violations by others to the utmost of their ability; and refuse to comply with clearly illegal orders to commit violations of the law of armed conflict. Naval personnel have an affirmative obligation to promptly report violations [of] which they become aware. […] Commands and orders should not be understood as implicitly authorizing violations of the law of armed conflict where other interpretations are reasonably available.
These manuals and guidance should make clear that every individual from the top of the chain to the bottom could be held responsible for these murders at sea. The “in the interests of justice” standard described above could apply across those involved and could even be seen as an important reinforcement of the rule that “following orders” is no defense. But because those involved should not all be seen to have the same level of culpability morally, and because this would be casting the net too wide, another metric is needed.
There is another, less-well-known, set of considerations that could be employed to help prosecutors sift the criminally culpable from those servicemembers best left out of the criminal justice system under the circumstances.
“Exemplary Conduct” Expectations
In 1775, John Adams drafted for the Continental Congress the first set of regulations governing the nascent unified Navy. Article 1 of those regulations stated:
The Commanders of all ships and vessels belonging to the thirteen united colonies, are strictly required to shew [sic] in themselves a good example of honor and virtue to their officers and men, and to be very vigilant in inspecting the behaviour [sic] of all such as are under them, and to discountenance and suppress all dissolute, immoral and disorderly practices; and also, such as are contrary to the rules of discipline and obedience, and to correct those who are guilty of the same according to the usage of the sea.
In 1956, almost identical language was enacted into law regulating commanding officers and “others in authority” in each of the armed services, not just the Navy. Revised slightly in 1997, 10 U.S.C. § 7233, covering the Army, states:
All commanding officers and others in authority in the Army are required—
(1) to show in themselves a good example of virtue, honor, patriotism, and subordination;
(2) to be vigilant in inspecting the conduct of all persons who are placed under their command;
(3) to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Army, all persons who are guilty of them; and
(4) to take all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.
The Air Force (including the Space Force) and the Navy (including the Marine Corps) have substantively identical statutes.
These sections of Title 10 are outside the UCMJ and therefore do not contain a criminal prohibition backed by threat of punishment – at least not directly. By establishing what amount to professional obligations and duties commensurate with having command or other leadership authority, violating any of these four “requirements” could be used as a basis for charging “dereliction of duty” under Article 92(3) of the UCMJ.
The Manual for Courts-Martial (Part IV, para. 18.c.(3)(a)) explains that a “duty” can be “imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the Service” (emphasis added). Moreover, failing to meet these requirements could serve as the basis for a charge of “conduct unbecoming an officer” under Article 133, UCMJ, or conduct that is “prejudicial to good order and discipline” or “service-discrediting” under Article 134, UCMJ. The maximum punishment for the willful dereliction of duty “resulting in death or grievous bodily harm” is confinement for two years, forfeiture of pay, and a dishonorable discharge (a “dismissal” for officers) (MCM, Part IV, para. 18.d.(3)(d)).
In this light, the four requirements for exemplary conduct serve the additional tacit function of giving prosecutors a filter by which to screen for those servicemembers most culpable for these boat strikes: the commanders and “others in authority” under the circumstances. It is these leaders who, after receiving the order to strike these boats, do not disobey but rather engage in planning these strikes with their staffs, producing derivative orders that are sent down the chain-of-command ultimately issuing specific commands to the supervisor of the servicemember responsible for launching that missile – be it a pilot in an aircraft or a drone operator looking at a computer screen.
A servicemember – especially those in command who have received additional training in complying with federal law and the laws of war – cannot be acting virtuously, or honorably when they obey an order to kill alleged criminals without due process outside of a lawful armed conflict, even if the Department of Justice now claims that such acts are legal because the President is engaged in an armed conflict with cartels (as a matter of international law, that is wrong; and the DoJ refuses to publish even a redacted version of the OLC opinion on the boat strikes).
That failure of backbone is a sad signal that commanders are disowning responsibility and avoiding accountability for the illegality of these strikes. Consider what the Senate Committee on the Armed Forces wrote in its 1997 report (section 554) preceding an update to Exemplary Conduct statute:
The committee is disappointed to note that, in the past several years, some officers have shown reluctance to accept responsibility and accountability for their actions and the actions of their subordinates. This provision will . . . establish a very clear standard by which Congress and the nation can measure officers of our military services. The committee holds military officers to a higher standard than other members of society. . . [so] the [n]ation deserves complete integrity, moral courage, and the highest moral and ethical conduct.
As a measuring stick purposely designed for gauging the professional integrity, moral courage, and ethical conduct of such leaders, these requirements for exemplary conduct provide a transparent, repeatable, non-arbitrary, non-capricious consideration for choosing which servicemembers should face federal prosecution for the boat strike murders, if any. Besides serving as a filter, the existence of these statutory requirements justifies limiting the scope of criminal prosecution to just those servicemembers spoken to by Congress in this law. Given that these requirements have been imposed by a statute and long pre-date these controversies, they are less likely to be criticized as enabling a campaign of political retaliation by a future Democratic administration against anyone executing Trump’s commands.
Prosecutorial discretion over which military members ought to be charged for crimes related to Operation Southern Spear should start with these “requirements for exemplary conduct.” Who, specifically, is in that roster of commanders and “others in authority” involved in this campaign is uncertain beyond the Commander of U.S. Southern Command and any commander directly subordinate to him traced all the way down to the commanding officer of the person proximately responsible for firing the kill shots. To either cull that roster or to include hosts of subordinate staff officers is the function of the traditional discretionary factors listed in Appendix 2.1 of the Manual for Courts-Martial. The novelty of this approach is two-fold: (1) it includes consideration of Congress’s prescribed standards of conduct; and (2) places that consideration before conventional factors like evidence availability, potential punishments, the accused’s role in the misconduct and degree of culpability, and “mission-related responsibilities.”
Conclusion
If accountability for the unlawful boat strikes is to ever happen, and if that accountability involves criminal prosecution, the government will face the awkward but critical question of “who exactly do we charge? Everyone? Only the most senior commander who clearly knew better? Only the drone operator or pilot who fired the missile? What about the hordes of planners in-between who did the necessary staff work to make the operation executable?”
Traditional disposition considerations (like those from the DoJ and in the Manual for Courts-Martial) remain relevant, but their very nature demands a case-by-case discretionary assessment. There is a strategic question of whether certain servicemembers – by virtue of their involvement or rank or responsibility – should be the only criminal defendants.
To make that judgment, the traditional considerations are necessary but insufficient. The government would benefit from a transparent, non-arbitrary, and non-capricious filter that avoids the hint of political retaliation. The “requirement for exemplary conduct” statute provides that nonpartisan filter and justification. When the planning and execution of these unlawful boat strikes is viewed against the framing of these “exemplary conduct” requirements alongside the traditional prosecutorial discretion factors noted above, these additional duties ought to help prosecutors decide which, if any, servicemembers deserve the criminal consequences of their choices to obey unlawful orders.
The exemplary conduct requirements imposed in these statutes are a direct message from the military’s other civilian principal – Congress – about the high standards expected of those in uniform privileged to have responsibility for the actions of others in uniform.
