Our Military Needs Congress to Do Its Job

54 Days to the Midterms

Given that Democrats will likely win control of at least one house of Congress, we need to begin serious consideration of the essential role of congressional oversight. Congress’s powers of the purse and of oversight will be essential to halt this regime’s chaos and begin reversing the constitutional damage and policy failures we have endured. There is no more critical oversight realm than national security, where Donald Trump and his minions have cost American lives and billions of dollars and severely damaged our security and international standing.

Starting with the Hippocratic Oath (Do No Harm — or, in this case, do no more harm), Congress must cut all funding for the illegal war in Iran (and its deployment of troops and material) and for extrajudicial killings on the high seas, which have both been moral obscenities and colossal policy failures.

Beyond that, national security guru and former State Department official Brian Finucane tells me, “If the executive branch has usurped Congress’s authority over the use of force or breached the rules enacted by Congress, the legislative branch needs to expose those violations and begin laying the groundwork for accountability.”

Regarding extrajudicial killings on the high seas, Finucane points out, “accountability is necessary to safeguard against the US military engaging in lawless premeditated killing in the future.” And it demands a transparent review of a counterproductive policy.

Killing drug mules and blowing up boats is not solving the drug trafficking problem. “[W]hile trafficking routes briefly shifted and cocaine prices temporarily fluctuated, the availability, purity, and price of cocaine in the United States have largely returned to pre-operation levels,” Just Security reports. That means this illegal escapade “achieved little lasting strategic effect despite its extraordinary use of military force.” To make matters worse, the extrajudicial killings also prompted allies such as the UK, Canada, and the Netherlands to curb “intelligence sharing with the United States or put caveats on the use of the intelligence they provide because of these unlawful strikes.”

Both the extrajudicial killings and the Iran war raise disturbing questions about violations of the law of war and U.S. personnel implication in war crimes. In contrast with Presidents George W. Bush, Barack Obama, and Joe Biden’s administrations — which all conducted after-action reports on civilian casualties in a timely fashion and complied with obligations to testify before Congress — the Trump crew has stiff-armed Congress on queries about everything from the so-called “double tap” strike that murdered non-military personnel floating in the high seas to the strike that killed over 150 civilians, most children, at a girl’s school in Minab, Iran.

Independent investigative reporting established that, for years, this building was walled off from any military installation and used purely as a civilian school. But this may be far more than a horrible, negligent error in failing to update targeting, or even abide by warnings within the intelligence system.

This tragedy appears to be the almost inevitable result of the Trump regime’s decision to disregard protection of civilians, a key principle in the law of war. Earlier this year, ProPublica reported that a carefully designed Civilian Protection Center of Excellence “was dissolved as Defense Secretary Pete Hegseth made ‘lethality’ a top priority,” precipitating the Minab incident, in which the U.S. killed the most civilians in a single incident in decades. “Dismantling the fledgling harm-reduction effort, defense analysts say, is among several ways the Trump administration has reorganized national security around two principles: more aggression, less accountability.”

Massive civilian deaths followed when the Trump Pentagon “lowered the authorization level for lethal force, broadened target categories, inflated threat assessments and fired inspectors general,” according to the ProPublica report. One Air Force official who had been forced out told ProPublica:

“We’re departing from the rules and norms that we’ve tried to establish as a global community since at least World War II. There’s zero accountability.”

However, accountability is still possible, and remains a moral and operational imperative. Chest-thumping Trump officials who confuse national security excellence with mindless, counterproductive violence must not be permitted to put lower-level military personnel in precarious legal and moral terrain. As Margaret Donovan, who reviewed hundreds of combat strikes in Syria and Iraq as a lawyer in the United States Army JAG Corps, tells me, “It is up to Congress to ensure that soldiers are never put in that position in the first place; they are effectively outsourcing their oversight responsibilities to junior soldiers.”

Congressional oversight must proceed. If the Trump regime snubs congressional subpoenas, Finucane advises, “Congress should be prepared to play hardball, including by vowing career consequences for any military officers who refuse to comply with subpoenas and by imposing funding restrictions for noncompliance.” Fortunately, all those officials who Hegseth has fired will have much greater latitude to testify. Dr. Kori Schake, director of Foreign and Defense Policy Studies at the American Enterprise Institute, advises that Congress can also refuse Pentagon funding requests and confirmations until it gets satisfactory answers “about the legality of issued orders, the tradeoffs in readiness and munitions usage, and other crucial policy choices.”

Tess Bridgeman, co-Editor-in-Chief of Just Security, Senior Fellow and visiting scholar at NYU Law School tells me, “Various other forms of accountability — including administrative separation (involuntary discharge), removal from a command or duty, and preventing promotions, for example, are potential forms of accountability that could be particularly useful where the unlawful conduct was relatively widespread and was officially condoned.” She adds, “Congress should also use its investigative authority to create commissions (or use its existing committee structure) that can get to the bottom of what happened and why; lower-level officials could be immunized from certain penalties for coming forward and speaking truthfully. This could create a powerful public record and put the focus on those most responsible and the institutions in which they served — rather than on the lower-ranking personnel involved (who could still face various forms of admonition, reprimand, suspension of privileges, or mandatory re-training, depending on their role and level of responsibility).”

In addition to policy failures and war crimes, enumerable aspects of the Pentagon require exacting oversight (e.g., use of an insecure Signal channel during military operations, munitions shortages, discriminatory promotions, gross violations of the First Amendment). At stake is nothing less than the restoration and preservation of military excellence, our standing as a defender of international law, and our ability to enlist democratic allies’ support.

“National security, and particularly matters of war and peace, cannot be exempted from our democratic processes,” Katherine Yon Ebright, senior counsel at the Brennan Center, tells me. “The human costs are too high, and the backsliding is too easy. After decades of Congress ceding ground on national security decision-making and oversight, we now have a president who feels empowered to conflate dissent with crime and also crime with war.” We are now seeing where that leads.

Republicans, in countenancing an illegal war, rubber-stamping unfit nominees, and refusing to conduct essential oversight, are fully culpable in the damage to our national security and constitutional order. Voters must understand that without a change in congressional control, we will not have a majority party willing to fulfill its obligations to protect the Constitution from enemies, foreign and domestic.

“Discipline and honor are central to the proper functioning of the military. The current executive branch leadership has blatantly violated the law and encouraged others to do so,” Donovan tells me. Moreover, “the constant chaos in the executive branch—summary firings, rotating crew of principal officers—means that soldiers don’t know if what they are being told is legal today will be illegal tomorrow, and vice versa,” she says. That is why it is so essential to have real congressional oversight — and a congressional majority that’s up to the task.