SCOTUS Greenlights Trump, Gaslights America

This episode is brought to you by Ground News. Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground news is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources break free from algorithms and think critically about where you're getting your news. Recently, I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is... center or nonpartisan. But if you click right, you can see right-leaning coverage that claims, quote, Keir Starmer offered Britain nothing. And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing Street meat grinder. The Nobel Peace Center called Ground News, quote, an excellent way to stay informed, avoid echo chambers, and expand your worldview. Here's how to get started. Go to groundnews.com slash AC to get 40% off their unlimited access vantage subscription. That's groundnews.com slash AC and you'll get 40% off the vantage subscription, whether you subscribe yourself or send it as a gift. Make sure to use our link so that they know that we sent you. That's groundnews.com slash AC.

This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today. I'm Dahlia Lithwick. This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm going to go ahead and confess right off the bat that weeks like this past one, President Donald J. Trump performing naked racism on camera, SCOTUS deciding that the Texas legislature's racial gerrymander is just cool, cool, cool, an inspector general finding that Pete Hegseth's signal gate messages endangered U.S. troops, more ice roundups. It all feels very destabilizing. It all feels very fact-free. Except we know the facts. Donald Trump is in fact a racist. Texas did in fact enact a racial gerrymander. Pete Hegseth gleefully endangers the troops. And ICE is grabbing innocent people and even U.S. citizens off of the streets. So the question is which institutions plan to stand up to all of that and which will capitulate and buckle? Later on in the show, we're going to turn to Pete Hegseth's meme-more-turned-real war of lawless boat strikes and the split-screen explanations about the men killed in a double-tap strike because they were either, A, flipping a bombed-out hull of a boat in order to get back into the narco-terrorism fight, or B, they were shipwrecked man being murdered by the U.S. military. Now, we don't. purport to be experts on U.S. military law on this show, but we have been documenting since at least last February the ways in which this administration has blurred the lines between domestic policing, unchecked powers accumulated as part of the war on terror, emergency authority in the absence of any emergency, and the unlawful use of military force. A few weeks back, we dedicated a whole show to troops and illegal orders. We've been documenting all of this precisely because these actions are a cornerstone of authoritarian takeover and because it's such a profound and dangerous abuse of the military and members of the armed services. Former career U.S. Naval Intelligence Officer Malcolm Nance will be joining me to shed light. on what all this looks like from within the armed forces and what it means when there is no reliable arbiter of truth or law for the troops.

But first, I want to welcome Slate Senior Writer and my Amicus co-host, Mark Joseph Stern, because we've had a busy past few days at the Supreme Court and a busy couple of weeks to come and some big news for the midterms and a significant development in Trump's quest to extra constitutionally restrict. birthright citizenship. So maybe we start there, Mark? Yes, I think that's where we have to begin with the Supreme Court dropping yet another bomb on us on a Friday afternoon. The court has granted cert in a case called Trump v. Barbara. This is a clean vehicle for the justices to decide whether the Constitution does, in fact, grant birthright citizenship to virtually all people born here. As listeners... Remember, I'm sure, Trump issued an executive order on his first day back in office purporting to strip birthright citizenship moving forward from the children of immigrants who are here on temporary visas as well as undocumented immigrants. that, of course, violates the plain text of the 14th Amendment, a federal statute, and more than 120 years of Supreme Court precedent. But he did it anyway. And we thought we were going to get a big decision on this last term. But instead, the Supreme Court ended up taking away the nationwide injunctions that had blocked the policy. This time around, it's a pretty clean shot at the fundamental question on the merits. Can Trump do this? The Justice Department is not trying to fight any kind of procedural... or equitable issues here. This was a class action. The administration accepts that. The lower courts ruled against the government. The administration is saying, just give us a win and tell us that we can implement this policy. So this is the fight. This is the big one that we've been waiting for after the fake out last year. And I think by the end of June, the Supreme Court will tell us whether or not we still have a 14th Amendment. To my eyes, Mark, this just serves as a really... useful marker of where we stand in time. Because a year ago, going for the jugular on birthright citizenship was like snod out your nose punchline ludicrous argument that A year and change later, we are about to be told by the U.S. Supreme Court that there are sober, meritorious arguments on both sides. And so as a way of just noting how quickly things go from off the wall to on the wall, this is a good reminder that that which was unthinkably bonkers.

a year and a half ago is now going to the Supreme Court. Yeah, I couldn't put it better than that. I guess I will just sort of shame the law professors and Republican lawyers who have spent the last year racing to try to put together some kind of theory to explain why Trump should be able to ban birthright citizenship. They have utterly failed. Their arguments are frivolous. and meritless, but it just shows you how law works now, right? There's this entire apparatus, this infrastructure on the right, that is devoted to concocting bogus originalist arguments. to align the Supreme Court with the Republican Party platform. And it is nuts that we are here talking about the Supreme Court deciding an issue that was resolved after the Civil War, that was resolved again at the end of the 19th century by an otherwise pretty racist Supreme Court, which said even we have to acknowledge that the children of immigrants get birthright citizenship. And here we are in 2025, and it still is a live issue. So that fact makes this whole... episode something of a win for Trump because it is disgusting that we even have to have this conversation. I do want to sound a note of optimism, though. Every lower court ruled against the government in this case and a bunch of different lawsuits had been filed. There were no wins for the Trump administration. The judges did admirable work laying out the historical record saying this is a stinker. This is a loser. I would still put money on the Supreme Court siding with... those decisions. I'm not as confident as I was a year ago, but I still think that the force of the arguments against Trump's policy are, it's just so... overwhelmingly strong that even the Supreme Court isn't going to want to try to fight it. And perhaps this is an opportunity for the justices to try to say, look, we're neutral. We aren't in the tank for Trump. We ruled against him here. And they can use it as cover while they rule for him in almost every other case. So maybe that's not as optimistic as I thought it would be. But I do still think that as horrible as it is, we're having this discussion. At the end of the day, birthright citizenship will be affirmed. On Thursday evening, there was another earthquake on the Supreme Court's shadow docket. This one blessing Texas's latest effort at racial gerrymanders and supercharging the redistricting arms race to come. It was a gobsmacking decision that was also not really a surprise. The Supreme Court revived a map produced by Texas Republicans to give five more House seats to Donald Trump and the GOP. And in doing so, they lifted a district court's order that would have blocked the new map.

This feels to me like a signal that the Robert Six are just all in on the gerrymandering arms race, especially if it's Republicans who are going to benefit. And to see why you don't really need to read past Samuel Alito's concurrence, which accuses the plaintiffs of using false, quote, claims of racial gerrymandering for partisan ends, end quote, to favor Democrats. Unless I'm wrong, Mark, in his telling, it's the black and Hispanic voters who are the real partisans here and not the Texas Republicans. So just to clear this all up, is this projection and gaslighting from Samuel Alito again? Yes, shockingly. Although, Dahlia, I'm actually kind of grateful that Samuel Alito wrote this horrid concurrence because it really does. lay out the totally upside down and frankly somewhat racist reasoning that I think is driving this decision. The unsigned majority opinion has exactly two paragraphs of reasoning, which do not stand up to scrutiny as Justice Elena Kagan proved in dissent. And I will get to that in a minute. But I think that Samuel Alito's concurrence, which was joined by Clarence Thomas and Neil Gorsuch, cuts to the heart of what's going on here. And it is just so incredibly cynical and bleak. So let's recall what actually happened here, right? Donald Trump pressured Texas to redraw its congressional maps so that Republicans would have a better chance of keeping the House of Representatives in 2026. Both the Republican governor. and the Texas legislature initially declined this call to redistrict. So Trump's Justice Department went to Plan B and sent a letter threatening to sue Texas on the entirely bogus grounds that the map it drew after the 2020 census, the map in place until quite recently, gives black and brown voters too much political power. by putting them in several districts together. In Texas responded by begrudgingly, it seems, drawing a new map that dismantled those minority districts and redistributed their voters on the basis of race in a way that gave Republicans five additional seats. The district court's opinion, which, to be clear, was written by a Trump-appointed judge, Jeffrey Brown, found... overwhelming evidence of this racial engineering, both direct and circumstantial. So the district court held a nine-day trial with 23 witnesses and 3,000 pages of evidence, then produced a 160-page opinion, exhaustively explaining why Texas had discriminated against voters on the basis of race in violation of the 14th and 15th amendments. Then in two paragraphs. The Supreme Court's conservative supermajority dismissed all of that work as a mistake and essentially held that the district court should have just blinded itself to the obvious racism at work here. And really you have to look to the Samuel Alito concurrence to see exactly why. Because Samuel Alito says that he thinks the plaintiffs are wielding.

false claims of racism to help Democrats and that they don't really care about the allegedly unconstitutional racial discrimination at play here. So, Dahlia, note the neat trick. The mostly white politicians who actually drew this gerrymander get the presumption of good faith in Samuel Alito's telling and with the majority, right? They are assumed to have simply been trying to create an advantage for Republicans. They didn't consider race. They weren't racist. How dare anyone suggest otherwise? But the racial minorities. who challenged the gerrymander as a violation of their constitutional rights, they get treated like bad faith partisans who are presumptively lying. That is the only framework through which the Supreme Court's decision and the Samuel Alito concurrence make any lick of sense. Yeah, and it raises this question, Mark, that I've been thinking about a lot, which is the more it seems as though Trump and Trumpism are in peril and MAGA's in peril and if polling and midterm elections and races that we're seeing, including in Tennessee this week, signal anything, it's that this stuff is in trouble? And therefore the midterms become the harbinger of what is to come. And it really feels it's hard to see this any other way. As though there are, I don't understand another way to think about it, six MAGA justices on the John Roberts Court who are just, as you say, without acknowledging the record, without thinking about the test, without doing much other than. you know, shrugging their shoulders and saying, yeah, we think Texas is going to prevail and like scolding the court below. It feels like this is just the court full on mask off, pants down, throwing in for Trump, throwing in for Greg Abbott. I don't. know another plausible way to read this. I think that's the only plausible way to read it. And another signal that your reading is correct, I think, and that the majority is clearly rewarding the GOP's hardball tactics is the way that the court invoked the Purcell principle here. So. Listeners will remember the Purcell principle says that federal courts generally shouldn't change the election, quote, on the eve of an election. And the majority quotes that as though we are actually on the eve of an election. But of course, it is December 2025. The midterms are still nearly a year away.

And the only reason that the district court ruled when it did last month is because Texas waited until the last possible moment to enact this map. So it's not as if the plaintiffs dilly-dallied in bringing their challenge. And in fact, as Elena Kagan pointed out, they actually asked for an injunction before the governor even approved the new map. So they moved as fast as they possibly could, as did the district court, which I think did pretty heroic work producing this complex opinion. And you will not often hear me describe a Trump. Judge is doing heroic work, but that is what happened here. And yet, the Supreme Court majority still faulted Judge Brown for acting too late and, quote, causing much confusion and upsetting the delicate federal state balance in elections. So I think that is absurd. on its face, and it marks this radical expansion of the Purcell principle, which now apparently bars courts from protecting voting rights a year before an election, not just a week or a month or six months, but a full year. And in theory, That means that a state could enact a literal Jim Crow law, like a literacy test or a grandfather clause or an all-white primary. And courts couldn't block it because doing so could cause voter confusion and upset the federal state balance in elections. And in practice, what it means right now in our neo Jim Crow era is that red states like Indiana and Florida will get a free pass to gerrymander racial minorities into oblivion, even if their maps are blatantly illegal. and unquestionably racist. courts will be powerless to stop them. And that gives a huge advantage to Republicans because in many states like Florida, their one neat trick for gaining a partisan advantage is diluting representation for racial minorities to create more safe GOP districts. And so they can now go full steam ahead, changing the rules, rigging the maps, hampering democracy without worrying about any pesky litigation that will cause problems for them. And that is the sign. of a party that is desperate to cling on to power that it is quickly losing because it is losing popular support. Let's pause now to hear from some of our sponsors. How do you keep up with AI? The competition is only moving faster. Fortunately, there's NetSuite Next. NetSuite is the AI-powered business management suite that securely connects all of your data. It's a unified suite that brings your financials, inventory, commerce, HR, and CRM into a single source of truth, and it's trusted by over 43,000 customers. NetSuite Next is the next huge leap in how business gets done, because AI is built into everything you do.

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NPR understands your curiosity is boundless, but your time isn't. That's why they make up first, the three biggest news stories of the day, with the reporting and analysis to understand them in under 15 minutes. Up First's distillation of President Trump's claims of election fraud in California was a super useful preview of what we can expect in the midterms. There's no shortage of news right now. Up First doesn't just give you the headlines. It gives you the context. Recent episodes covered how American citizens are getting caught in ISIS's growing surveillance web, what the Iran war means for the U.S. economy, and why Attorney General Pam Bondi's exit is bigger than it looks. Up First does something most daily news shows don't. It asks better questions to get better answers. Not just what happened, but how it came about, why it's a big deal, and what happens next. That's the difference between knowing the news and understanding it. Follow NPR's Up First podcast so you can understand what matters and what happens next. It's hard news through a human lens. And now let's head back to my conversation with Mark Joseph Stern. You've just mentioned the Purcell principle, Mark, which is the incredible elastic, right? We remember it from the last few election cycles. The court trots it out at undetermined times in undetermined ways to say like, oh, what are you doing, messing with elections right before elections? The Purcell principle, much like Christmas, comes earlier and earlier and earlier every year. And trotting it out in the first week of December, the year before an election, is like really like pumpkin spice of all legal principles. Well done. Well done, Samuel Alito. But there's other incredible elastic principles that we've seen that have become so familiar in this chamber of horrors that is particularly part of the shadow docket. And so here we've got. As you noted, the Supreme Court just full on ignoring extensive findings of fact, a really yeoman-like performance from the court below, deciding in advance that... You know, we think Texas is going to win in the end without telling us why all of this gets called out in pretty, I think, plain terms from Justice Elena Kagan writing in dissent. I mean, she has absolutely no compunctions about calling this what it is. And I think you and I agree, this is Elena Kagan putting on more or less a clinic about how. Everything that is wrong with the court and how it makes decisions right now is just manifest. If you have thoughts or want to elaborate on the ways in which Elena Kagan is now simply saying, I am calling this what it is, I'd love to hear it.

So this is a challenge to a federal law that limits the amount of money political parties can spend in coordination with their own candidates. So remember, individuals can only give congressional candidates $3,500 per election. The Supreme Court has so far upheld that cap. But individuals can give political parties way more. all told nearly a million dollars through something called a joint fundraising committee, and they can do so by exploiting these loopholes that were created by, guess who, the Supreme Court and a decision called McCutcheon from 2014. So you can only hand a Republican candidate, a $3,500 check. And it's hard to bribe someone in politics these days with $3,500. But you can hand a candidate's joint fundraising committee a million dollar check. And the committee can then route that money to the Republican Party, which will obviously want to spend a lot of it on getting their candidate elected. So this is the kind of scheme that... the courts have generally said is a problem that circumventing these limits through these kind of backdoor loopholes is a problem. And this particular way of doing things really raises a serious risk of quid pro quo agreements between donors and candidates. And That is not hypothetical. This law was passed because in the early 1970s, the dairy industry funneled $2 million to Nixon's reelection campaign in exchange for higher price controls on milk. And it did so by going through the Republican Party to avoid the limits on contributions that it would have otherwise faced. During the Watergate investigation, Congress uncovered this plot, and it enacted the law in question here to limit the amount that political parties can spend trying to get their candidates elected so the parties don't just become conduits for corruption. And by the way, the Supreme Court upheld that law. in a 2001 decision, but it was five to four with all four conservatives dissenting. So Republicans have been gunning for a do-over for years as their party has grown more reliant on mega donors. And Republican Party committees and politicians, including JD Vance, now vice president, decided to file a lawsuit asking the Supreme Court to just overturn its precedent and strike down this coordination restriction. They say that the law suppresses the free speech rights of donors and parties and candidates. by just making it harder for them to purchase elections, which was what the First Amendment was all about. And unfortunately, I think it is very likely that the Republican appointed justices will agree. And as I flicked at earlier, Mark, in the world post Citizens United, it's easy to be so cynical about whatever's left, whatever sort of like rickety, you know, strands of campaign finance reform still exist.

It feels to all of us, I think not unreasonably, like the billionaires and the tech bros and the corporations are buying up elections, pretty much as a matter of course. So why does this case even matter when super PACs are already spending billions and billions on behalf of money to interest? That train has left the station. Why does this still matter? So super PACs, at least in theory, are not allowed to coordinate with candidates they support. The Federal Elections Commission has been very lax about enforcing that rule, and candidates have certainly tested the limits, especially on the Republican side. But there are still real barriers between super PACs and candidates, much more so than there are between parties and candidates. Super PACs are independent entities. Parties and their candidates are sort of one and the same. So the whole premise of Citizens United was that this kind of independent spending could not lead to quid pro quo corruption because there was a buffer between donors and the candidates. And I think... What's pernicious about this case is that it is trying to tear down the remaining wall between parties and their candidates. And donors can, as I said, give a lot more money to the parties than they can to the candidates. So you have all of these laws premised on the idea that you shouldn't be allowed to give too much directly to a candidate because there's too high a risk that you'll demand favors in exchange for the money. That is quid pro quo corruption, the one thing. that even the Supreme Court agrees is bad. But if parties can spend unlimited sums coordinating with their candidates and parties can raise vast sums directly from donors, then they just become intermediaries for donors to buy candidates. And the Nixon episode is a perfect example of this. And so I think even in our age of super PACs, this regulation at issue here is still serving the important purpose. of preventing political parties from turning into just loot boxes for candidates. And I'm pretty sure the Supreme Court is going to ignore that and strike down this law because of its unrelenting hostility toward campaign finance reforms. And that will lead to an increase in donors cutting million dollar checks to candidates by going through parties, probably sometimes with the expectation that they'll get favors in return. What scares me... is that by and large, we're not even going to see that happening, right? The disclosure rules are so weak already. We're just going to see the corrosive results of these behind-the-scenes bribes. And the voices of ordinary people who want to participate in what remains of America's democracy are just going to get drowned out even more by the mega donors who are cutting these checks. So, Mark, we have so much more to talk about up to and including. That's not even the worst thing that's happening at Scotus next week. For the bonus curious among our listeners, we're going to talk about this more in our plus episode. But there are really other hugely consequential cases barreling down on us in the coming weeks at the court that are going to, I think, either cement Trump's vision of the world and Trump's vision of his own power or show that the court.

what has some kind of spine. Can you just briefly tell us what we'll be exploring? In the episode Pass the Velvet Rope right after this one. Yes. So on top of this blockbuster case, the Supreme Court will hear Trump v. Slaughter, which will allow it to decide whether Trump and every other president, at least in theory, should be allowed to fire all or nearly all federal officials who lead independent agencies like the Federal Trade Commission. This would... permits Trump to exercise near dictatorial control over the executive branch, abolishing one of the key checks and balances that impose some limit on his power, and allow him to take the reins of these independent agencies, make them totally subservient to the White House, and use them for his own corrupt ends. So somehow, a case that will make... our corrupt campaign finance system even worse, is not the biggest one that SCOTUS will hear next week. It will also be considering whether Trump will become pretty much an actual king and seize the authority to purge the executive branch of anybody who says or thinks anything that he doesn't like. If you are not a Slate Plus member yet, but you want to hear of this conversation, you can head over to slate.com slash amicus plus, and I'm going to share more details on membership, how to join, and what you get at the end of this show. For right now, thank you, Mark Joseph Stern. It's always a pleasure to talk to you, and we'll see you on the other side. Thanks so much, Dahlia. See on the other side of the velvet rope. We are going to take a short break, but when we come back, former naval intelligence officer Malcolm Nance joins me to explain all the ways that Pete Hegseth is out of his depth and why that is very bad for the country's fighting men and women. Summer always reminds me how quickly dehydration can catch up with me. Between warmer weather, travel, and long days with two kids under three, I can feel when water alone isn't enough. That's why I keep drip drop on hand. It's an easy way to stay ahead of dehydration before I start feeling tired. Drip drop is proven fast hydration that's built to hydrate you faster and more effectively than water alone. It uses science-based formulas for rapid hydration, so you feel results fast while getting three times the electrolytes of leading sports drinks. And it's trusted by over 90% of top college and pro sports teams because hydration isn't just something you do when you're behind. It's how you stay ahead. DripDrop Zero Sugar Plus is a breakthrough fast absorbing formula with an advanced blend of six key electrolytes, 15 essential vitamins and nutrients, and no sugar or artificial sweeteners. There are 16 original flavors and eight zero sugar plus options, including my preferred choice after a long day outside with the kids, Zero Sugar Passion Fruit. Right now, DripDrop is offering podcast listeners 20% off your first order.

order. Go to dripdrop.com and use the promo code amicus. That's dripdrop.com promo code amicus for 20% off. Stock now at dripdrop.com and use promo code amicus. AMICUS. The promise of freedom has shaped our country. Freedom can feel secure until someone decides your rights don't apply to you. Democracy can feel secure until the people enforcing the law decide to ignore it. That's why the National Police Accountability Project is training hundreds of lawyers to hold police and federal law enforcement accountable for abuses of power because democracy is protected by people willing to defend it. People like you. Support the fight. Donate at national police accountability.org.

Last Friday, the Washington Post ran a story about a September 2nd 2025 attack on a boat in the Caribbean that was allegedly carrying drugs to the U.S. An edited video clip of that strike was released at the time. It was the first of 24 boat strikes that have now taken 87 lives. The post reported that before the strike, quote, defense secretary Pete Hegseth gave a spoken directive according to two people with direct knowledge of the operation. The order was to kill everybody, end quote. We now know that two men clinging to the hull of that boat were, quote, blown apart in the water, end quote, after the fact, and evidently pursuant to that order. Long before. Any of that happened. There were looming constitutional and legal questions about these unauthorized strikes in the Caribbean and the eastern Pacific Ocean, about whether the U.S. is at war with small sea vessels, and about whether alleged drug smugglers are properly designated terrorists, and further whether the U.S. government can suspend habeas corpus by applying the Alien Enemies Act wherever, whenever. Last week, several members of Congress with military or intelligence experience released a video urging armed service members not to feel compelled to follow illegal commands. Donald Trump immediately suggested that this video was, quote, seditious behavior, punishable by death. The FBI opened an investigation. The White House now claims that it is not possible for a sitting president to give an illegal order ever. The Law of War is on a collision course with a monarchic presidency with sweeping implications for the Alien Enemies Act, Congressional Power, international law, and diplomacy, and for the upcoming midterms. Malcolm Nance is a former career U.S. Naval Intelligence Officer who served in the U.S. Navy from 1981 to 2001. He specializes in counterterrorism, intelligence and violent extremism, as advisor for the U.S. government's law enforcement, homeland security and intelligence agencies. He's author of numerous books, including They Want to Kill Americans, the Armed Militias, Fanatical Terrorists, and Deranged Ideology of the Coming Trump Insurgency, and The Plot to Destroy Democracy, How Vladimir Putin and His Spies Are Undermining America in Dismantling the West. Malcolm's podcast, Black Man Spy with Malcolm Nance, is a must listen. Welcome finally to Amicus. It is so good to have you on. I'm a little bit sad. We're going to talk about something so dire. But I just want to say, like, I've been waiting for something dire to have you on, so it feels a little bit perfect. Waiting for something dire. I was waiting for you to bring donuts. No, I was waiting for something dire. And the funny thing is, is that Amicus... is a good way of putting this because I want to be on your side on this subject. So I'm glad to be here. I wonder if we can just start by you telling me, like as if I'm seven, Malcolm, what are the obligations of any member of the United States military with respect to illegal directives? There is an affirmative duty. I just said that, right? To refuse illegal orders.

Would you just walk me through where that is codified, what that obligation is? Sure. And, you know, this requires people to understand that there's a history here, right? There were times in American history where people were outraged at the behaviors that were going on within wars. One of the earliest ones was George Washington when he was fighting the British and had to displace out of Manhattan. and moved over to what is now Fort Lee, New Jersey. He watched American captive soldiers get bayoneted in what was now called Washingtonites by the British, who did it openly and publicly so that he could see them killing the prisoners. And he was outraged by this, outraged enough that he issued the first. orders on the treatment of captives within the laws of war. And our entire Uniform Code of Military Justice is really based on George Washington's outrage of how the soldiers of the American Revolution were treated by the British. He insisted that they have good care and feeding of them. In fact, after his amazing victory coming all the way from Valley Forge and crossing, down near New Hope into what's now known as Washington's Crossing. And taking Trenton, he really treated the Hessian soldiers, the German mercenary contract soldiers for the British Army so well that as much as 80% of them settled in the United States at the end of the war. They were not abused. They were not bayoneted. And so this set the pace for the Uniform Code of Military Justice, also encompassing the behaviors and the ethics of modern war. The Civil War had its atrocity. You know, the Confederates at Andersonville Prison. just inhumanely treating POWs, Nathan Bedford Forrest, the Confederate General, who massacred 100 surrendered Union soldiers who just happened to be black. He spared every white, he executed every black, to the point where his own men were offended by his treatment of the blacks. Of course, he would go on to create the Ku Klux Klan. the Nazis behavior, the Japanese behavior on World War II. And a good example of that is the captain of a German U-Boat, U-852, run by a Captain-Luyvesant, Act, who, in a secret mission going around Cape Town, South Africa, ran upon a merchant ship, sank it, and knowing that the debris and the survivors would tip the British there was a U-boat in the area off. He and his senior officers got on deck with machine guns and executed 33 of them in the water, shot each and every one of them in the water and threw hand grenades at them. And he claimed it was to sink floating debris. No, 32 out of 35 were people in life preservers and life boats. And the floating debris were the living people. Well, by the way, those Nazis were all executed.

for doing that in the war crimes trials at the end of World War II. This particular case is used as an example in Uniform Code of Military Justice Section 83.2.1 in which the mariners who have been shipwrecked must be rescued. That is the primary example of a war crime. listed in the Uniform Code of Military Justice. The first example is, you do not shoot shipwrecked mariners. And shipwrecked, as I defined on my podcast this week, is any vessel in which the buoyancy has been removed through to combat damage or distress other than a submarine, unless the submarine itself is sunk, who finds themselves at the mercy of the sea. will now be in a ship direct state. And then the United Nations Treaty of Law of the Sea kicks in, in which all mariners are obligated to come to the rescue of those who are in distress anywhere. All of this being said, it led up to the Malai massacre in 1968 by Lieutenant William Cali, who was given orders to... Kill everyone who they believe were North Vietnamese or South Vietnamese Vietanese in this one sector. And even though when informed that it was women and children and elderly, they could find no military age males, they were told to kill them all. And William Calley ordered his company to execute what the numbers are arguable, 300 to 500 civilians. But these guys came with cameras. And there was a military photographer with them. And there's a famous photo of a group of women and children huddled together alive. And the next photo of them in a road dead. And I mean, you can identify each individual person. And, you know, his orders were waste them. Kill them all. That created the trial that changed and codified what a U.S. service member was obligated to do and not do. A U.S. service member is obligated to execute all orders given to them by superior officers in the chain of command. All lawful orders. Good example. Go clean the main deck on a ship. I've done that. Go chip paint on the missile deck. with a heavy chipper and, you know, a scrub brush, and you've got a day to do it. I've done that. Use toxic chemicals to, you know, remove paint. I've done that. Lawful orders. Go to the forward missile magazine, set a fire, and let's see if the magazine's fire suppression system will come on or if the ship will blow up. That's an unlawful order. It will endanger you, the vessel, or any person around you, and or civilians. Geneva Convention of 1949. Civilians are at all times considered non-combatants, only in exceptional circumstances. This grounding is necessary because we get trained all of this at boot camp. Then we are reminded of all of this throughout our career.

in alarming regularity. Anytime you're about to deploy overseas, the judge advocate general comes in, or his representative comes in, he stops doing his divorce court on Friday, and he comes in and he lectures you on, you know, uniform code of military justice, Geneva Convention Laws of War, Law of the Sea, anything that's applicable. And it really comes down to one sentence. Do not commit the crimes that our previous adversaries have committed, such as shooting civilians, executing prisoners, carrying out acts which we considered unlawful at the time, or executing unlawful orders in which, by the way, the military says this. A rational person would consider a crime or an existential danger to the safe handling of a unit or a ship. So it's hammered into our heads from day one. That Palaeus example that, you know, was at the very beginning end of what becomes the Nuremberg trial. It is so on point here. I mean, it really is the paradigmatic case, as you said, about what happens when you have people literally holding onto the hull of a broken down ship and you're... executing them. So this is not a gray area. No. You know, there are certainly claims that, oh, you know, they were about to, I don't know, signal with their ample free hands that more, you know, narco-terrorists were going to come and get the... Can we stipulate a few things before we go any further? Let's stipulate. It's very important. Yes, sir. I mean, I've worked in counterterrorism for almost 40 years. I've written textbooks that are used at the Federal Law Enforcement Training Center, the terrorist recognition handbook. three editions. And, you know, I've had to deal with a lot of nasty people in this world. But what's happening now is Donald Trump has created a new paradigm in defining who is and who is not a combatant. And since we are now in the war on drugs, 2.0, to say that the citizens of the United States are being killed through weapons that are being launched from Colombia, Venezuela, Ecuador, and that the prepackaged drugs, which, by the way, cocaine does not have the death rate of fentanyl. 1% of fentanyl comes from Central and South America. 1%. 99% is trans-shipped from China with precursors to Mexico, then it comes in there. If we are going to say an individual who is engaged in an illicit drug trade at any stage is now equal to an enemy combatant in a war and that their materials which do not actually kill you right away is considered a weapon system and that...

Drug manufacturing sites are now considered the industrial base of a foreign military power, then the problem is that none of this reaches the definition of terrorism. terrorism is an act or a threat of political violence in which the audience is larger than the immediate victims. They are not sending a message to the United States that they want to kill us with drugs and this guy who may die on the street is designed to put fear into the hearts of 340 million Americans. No, that was the president of Honduras that Trump just pardoned. The man himself said, I will stick cocaine up the nose of every American and helped drug traffickers bring in 400 tons to the United States. But he managed to pay off President Trump. So these people, by no definition, no legal definition are terrorists. They are not. There's civilians who are carrying out illicit trade. They are not pirates. Because they are not commandeering and seizing with the intent to enrich on the high seas. That's piracy, which, by the way, it's still on the books. And trust me, Jesus, they are going to test this. It's still on the books in the U.S. Navy that the captain of a worship can hang. a pirate. And I would not be surprised if some captain gets a bug up his butt and feels that Pete Hegseth has got his back. And he comes in, he has three or four people that they captured hung from the yard arm and claims that they're pirates, never been stricken from the books. The point is, you cannot just go around willy-nilly and kill civilians. More in a moment with Malcolm Nance. Correct me if I'm wrong, Malcolm, but it's also true that in some of the other boat episodes, the United States has seized folks who are on the boats and repatriated them to their home countries. So the idea that every single person on this boat is a deathly criminal who needs to be eradicated, including with the second tap, is belied by the fact that we have already sent folks home to their home countries. Yeah, why did we even dispatch a helicopter to recover them out of the water and return them to Ecuador and Colombia, of which they were citizens? I mean, the only vessels that you could argue that could have been sunk as a clandestine platform for infiltrating drugs were the two narco-mini subs, which came from Colombia. You don't see us saying we're declaring war on Colombia today, but I'm going to tell you what the legal precedence that Trump is using and the policy document that he has been advised on that all of these deaths, or I would arguably call murders, have been carried out under. And it's very simple. Most of you have probably seen it. Actually, it starred Harrison Ford. And it was a Tom Clancy novel called A Clear and Present Danger.

in which a president whose FBI director is killed in Colombia declares a secret war on Colombia and starts putting special operations on the ground to blow up drug labs and kill drug leaders extra legally. Just doing it. And we're also sinking boats. and shooting down drug-narco-flying aircraft, including with American citizens on board. That's where Trump got this idea. I'm not joking. There is no legal basis for anything he's doing other than... Tom Clancy did it. It was cool in the movie with Harrison Ford. Let's do some more. So it's the authorization of the use of Tom Clancy that is, in fact, the military. So there's going to be some low-level guy who thinks that Pete Hegseth has his back. And this is the single most- Low-level. Or mid-level. Deputy commander of the Special Operations Command in charge of this. In this case, we have an admiral. But I just- A seal admiral of which there are like. And a well-respected, decorated, you know, this is not a hack. And the reason I want to talk to you about this piece of it, and this is so essential to understand how the armed forces works, is I just want to play you a clip from Pete Hegseth's confirmation hearing. As a reminder that he told us exactly who he was. And I want you to help me understand. Why it is that in the intervening weeks, so many former and current military leaders were worried about this appointment. You've already disparaged in writing the Geneva Convention, the rules of law. All of these things. How will you be able to effectively lead a military in which one of the principal elements is discipline, respectful, lawful authority? You have made statements to your platoon after being briefed by a JAG officer. Well, by the way, would you explain what a JAG off is? I don't think I need to, sir. Why not? Because the men and women watching understand. Well, perhaps some of my colleagues don't understand. It would be a JAG officer who puts his or her own priorities in front of the warfighters. Their promotions, their medals in front of having the backs of those are making the tough calls on the front lines. Thank you, Senator. Interesting. Jagoffs, we're going to be more lethal. We're going to remove restraints. How could I forget that? He has said, Malcolm, to be clear, from the jump, that his fix for the U.S. military would be putting the interests of war fighters ahead of all the lawyers and the laws and the jags that handcuffed these poor, poor individuals with red tape and all this, like, legal niceties. Yes.

Trump and Higgs have in fact hollowed out the infrastructure that would be tapped to answer questions, including Jags, about what is legal and what is not legal. And I just feel like you have been crystal clear, certainly since I've heard you talk about this, that that does not protect American war fighters. At the end of the day, it does not make them safer. And I would love for you to just explain why. Taking away all legal restraints and then taking away the layer that is, let me seek advice, is profoundly dangerous. First off, I just want to point out to you that let's talk about Pete Hegseth's background. He was not even a regular Army officer. He was a National Guardsman. who asked to go on active duty with the regular army. He got seconded there as a young officer. And his entire life is what we call it the company level, right? Where the most people he would have been in charge of or near being in charge of would have been about 300 people. But he was not in command of the units that he went to. He was an assignee. He was like an extra body, right? And he went to Afghanistan and he got into his head that they were not allowed to do cool guy stuff, fun stuff, right? Based on what his ideology was. Now, don't forget, 2016 Pete Hegseth. gave a speech talking about how they all had an obligation not to commit war crimes. So right now, 2025 Pete Hegseth should actually recall 2016 Pete Hegseth back on to active duty and charge him with court-martial for stating the law correctly like the six service members and senators and congressmen did. But let's set that aside for a minute. This man would have been the equivalent, if you are a supreme... court clerk or someone who argues before the Supreme Court. His rank would have been the equivalent of a paralegal. in a mall lawyer's office. Really? He does not have the experience. He got this thing into his head when he was in the army that the guys who really are doing all the work were officers at his rank and guys who were staff NCO, staff sergeants, at the rank of E6. And he constantly refers to this. We need to be thinking about our troops at the E6 level. Well, there's a reason that he says that. Because the E7, E8, and E9 level, in the Navy, which is what I was in, you actually change uniforms when you make E7, when you become a chief petty officer, right? You are the living embodiment of common sense, technical skill, and, as I like to call it, recalibration of stupid.

Okay, the E7 level is what, are you allowed to use naughty language on this progress? I don't know. Okay, the E7 level is the, are you fucking kidding me level? Where an officer comes up and makes a stupid recommendation, the first words out of my mouth, I have an obligation to say, are you fucking kidding me? And then I will follow through with the professional, technical, legal, and moral obligation of whatever it is that he is asking me to do. Junior officers are trained by senior people like me. My E6s below me are tasked to do the assigned work that I need them to do. It's the E7, the Army Master Sergeant's, the Marine Gunnery Sargeers, the Air Force Chief and Chief Master Sargent. Our job is to make sure you don't fuck up. Now, when I was just recently in Washington, D.C., in August, I went with a group called Remember Your Oath. And when the National Guard deployed there, and I met a sergeant major, a black sergeant major of the Louisiana National Guard. This guy was in charge of all Louisiana Guardsmen. And I was like, hey, there's Smajor. That's what we call them Smajor. Hey, there's Smajor. Glad to see you in Washington, but I hope your full-time job here is making sure nobody does anything stupid. And he goes, no one is going to do anything stupid as long as I'm here. And I was like, enjoy your time in D.C. Get more ice cream. That's the attitude of the supervisory level of the armed forces, the E7, 8, and 9s. I find it fascinating for Pete Hegseth, the senior enlisted advisors. He does not want them in the thinking part of the chain of command when it comes to orders. He went to the next level down below, the top of the stupid level. And many massacres have happened at that level. Famous one, the Haditha massacre by the U.S. Marines in 2004. And Marine Corps staff sergeant in E6, one of his guys got killed by an IED. He went into the village nearby and he slaughtered 25 civilians, the majority of whom were women and children. Only five men were killed in there. 20 were women and children, including a baby down to age one. In uniform. By the way, when every one of those flag-ranked officers were called in for his little speech at Quantico, right? 900 of them. Well,

900 of them all had their senior enlisted advisor with them, which was an E8 or an E7, and they had an average of 20 years in service. As a matter of fact, that body that day, we calculated had 32,000 combined years of military experience to Pete Hegseth's four years playing around on active duty in his like eight months in Afghanistan, whatever it was. They know better. That's all I'm here to say. They know better. And anyone that follows an order now from here on out in the Navy, I wear the rank of anchors. We have a saying when it's time to say, I'm going to take you down, you are ordering us to commit crimes. We say, I'm going to throw my anchors. I'm dropping my anchors on this one. I will not commit crimes for your stupid ass. That is what Admiral Bradley should have said. Malcolm, I want to ask you this. We're in the wake of Signalgate and now an IG report that just came out about Signalgate. It's... perfectly clear now what we all knew, which is how compromising that was to American forces. And the man's an idiot. And I want to just give you a chance to talk about the fact that Pete Hegseth, his initial impulse, when all of this damning reporting comes out from the Washington Post last week, is posting a photo of a cartoon character, Franklin the Turtle, firing on a boat from a helicopter. And I guess I'm just... I have a bit of a two-part question, but they're both like Malcolm questions. One is how does it possibly benefit Donald Trump, Congress, the military to keep a clown like this in office when he is clearly endangering troops? And then just the coda to that question, you can answer it or not, is he going to troll his way out of this too? Well, first off, we're talking about the Donald Trump regime here, right? I won't give them the benefit of calling them an administration because we've seen no administration whatsoever. We've seen the dismantling of government and we see a bunch of internet trolls and Fox News hosts, 30 of which are all leading this government or what they call a government. Listen. A government that's led by a clown isn't a government. It's a circus. And you are watching the circus, and Trump enjoys the three-ring spectacle here. And trust me, none of this is Cirque de Soleil, okay? This is just literally Keystone cops. Will he get away with this trolling? Yes, he will. Donald Trump, I do a podcast every week with Lev Parnas and Michael Cohen, which I amusingly called two felons and a spy. And they know him personally for years. And they say he will never admit fault. The only way Pete Hegseth is going is if the level of embarrassment of Trump personally.

All right. Pete Hegseth would have to say something personal about Trump like, that bastard threw me under the bus. And then he would let him go. But he will keep him there from now on. And his talk about lethality, removing the guardrails of lawyers. I mean, he fired six people in his first few days. First person was the head of the Coast Guard because she was a woman, even though she was famous, all right, famous for rescuing mariners during the perfect storm. The second was the... black chairman of the Joint Chief of Staff. The third was the female chief of naval operations. The fourth, fifth, and six was the chief jag of the Secretary of Defense, the Armed Forces. Top three jags in the Armed Forces. Got rid of the lawyers. So what? So you think we won't see this? The judge advocate general of YouTube is watching. Okay, that means we're going to see the stupid shit videos that you do that will kill people. And here's what we're going to find out next, Dolly, that there were probably five, six, or seven of these events. Courts are going to rule that these attacks were already unlawful, firing on civilians on the high seas, and that we were just out there committing murder. Yeah, that's a pretty sobering place to end. And it's also, I think I just want to flag our friend Asher Rangappa, who just skated the other day. And I think it's underlying some of what you're saying right now, Malcolm, which is... When the U.S. commits war crimes, it puts American troops in danger, too, because it gives a green light to other countries to think that they can do the same. So it's not just, as you're saying, that we are subjecting people to court martial. Can I give you one short example on that particular point? So in 2004, there was four soldiers left the town of Nasaria, went to a town called Mahmoudia, where they raped and murdered a 14-year-old girl, her mother, father, and six-year-old sister. And after they group raped her, they set fire to her and killed her, right? And covered it all up. Four soldiers. The next day, Al-Qaeda. kidnapped two U.S. Army soldiers on a bridge, decapitated them, eviscerated them, and emasculated them. So six people died from that event that were innocent in this whole thing. We emboldened our enemies. By saying, look, they have no laws, we will go, we will fight with no laws. And Pete Hegseth desperately wants to fight with no laws. And so does Donald Trump, which is why he pardoned two people who were adjudicated by military courts of murder. And one of them was just straight up murder. The other one was shooting a prisoner. And pardon both of them. He loves them. He loves these characters. And now we're going to have to deal with the shame of this all.

Malcolm Nance is a former career U.S. Naval Intelligence Officer who served in the U.S. Navy from 1981 to 2001, and he specializes in counterterrorism, intelligence, and violent extremism. His books are too many to name, but I do want to flag both the podcast he just talked about now and his podcast, Black Man Spy, with Malcolm Nance, must listens all Malcolm. Thank you very, very much. I know that this has been like an incredibly in a year of seeing you upset. I don't know that I've seen you as upset as I saw you talking about what this is doing to American Fighting Forces. And I'm just so grateful for your work and your time today. Thank you so much for being with us. It's my pleasure. I'm just a pissed off old chief without a cup of coffee. So I get even angrier. That is all for this regular episode of amicus, but right now I'm going to head over to join Mark Joseph Stern in our bonus room where we're going to be looking ahead to the coming week at the Supreme Court. Six of the nine justices are about to play yet another game of legal theory bingo, where it's all unitary executive, all the time for their guy, and it's all major questions doctrine for your guy. If you want to join us, you can subscribe to Slate Plus directly from the Amicus show page on Apple Podcasts on Spotify or visit slate.com slash amicusplus to get access wherever you listen. Our bonus episode is available for you to right now. We'll see you there. And remember, a Slate Plus membership is more than just access to our Amicus Plus bonus by joining at slate.com slash amicus plus. You'll access all of Slate's articles, all of our podcasts, ad free, all of our podcast extras, and you will be supporting the work that we do. And I would humbly suggest that Slate Plus membership makes a very fine holiday gift. Thank you so much for your letters and your questions. Keep them coming. We are reachable by email at amicus.com. You can find us at facebook.com slash amicus podcast. You can also leave a comment if you're listening on Spotify or on YouTube, or you can rate us and review us on Apple Podcasts. Sarah Burningham is Amicus's senior producer. Our producer is Patrick Fort. Hillary Fry is Slate's editor-in-cheek, Susan Matthews, is executive editor, Mia Lobel, is executive producer of Slate podcasts. And Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week. Until then, hang on in there.

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