So can you give us a quick breakdown, a quick tutorial about how the First Amendment free speech rights differ when it comes to active duty military members?

Sure.

So the first default rule is in service active duty members, officer enlisted, no matter what service they're in, Marines, Navy, Air Force, Army, whatever it might be, have your First Amendment rights.

That's...

The Supreme Court has said as much.

You have a First Amendment protection.

You don't give that up simply because you volunteered to put the uniform on for the country.

[upbeat music] So Dan, who is the decision maker supposed to be under these circumstances? Who is the one who will say yay or nay to a criminal prosecution, a court martial? We'll leave the administrative remedies aside for the moment.

So can you give us a quick breakdown, a quick tutorial about how the First Amendment free speech rights differ when it comes to active duty military members?

Sure.

So the first default rule is in service, active duty members, officer, enlisted, no matter what service they're in, Marines, Navy, Air Force, Army, whatever it might be, have your First Amendment rights.

That's...

The Supreme Court has said as much.

You have a First Amendment protection.

You don't give that up simply because you volunteered to put the uniform on for the country.

[upbeat music]So Dan, who is the decision-maker supposed to be under these circumstances? Who is the one who will say yay or nay to a criminal prosecution, a court-martial? We'll leave the administrative remedies aside for the moment.

-of a president's authority to engage in these kind of attacks?

Great question.

Uh, that nature, scope, and duration test has, has not been decided by the court.

No court has taken on that, that question because they, they view it as a political question that the Congress and the president have to hash out themselves.

They, the courts would say, "We're not qualified to addre-address that." So they would push back.

But what we do have is Supreme Court precedent from the Civil War, which should give us some, you know, telling about how, how relevant this is, uh, from, from the eighteen sixties, in which President Lincoln used an extraordinary amount of unilateral power without Congress go-- without going to Congress first to use the military.

And eventually, Congress ratified that, but in the interim, the administration was sued by private actors saying he doesn't have the authority to do this.

You know, this, this is the prosecutor in me kind of trying to wind my way through what the Republicans have been putting out there.

Hm.

Uh, he misuses the word blockade, frankly.

Blockade...

If he were to blockade, let's say, the ports of Venezuela or Cuba or any other country, blockade like that actually is an act of war under international law.

What he's apparently doing with these, uh, embargoed ships, uh, is simply enforcing, um, existing law.

Um, it, it, it appears that he's enforcing sanctions and saying we're, we're gonna blockade your, your transit of these routes isn't really saying anything other than what he was doing before when we stopped an oil tanker and boarded it.

I'm not sure there's any real difference between the two.

Could that be used as a legal justification for further attacks, including on land?

In your view, where is that heading?

Nowhere good.

And it was headed nowhere good from the moment the administration announced that they're investigating Senator Kelly for a non-crime.

What he said, as, as you've mentioned before and other people have mentioned many d- many times because it's absolutely true, is that telling soldiers, service members to obey lawful orders and to not follow unlawful orders doesn't undermine good order and discipline.

It is the fountain of good order and discipline to follow lawful orders and to disobey unlawful orders.

If anything, he was reinforcing good order and discipline within the force, not undermining it.

So, he wasn't committing a crime.

I mean, Dan, what is the way that the American people will understand the legal authority by which shipwreck survivors of an initial strike were struck a second time and killed?

judicial system say to you?

Uh, well, uh, this dancing around, uh, uh, and trying to concoct after the fact different, um, legal frameworks for describing these individuals and for, um, coming up with different, um, different courses of action, uh, to deal with them, repatriating them or killing them, uh, suggests to me two things.

One, um, it's either pure incompetence because they hadn't planned for the fact that there might be survivors of these missile strikes.

What do we do with survivors clinging to the hull of a capsized ship? Any competent military planner would have thought through that and had a, a plan for dealing with that other than simply firing another missile at them, 'cause that would have been blatantly unlawful and was blatantly unlawful....

the second thing it tells me, uh, and as a former prosecutor, I- I would call this consciousness of guilt.

They know that this would not withstand scrutiny, uh, because it- it simply cannot.

I- I- there are few cases that I've ever dealt with or ever seen where the illegality is so clear on its face and to- to shield the videos from the public, from most members of Congress, uh, to say that, you know, for the congressman to say earlier, "I've seen enough, I'm- I'm satisfied." Well, i- i- if you're that confident, then show the tapes to everybody.

Um, it's- this is an intra-Trump cabinet conversation that's being covered by The New York Times today, and I- and I wonder how if it's so stark, if the lights are flashing red, how we arrived at the place where Admiral Bradley takes 40 minutes, assesses what has happened after the first strike, and launches a second strike, Dan?

"Can you discuss within what law structures these events are/should be evaluated? What exactly are the international laws that apply to these boat strikes, and how can we determine if they've been violated?" Dan?

Dan?Sure.

So, uh, Frank alluded to it earlier that this is a law enforcement legal framework, a law enforcement paradigm, not a law of war paradigm and under all modern domestic criminal law, including ours, um, uh, a, a killing of a criminal suspect without due process is unlawful.

It's called an extrajudicial killing o- or a murder.

Um, and these are unlawful things to do as a government against any individual, so without due process, just attacking summarily, um, is, you know, c- clearly a, a crime in and of itself.

Um, if these were drug, uh, drug mules inside the territory of the US, you know, on the Streets of El Paso and a drone struck them with no due process, no arrest, no investigation, no prosecution, no conviction, no adjudicated punishment, uh, I suspect m- most people would be up in arms, figuratively of course, um, about how illegal that is and how terrible that is regardless if that person, that drug mule was a citizen or not.

Uh, this is no different just because it happens on the high seas.

When you were in that role, did you see your position as one that was at all political?

What is it actually going to require to understand what is true here?

That's a great question.

I concur 100 percent with the general who said we need the facts.

You have to have an investigation into something like this.

For me, this is this generation's version of Abu Ghraib.

I was a young second lieutenant platoon leader in Iraq when that happened.

And the shockwave that that sent through our own force, The idea that we would do that was it undermined morale, undermined cohesion, it undermined our sense of legitimacy.

And so I do think that the investigation is key for this very reason, because if left up to their own devices, the president and the secretary of defense don't actually want to get to the bottom of this, as evidenced by their statements today.