In the foreseeable future, the Trump administration will come to an end. At that time, a new president and a new secretary of defense will have to confront the question of what to do about the many abuses of power and almost certain violations of both domestic and international law and of regulations committed within the Department of Defense during Trump’s second term. While in some ways this is still a distant prospect, we will soon be immersed in the 2028 presidential election cycle, and candidates will be challenged to go on the record about how they will deal with the issue of accountability if elected. For many, the desire to look forward as opposed to backward, to “just move on,” will be very tempting and perhaps politically expedient. I believe that this would be a mistake.
We cannot let the obvious violations and abuses of the second Trump administration, such as the extra-judicial killings of alleged drug runners, fade in the rear-view mirror. If we do so, we will be inviting them to be repeated and we will not have learned how to prevent them from recurring. We can also not let the many injustices inflicted on our men and women in uniform, such as firings without cause and unjustified removal from promotion lists or from the military itself, go unaddressed. There are also strong indications of widespread corruption that will have to be remedied. Our institutions, including the Department of Defense, have been accepting the unacceptable, and if we let that stand without addressing it, we risk the unacceptable becoming a new normal.
Any new leadership team must also be especially careful not to follow one term of extreme politicization with another in the opposite direction. There is a paramount need to restore the traditional apolitical culture that has always characterized the U.S. military. Throughout my career, I have served in several administrations from both parties. Until this administration, the transitions have always been seamless, and the policies of the new administration have always been implemented professionally. Nothing would be more damaging to our military than continued politicization, or even the perception that this is the case, either in the same or in the opposite direction.
By the time a new administration takes office in 2029, we should know a lot more about the conduct of the current administration. Assuming that at least one chamber of the Congress comes under Democratic control after the midterms, we can be certain that through subpoenas, hearings, and possibly even impeachment proceedings, we will learn much more about the misconduct and unlawful actions that have already occurred over the last two years. And while no one can predict exactly what the next two years will bring, the odds are good that the lack of respect by this administration for both the rule of law and for the apolitical culture of our military will continue for two more years. This is likely even if Congress begins to address these problems during that time.
How, then, should a new leadership team plan to proceed upon taking office? Here are nine steps – based on the assumption that whoever takes office will appreciate the seriousness of the damage that has been done, the risks of recurrence, and the need for some measure of accountability, all without swinging the politicization pendulum to an opposite extreme.
1. Create a mechanism for bipartisan and preferably nonpartisan oversight
Ideally, accountability for the actions of our military during this administration should be achieved under bipartisan or nonpartisan oversight. One mechanism to achieve this might be a bipartisan joint subcommittee of the armed services committees of the Congress. Another might be a specially appointed bipartisan or even nonpartisan commission. In any event, those executing oversight must be highly respected, qualified individuals. Prior military service would be a highly desirable prerequisite to participation, as would legal experience in the Department of Defense context.
There are a range of options for the scope and authority of an independent commission. My preference would be to use this mechanism to broadly direct and oversee corrective actions taken within established organizations, but depending on the situation after two more years of this administration, a much more extensive remit with authorities over both standards and individual cases might be necessary.
2. Get the facts first and make them public
The first order of business will be to determine how any potentially unlawful or unethical decisions, such as authorization for strikes on alleged drug runners, including survivors in the water, were made and justified. Documents such as authorizations from the president or delegations of authority, execute orders, rules of engagement, and formal legal opinions will be critical to such a fact-finding effort, as will be statements from those involved and any witnesses to events. This effort can start under the next Congress. In any event, planning for this effort should occur before the new administration takes office so that it can begin on day one. An initial review by a new presidential administration should take Congress’ investigatory findings seriously, and in any event must be completed within six months. (For the vessel strikes in particular, there is already a good deal of public information, with the strikes themselves having been publicized by the Department.)
There may be some misconduct that cannot be fully disclosed for classification reasons or to protect sensitive information for personnel adversely affected, but whenever possible, transparency through public disclosure of findings should be prioritized to ensure that there is a common factual understanding of whatever has occurred before corrective action is taken.
3. For military officers and career civilians, begin with a presumption of apolitical professionalism
There should be no widespread removals for assumed political loyalty or actions that would create that impression. While there may be some cases where immediate changes are justified for cause, there should be a starting presumption that senior military and career civilian leaders are professional, ethical, and apolitical in executing their Department of Defense roles.
4. Emphasize administrative over criminal remedies
While again there may be exceptions in some cases, especially for corruption and self-dealing, for the most part any remedies for lack of adherence to ethical, moral and even legal requirements should be administrative as opposed to criminal. The current administration has consciously created an environment in which legal authorities are willing to justify actions that are far outside the mainstream of established legal interpretation of the law. This includes executing alleged drug traffickers in international waters and even killing shipwrecked survivors in distress. This has intentionally placed senior military leaders, in fact leaders at all levels, in a very difficult position and made either refusal or opposition to orders much more challenging.
There is also a distinct possibility that the current administration may issue pardons that would make some prosecutions untenable. Additionally, there is an open question about whether the immunity granted to the president by the Supreme Court extends to those carrying out his criminal orders. For all these reasons, while criminal liability will be merited for gross and knowing violations of law, beyond such cases it will have to be carefully justified.
5. Provide exemplary due process
Basic due process before any adverse action is taken is a fundamental right, but in this case even more is advisable. Criminal due process is well established. For administrative adverse actions, any individual accused of failures of professional judgement or violations of laws and regulations should have an opportunity to understand what he or she has been accused of, an opportunity to respond to those accusations, and a chance to appeal any adverse action. The appropriate chain of command and long-established military department, and in some cases Justice Department, processes already provide a good starting point for proceedings to determine the need for (and acceptable bounds of) corrective action, but these should be considered the minimum to be made available. The fairness and the perceived fairness of any proceedings are critical to the success of this effort, which will be under intense scrutiny and certain to be accused of being politically motivated. Such accusations should not deter accountability, but leaders must be scrupulous and diligent at every step.
6. Start at the top
The nature of the conduct and the fact that it was ordered or condoned at the highest levels of the administration makes it necessary to first closely consider the actions of the senior military and civilian professionals at the interface to political leadership. These people are expected to set the standards for others to follow. One of my favorite leadership maxims is that standards are not what we say, they are what we accept. The orders or guidance that these people have accepted are the de facto standard. This is true at every level, but it becomes more important as one rises to higher levels of command and responsibility.
The fact that it is asking a lot of senior professionals to follow our nation’s high standards when they are at odds with the desires of political leadership is simply an acknowledgement that these are positions that require extraordinary leaders of character. Senior positions are not just rewards for a successful career, but positions of great responsibility where adherence to the oath of office is a heavy but very real and important burden.
7. Assess accountability fairly, but quickly
There is value in putting all of this behind us as quickly as possible, but not at the expense of fairness or accountability. Closure will have value for any individuals involved and for the institution as a whole. A reasonable time to complete the tasks outlined here is within one year after the new administration takes office. Many of these items can proceed in parallel and as much of the work as possible should be delegated to the military departments. Some coordination or guidance on processes and review standards to ensure consistency across the Department of Defense would be beneficial, but it has to be accomplished without the appearance or the fact of undue command influence over any individual cases.
8. Address individual injustices on a case-by-case basis
For individuals who may have been the victims of injustice, such as those fired preemptively, forced to retire, or removed from a promotion list, all without cause, there should be an opportunity to request and be considered for corrective action. This also applies to anyone who served honorably but was forced to separate for being transgender. Corrective action could include, for example; reinstatement, retirement grade adjustment, or record correction as appropriate and as desired by the individual. It might be appropriate to provide monetary compensation in some cases.
9. Reestablish and clarify standards where needed
A fundamental question that should be addressed is the degree to which what happened during this administration was a failure of people, a failure of standards, or some combination. Any corrective action for individuals should be based on the standards in place at the time of the events when they occurred. But we should also carefully consider whether those standards should be modified or not. Should prohibitions against unethical, immoral, or illegal conduct be strengthened as a result of our experience during this administration? Should our training and guidance be adjusted? Are legislative changes or guidance needed? All of these questions can be addressed under the nonpartisan oversight mechanism recommended in step one above.
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We cannot predict what will happen over the coming months and years. A change in the Congress as a result of the midterms could mean a great deal can be done to investigate and expose this administration’s actions. This would have the benefit of revealing the extent of any problems and making it clear to the American people that more concerted corrective action is needed.
Unfortunately, I see little hope of significant positive change within senior levels of the executive branch during the balance of this administration, and things could get much worse in the very near future. Nevertheless, it is not too early to begin thinking and planning for a time when there will be an opportunity to change things for the better. My intent here has been to lay out a starting point for a set of steps that could be used to guide us back to the high degree of professionalism that has characterized our military throughout my career. That process cannot begin soon enough.
