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'God Squad' Puts Endangered Whales at Risk · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: The Committee, in doing this will be issuing an exemption
• 0:12
  Speaker 2: from the requirements of the ESA for all oil and
• 0:14
  Speaker 2: gas expiration, development and production activities associated with the Boehm
• 0:19
  Speaker 2: and Bessie Outer Continental Shelf.
• 0:23
  Speaker 3: Their called the Gaunt Squad because they can play God
• 0:26
  Speaker 3: in deciding whether a species lives or dies. The Endangered
• 0:31
  Speaker 3: Species Committee last met thirty four years ago, but it
• 0:35
  Speaker 3: was convened last week by Interior Secretary Doug Bergham Why
• 0:41
  Speaker 3: to consider waiving the protections for critically endangered whales and
• 0:45
  Speaker 3: other species in the Gulf of Mexico in favor of
• 0:49
  Speaker 3: oil and gas development. Defense Secretary Pete Hegsef said that
• 0:53
  Speaker 3: pending litigation by environmentalists is a threat to oil and
• 0:57
  Speaker 3: gas operations in the Gulf, risking national security.
• 1:02
  Speaker 4: These legal battles waste critical government resources and make it
• 1:05
  Speaker 4: impossible for energy companies to plan and invest in new projects.
• 1:10
  Speaker 4: When development in the Gulf is chilled, we are prevented
• 1:13
  Speaker 4: from producing the energy we need as a country and
• 1:17
  Speaker 4: as a department.
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  Speaker 3: After fifteen minutes without any testimony from experts or discussion
• 1:24
  Speaker 3: by voice vote, the committee unanimously exempted all oil and
• 1:28
  Speaker 3: gas activities in the Gulf of Mexico from the Endangered
• 1:32
  Speaker 3: Species Act. At risk is the extinction of endangered species
• 1:37
  Speaker 3: such as rice, as whale. There are only fifty left
• 1:40
  Speaker 3: on Earth, and they're all in the Gulf. Also Kemp's
• 1:44
  Speaker 3: Ridley's sea turtle, the world's smallest and most endangered species
• 1:48
  Speaker 3: of sea turtle, and endangered manta rays, to name a few.
• 1:53
  Speaker 3: Joining me is environmental law expert Pat Parento, a professor
• 1:57
  Speaker 3: with the Vermont Law and Graduate School who's had a
• 2:00
  Speaker 3: experience with the God Squad. Pat tell us about the
• 2:03
  Speaker 3: God Squad.
• 2:04
  Speaker 5: So this is a cabinet level committee federal officers. It
• 2:10
  Speaker 5: was created in nineteen seventy eight in response to the
• 2:14
  Speaker 5: Supreme Court's decision in the infamous Teleco Damn case TVA
• 2:19
  Speaker 5: versus Hill, where the Supreme Court said, if there's a
• 2:22
  Speaker 5: violation of the Endangered Species Act that could result in
• 2:27
  Speaker 5: the extinction of a species, the courts are basically powerless
• 2:33
  Speaker 5: to do anything about that. Only Congress could exempt an
• 2:38
  Speaker 5: action that might jeopardize a species. And so Congress responded
• 2:44
  Speaker 5: to that decision by creating this cabinet level committee literally
• 2:49
  Speaker 5: with the power of life or death over a species,
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  Speaker 5: which has now come to be known as the God Squad.
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  Speaker 3: The God Squad has only met three times in its
• 2:59
  Speaker 3: history until last week. What was different about this meeting.
• 3:03
  Speaker 5: Well, this time around, for the first time, Berghum convened
• 3:08
  Speaker 5: the committee with just the federal officers, you know, and
• 3:11
  Speaker 5: the other God Squad proceedings, there were always states involved,
• 3:16
  Speaker 5: but this time it's just the Feds. And this time
• 3:20
  Speaker 5: the committee was convened at the request of Secretary Hegseth,
• 3:26
  Speaker 5: who is claiming that there's a national security issue here
• 3:32
  Speaker 5: with regard to oil and gas development in the Gulf
• 3:35
  Speaker 5: of what we still call Mexico Gulf of Mexico, And
• 3:39
  Speaker 5: so this is the first time that that kind of
• 3:44
  Speaker 5: national security rationale has been invoked. And the law, the
• 3:51
  Speaker 5: nineteen seventy eight Amendments, does say if the Secretary determines
• 3:56
  Speaker 5: there is a national security threat as a result of
• 4:00
  Speaker 5: some action that has been stopped by the Endangered Species Act,
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  Speaker 5: then the Committee must issue an exemption. So the real
• 4:10
  Speaker 5: question is there really a national security emergency in this situation,
• 4:15
  Speaker 5: And the answer is no, there is not.
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  Speaker 3: You're anticipating my next question. Is there any evidence at
• 4:21
  Speaker 3: all that the Endangered Species Act has resulted in any
• 4:25
  Speaker 3: restrictions on the amount of oil produced in the Gulf.
• 4:30
  Speaker 5: None. In fact, oil and gas development in the Gulf
• 4:34
  Speaker 5: is at an all time high. There is no action
• 4:39
  Speaker 5: that has been stopped by the Endangered Species Act. There
• 4:43
  Speaker 5: are lawsuits challenging the Trump administration's analysis of threats to
• 4:51
  Speaker 5: various species, most prominently the Rice's whale, which is one
• 4:55
  Speaker 5: of the most endangered whales and marine mammals in the world.
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  Speaker 5: There are only fifty or so of these whales left,
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  Speaker 5: and they're all in the Gulf. Their primary habitat is
• 5:08
  Speaker 5: close to Florida, actually, and clearly oil and gas development
• 5:12
  Speaker 5: poses a serious threat to these whales. But there are
• 5:16
  Speaker 5: many other There's over a dozen listed endangered species in
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  Speaker 5: the Gulf. There are sea turtles, there are sperm whales,
• 5:25
  Speaker 5: there are manatees. They're all kinds of iconic marine mammals
• 5:30
  Speaker 5: on the list of endangered species. But the point is
• 5:34
  Speaker 5: none of them have stopped any of the oil and gas,
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  Speaker 5: either exploration or development. So this is a made up,
• 5:42
  Speaker 5: fictional crisis. Does that sound familiar for this administration?
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  Speaker 3: And the Defense Secretary said, the pending litigation by environmentalists
• 5:53
  Speaker 3: threatens to shut down all oil and gas operations. But
• 5:57
  Speaker 3: if it's pending, then they don't know what the result
• 6:00
  Speaker 3: will be and it could take many years, as we
• 6:02
  Speaker 3: know for litigation.
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  Speaker 5: Right And the point is that Congress never intended or
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  Speaker 5: even considered the notion that lawsuits would be a trigger
• 6:13
  Speaker 5: for exemptions. You have to understand if the entire oil
• 6:17
  Speaker 5: and gas program, and that's what Hegseth is demanding an
• 6:21
  Speaker 5: exemption for the whole operation in the Gulf, if a
• 6:25
  Speaker 5: lawsuit and there's only one lawsuit right now, was enough
• 6:29
  Speaker 5: to justify an exemption, that means there is no Endangered
• 6:33
  Speaker 5: Species Act protection for any of these species. That's the
• 6:37
  Speaker 5: dramatic impact of an exemption. And that's why Congress said
• 6:41
  Speaker 5: it is to be emphatically a last resort mechanism where
• 6:46
  Speaker 5: there is an irresolvable conflict between a vital federal action
• 6:52
  Speaker 5: and the Endangered Species Act. We don't have anything like that,
• 6:57
  Speaker 5: but the idea that an exemption could be granted could
• 7:00
  Speaker 5: wipe out all kinds of protections for these species in
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  Speaker 5: the Gulf.
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  Speaker 3: Pat Why do you think they decided to do this
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  Speaker 3: at this point.
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  Speaker 5: Well, Trump issued an executive order a year ago in
• 7:13
  Speaker 5: which he said that the Endangered Species Act poses a
• 7:18
  Speaker 5: threat to energy development in the US, by which he
• 7:21
  Speaker 5: means fossil fuel development, oil and gas in particular, and
• 7:26
  Speaker 5: he ordered the Secretary of Interior to convene the god
• 7:29
  Speaker 5: Squad on a quarterly basis, sort of like a bridge tournament,
• 7:33
  Speaker 5: you know, get them together and see if they can
• 7:35
  Speaker 5: figure out how to exempt federal actions from the Endangered
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  Speaker 5: Species Act. And then secondly, he said, and there is
• 7:42
  Speaker 5: this emergency provision in the Endangered Species Act rules which
• 7:47
  Speaker 5: allows for a kind of fast track sort of consultation, review,
• 7:52
  Speaker 5: and analysis of federal actions, again fossil fuel development actions.
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  Speaker 5: So he also said, use that emergency revision as often
• 8:01
  Speaker 5: as you can. So we know that Trump has ordered
• 8:05
  Speaker 5: his cabinet to get environmental laws out of the way
• 8:09
  Speaker 5: for fossil fuel development. So this action is part of
• 8:13
  Speaker 5: that overall attack. And it isn't the only attack on
• 8:16
  Speaker 5: the Endangered Species Act. The Trump administration is also proposing
• 8:20
  Speaker 5: to roll back all of the Biden rules that we're
• 8:23
  Speaker 5: strengthening protections for endangered species. Plus the Trump administration is
• 8:29
  Speaker 5: firing and running off the staff of the Fish and
• 8:33
  Speaker 5: Wildlife Service. It's been reduced by twenty percent the staff
• 8:37
  Speaker 5: and cutting its budget. So there's a full scale assault
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  Speaker 5: on all of the aspects of the Endangered Species Act,
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  Speaker 5: and this exemption is just one aspect of that.
• 8:47
  Speaker 3: There are two lawsuits over this decision, one by the
• 8:51
  Speaker 3: Center for a Biological Diversity and the other by the
• 8:55
  Speaker 3: National Resources Defense Counsel. What are the grounds they're alleging?
• 9:00
  Speaker 5: Wu Species Act sets up a really complex series of
• 9:03
  Speaker 5: steps for exemptions. I know this because I'm the only
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  Speaker 5: lawyer that's been involved in all four of the God
• 9:10
  Speaker 5: Squad proceedings, all four of them. And I was the
• 9:13
  Speaker 5: spot at Owls lawyer in the last god Squad proceeding,
• 9:17
  Speaker 5: and I was the Whooping Cranes lawyer in the first
• 9:20
  Speaker 5: god Squad proceeding. So I've been with this point. You
• 9:23
  Speaker 5: have good clients, Yeah, good clients is my favorite clients.
• 9:29
  Speaker 5: They never complain in any event. So you know there's
• 9:33
  Speaker 5: multi steps involved in this process, including did you engage
• 9:37
  Speaker 5: in good faith consultation, did you make a diligent effort
• 9:40
  Speaker 5: to identify alternatives to avoid jeopardy and avoid a conflict
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  Speaker 5: that would require an exemption. Did you write an adequate
• 9:47
  Speaker 5: environmental impact statement? Did you write an adequate biological assessment?
• 9:52
  Speaker 5: You see what I mean. So there's there's all kinds
• 9:54
  Speaker 5: of these safeguards. And I know about these safeguards because
• 9:57
  Speaker 5: I had a hand in lobbying Congress to inc them.
• 10:00
  Speaker 5: None of that's been done, none of those steps has
• 10:03
  Speaker 5: been followed. Hexcess showed up at this meeting, which lasted
• 10:07
  Speaker 5: fifteen minutes, among the cabinet officers, all of whom are sickophants,
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  Speaker 5: you know, nodding in agreement with what Hegseth is saying,
• 10:15
  Speaker 5: and praising Hegseth for his incredible loyalty to the country
• 10:19
  Speaker 5: and all that. But nothing about whether there really was
• 10:22
  Speaker 5: an irresolvable conflict, nothing about the fact that there had
• 10:26
  Speaker 5: been steps taken to protect the risest whale. And those
• 10:30
  Speaker 5: steps are very modest. They're common sense steps. They basically
• 10:34
  Speaker 5: come down to keep a sharp lookout for whales when
• 10:38
  Speaker 5: the vessels are moving through the gulf, and if there
• 10:41
  Speaker 5: are whales in the vicinity, slow down, limit your speed,
• 10:47
  Speaker 5: don't run them over. I mean, these are the kinds
• 10:50
  Speaker 5: of very modest protections. In fact, I don't think they're
• 10:54
  Speaker 5: totally adequate protections, but the point is those are the
• 10:57
  Speaker 5: only protections that were imposed on oil and gas development.
• 11:01
  Speaker 5: Now the oil industry doesn't want to slow down. They
• 11:04
  Speaker 5: want to speed up. They want to get as much
• 11:06
  Speaker 5: oil out as fast as they can, particularly now.
• 11:08
  Speaker 1: Right.
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  Speaker 5: So that's kind of the context of what we're talking about.
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  Speaker 5: Very modest steps to protect these highly endangered, critically endangered species,
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  Speaker 5: and yet this administration is saying, the hell with all
• 11:23
  Speaker 5: of that. It's full speed ahead, Damn the whales, drill
• 11:27
  Speaker 5: the oil.
• 11:28
  Speaker 3: There's a question of whether this kind of decision by
• 11:32
  Speaker 3: the God Squad is even subject to judicial review.
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  Speaker 5: Yes, we'll find that out because this is the first
• 11:40
  Speaker 5: time that a national security rationale has been used, and
• 11:44
  Speaker 5: there's no precedent for how that gets reviewed, how heccess
• 11:47
  Speaker 5: determination gets reviewed. But the legislative history, and again I
• 11:52
  Speaker 5: had a hand in this, of the nineteen seventy eight amendments,
• 11:55
  Speaker 5: makes it really clear that that decision is subject to
• 11:59
  Speaker 5: judicial review under the Administrative Procedure Act in the district courts,
• 12:05
  Speaker 5: and both the NRDC and the Center for Biological Diversity
• 12:09
  Speaker 5: have filed lawsuits in district court in DC challenging the
• 12:14
  Speaker 5: exemption and challenging heccess finding. So we will find out
• 12:20
  Speaker 5: relatively soon, I think, whether the courts are going to
• 12:23
  Speaker 5: take review. We do know this that when a national
• 12:28
  Speaker 5: security reason is invoked, the courts are very careful about
• 12:33
  Speaker 5: how to review that. In fact, they're very deferential generally
• 12:37
  Speaker 5: on questions like that. But whether is zero evidence of
• 12:42
  Speaker 5: a national security threat, that's a very different situation. We
• 12:46
  Speaker 5: know that the Trump administration invoked national security when they
• 12:51
  Speaker 5: issued stop work orders on offshore wind farms, all five
• 12:56
  Speaker 5: of them off the East Coast this past year, and
• 12:59
  Speaker 5: the courts uniformly in all five cases rejected hegst's invocation
• 13:05
  Speaker 5: of national security. Judge Lambert in the DC case actually
• 13:11
  Speaker 5: looked at the classified documents that Hegseth was citing for
• 13:16
  Speaker 5: stopping work on these projects, and Judge Lambert said, I
• 13:20
  Speaker 5: don't see any national security threat in here at all.
• 13:23
  Speaker 5: So my expectation is we'll see something like that. To
• 13:28
  Speaker 5: the extent that Hegseth has some kind of classified information
• 13:32
  Speaker 5: he's relying on which he hasn't made public, the courts
• 13:35
  Speaker 5: are going to demand to take a look at that
• 13:37
  Speaker 5: and determine for themselves whether there really is a basis
• 13:41
  Speaker 5: for it. If there were some evidence that the Endangered
• 13:45
  Speaker 5: Species Act was somehow affecting military readiness military operations, that
• 13:52
  Speaker 5: would be a different situation altogether, But we don't have
• 13:56
  Speaker 5: any evidence of that.
• 13:57
  Speaker 3: What exactly do they want to start up in the Gulf.
• 14:00
  Speaker 3: Do they want to start up drilling? Is there something
• 14:03
  Speaker 3: like on the agenda that they want to do or
• 14:06
  Speaker 3: is this just a general request.
• 14:09
  Speaker 5: Well, there definitely is drilling ongoing, and there is exploration
• 14:14
  Speaker 5: for drilling projects, and now they're moving way off the
• 14:20
  Speaker 5: coast into deep ocean waters of the Gulf and talking
• 14:24
  Speaker 5: about drilling wells deeper than we've ever drilled them before,
• 14:27
  Speaker 5: and that raises the prospect of a really catastrophic spill
• 14:33
  Speaker 5: like what we had in deep Water Horizon. That spill
• 14:37
  Speaker 5: killed twenty percent of the rice as whale. That one
• 14:40
  Speaker 5: spill damn near wiped out the population. So the idea
• 14:45
  Speaker 5: that drilling can proceed without serious risk to these species
• 14:50
  Speaker 5: is just wrong. That's kind of where we are at
• 14:52
  Speaker 5: this point. There's a lot of activity, a lot of
• 14:55
  Speaker 5: ship traffic. Ship traffic is the leading cause of injury
• 15:00
  Speaker 5: and death to these whales, and we know that also
• 15:04
  Speaker 5: with the right whale off the east coast in the
• 15:06
  Speaker 5: Gulf of Maine. We know that vessel strikes is the
• 15:10
  Speaker 5: leading cause of mortality for those whales, and it's the
• 15:13
  Speaker 5: same for the Rice's whale, the sperm whale, and the
• 15:16
  Speaker 5: others in the gulf. So that's where we are. I mean,
• 15:19
  Speaker 5: it isn't as if the Endangered Species Act is stopping
• 15:22
  Speaker 5: oil and gas development, but it is supposed to require
• 15:26
  Speaker 5: at least those kinds of precautions that can reduce the
• 15:31
  Speaker 5: risk save some of these whales, give them a chance
• 15:34
  Speaker 5: to recover.
• 15:35
  Speaker 3: So pat During Trump's first term, the Interior Department made
• 15:39
  Speaker 3: changes to the way the agencies apply the Endangered Species Act,
• 15:44
  Speaker 3: but a federal judge just struck down some of those changes,
• 15:47
  Speaker 3: saying that agency had overstepped its authority. It took that
• 15:52
  Speaker 3: long to get the case through, Yes it did.
• 15:56
  Speaker 5: He'd struck down four specific aspects of what Some of
• 16:00
  Speaker 5: what the court struck down were Biden rules, by the way,
• 16:05
  Speaker 5: but the point is that in striking down the current rules,
• 16:10
  Speaker 5: the judge also noted that the Trump administration is engaged
• 16:14
  Speaker 5: in a rule making to basically do the same thing again.
• 16:18
  Speaker 5: So we haven't seen the end of the judicial review
• 16:21
  Speaker 5: of what the Trump administration is doing to the Endangered
• 16:24
  Speaker 5: Species Act in its rules. The current schedule is for
• 16:29
  Speaker 5: the Trump rules to be finalized in September, and then
• 16:33
  Speaker 5: the litigation begins all over again.
• 16:35
  Speaker 3: Pat, how is this god squad different from prior god squads?
• 16:39
  Speaker 3: You've seen them all.
• 16:41
  Speaker 5: It's different in the ways that we talked about, which
• 16:43
  Speaker 5: is that this is the first time national security has
• 16:46
  Speaker 5: been invoked, and this is the first time none of
• 16:49
  Speaker 5: the steps for exemption have been followed. That's what distinguishes
• 16:54
  Speaker 5: this particular situation. This is just heck Seth demanding an exemption,
• 16:58
  Speaker 5: that's basically what we have here, and the Committee going
• 17:02
  Speaker 5: along with his demand and saying, well, we don't really
• 17:05
  Speaker 5: have any choice. That's really not true either. The Committee
• 17:08
  Speaker 5: could have imposed certain conditions like the ones that the
• 17:12
  Speaker 5: National Oceanic and Atmospheric Administration had imposed to protect the
• 17:16
  Speaker 5: rice as well, but they weren't clear about whether those
• 17:19
  Speaker 5: protections were even going to be maintained. So that's what
• 17:23
  Speaker 5: makes this completely different from anything we've seen before.
• 17:26
  Speaker 3: And for a moment, I want to turn to arguments
• 17:29
  Speaker 3: at the Eleventh Circuit Court of appeals over the Ice
• 17:33
  Speaker 3: detention center that's been called Alligator Alcatraz. It appears that
• 17:39
  Speaker 3: the federal appeals panel is likely to rule that Ice
• 17:45
  Speaker 3: is operating the detention facility lawfully despite no environmental review process.
• 17:52
  Speaker 3: And the issue is whether it's a state site or
• 17:55
  Speaker 3: a federal site.
• 17:57
  Speaker 5: Oh yeah, this one is really kind of a narly
• 18:00
  Speaker 5: legal question. The question boils down to is there sufficient
• 18:05
  Speaker 5: federal involvement, meaning funding and control over this detention facility
• 18:14
  Speaker 5: in the Everglades. That turns on whether there's a major
• 18:18
  Speaker 5: federal action with significant environmental impact. Well, we know that
• 18:24
  Speaker 5: the construction and operation of this facility has major environmental
• 18:30
  Speaker 5: and ecological consequences. It's right next to the big Cyprus
• 18:34
  Speaker 5: National Preserve. It it's full of alligators and pythons and panthers.
• 18:39
  Speaker 5: Oh my, So yes, there's significant environmental impact from this.
• 18:44
  Speaker 5: But is there federal sufficient federal involvement is the way
• 18:48
  Speaker 5: I would put it. And it's true that the panel,
• 18:52
  Speaker 5: the three judge panel that Hurt Arguments this week, is
• 18:56
  Speaker 5: expressing real skepticism about whether there's sufficient federal involvement and
• 19:01
  Speaker 5: quote control. The state did build this facility, DeSantis built it,
• 19:07
  Speaker 5: but it's holding federal prisoners basically, you know, detainees for deportation.
• 19:13
  Speaker 5: So it's clearly serving a federal purpose, even though it
• 19:18
  Speaker 5: might day to day be under the operational control of
• 19:22
  Speaker 5: the state. Okay, the second thing is there's a lot
• 19:25
  Speaker 5: of money involved. The construction alone is over six hundred million.
• 19:29
  Speaker 5: FEMA approved a reimbursement to the state in September of
• 19:36
  Speaker 5: this year, but they haven't yet cut any checks because
• 19:41
  Speaker 5: the Department of Justice has said, don't pay the state
• 19:45
  Speaker 5: any money while this litigation is pending, because that will
• 19:49
  Speaker 5: create federal involvement. Right, So the money hasn't been paid.
• 19:53
  Speaker 5: It's been promised. The state certainly expects it, desantus expects it.
• 19:58
  Speaker 5: Trump has said, well, we'll we like what you're doing.
• 20:02
  Speaker 5: But right now they haven't cut any money. So then
• 20:04
  Speaker 5: the other question is, well, is the federal government somehow
• 20:08
  Speaker 5: involved in the operation? Like I said, it is serving
• 20:11
  Speaker 5: a federal purpose, but ICE itself is not on site
• 20:16
  Speaker 5: to the extent or any federal involvement. It's not day
• 20:19
  Speaker 5: to day operational control. So it is as I said,
• 20:23
  Speaker 5: it's a tricky legal question how much federal involvement is
• 20:28
  Speaker 5: enough to trigger the requirement for an environmental impact statement.
• 20:32
  Speaker 5: No environmental impact statement was done, despite the very significant
• 20:37
  Speaker 5: environmental impacts. But here's the irony. If this court says
• 20:41
  Speaker 5: that there's not sufficient federal involvement today and therefore the
• 20:46
  Speaker 5: injunction that the lower court had issued, and actually the
• 20:49
  Speaker 5: lower court had required the facility to be shut down,
• 20:53
  Speaker 5: you know, that's yet another question is whether the district
• 20:56
  Speaker 5: courts have that kind of power. But put that aside.
• 20:59
  Speaker 5: The point is if this panel says, we don't see
• 21:02
  Speaker 5: enough federal involvement here, so we dissolve the injunction, and
• 21:07
  Speaker 5: then the very next day, DJ lifts the block on
• 21:12
  Speaker 5: the funding and six hundred million dollars of taxpayer money
• 21:15
  Speaker 5: goes to mister DeSantis. What the hell does that look like?
• 21:19
  Speaker 5: It looks to me like they're hiding the ball on
• 21:21
  Speaker 5: NEPA review until the courts have ruled, and then they'll
• 21:25
  Speaker 5: pay the state the money. So we'll have to see
• 21:29
  Speaker 5: how this all sugars off, as we say, but right
• 21:32
  Speaker 5: now it looks like the injunction at least is definitely
• 21:36
  Speaker 5: going to be lifted, permanently lifted. It was already temporarily lifted.
• 21:40
  Speaker 3: It's always so great to talk to you, Pat, I
• 21:42
  Speaker 3: appreciate your time. That's Professor Pat Parento of the Vermont
• 21:46
  Speaker 3: Law and Graduate School. President Trump has unleashed a flurry
• 21:51
  Speaker 3: of social media posts threatening around, but his chilling post
• 21:55
  Speaker 3: on Tuesday, pressing around to make an agreement before his
• 21:59
  Speaker 3: eight pm deadline or quote a whole civilization will die tonight,
• 22:05
  Speaker 3: drew the most criticism and alarm. Even Pope Leo weighed in.
• 22:09
  Speaker 3: Trump has been making similar threats, for example, warning he
• 22:13
  Speaker 3: would send Iran back to the Stone Age, and there
• 22:17
  Speaker 3: was this at a news conference on Monday.
• 22:19
  Speaker 6: We have a plan, because of the power of our military,
• 22:23
  Speaker 6: where every bridge in Iran will be decimated by twelve
• 22:29
  Speaker 6: o'clock tomorrow night, where every power plant in Iran will
• 22:34
  Speaker 6: be out of business, burning, exploding, and never to be
• 22:39
  Speaker 6: used again. I mean complete demolition.
• 22:41
  Speaker 3: Trump backed off and announced a two week extension, but
• 22:45
  Speaker 3: his unrestrained statements have raised concerns and questions about whether
• 22:50
  Speaker 3: the Attaxi's threatened would amount to war crimes. Here's Democratic
• 22:55
  Speaker 3: Senator Peter Welch of Vermont.
• 22:58
  Speaker 7: I think the President is really unhinged. You know, the
• 23:02
  Speaker 7: iatolis or the problem the people of Iron are not
• 23:05
  Speaker 7: and when the president is posting about destroying an entire civilization,
• 23:10
  Speaker 7: that is unhinged, and if he was really serious about
• 23:14
  Speaker 7: doing that, that's a war crime.
• 23:15
  Speaker 3: Joining me is Joshua Castenberg, a professor at the University
• 23:19
  Speaker 3: of New Mexico Law School and a former judge and
• 23:22
  Speaker 3: lawyer in the US Air Force. Josh do you think
• 23:25
  Speaker 3: these constitute threats to commit a war crime?
• 23:29
  Speaker 1: It sets the stage for a war crime. And I'm
• 23:32
  Speaker 1: not appealing to some area day international law concept, but
• 23:38
  Speaker 1: rather a real world set of laws that the United
• 23:40
  Speaker 1: States was instrumental in creating after World War Two. And
• 23:45
  Speaker 1: I point to nineteen forty four nineteen forty five, when
• 23:49
  Speaker 1: the United States Navy and the United States Military under
• 23:53
  Speaker 1: General MacArthur and Admiral Halsey went to retake the Philippines.
• 23:58
  Speaker 1: The commanding general the Japanese forces and the Philippines was
• 24:01
  Speaker 1: General Yamashta. There was another general similarly in another theater,
• 24:06
  Speaker 1: named General Homa. Neither General Yamashta or General Homa ordered
• 24:11
  Speaker 1: their troops to kill anybody.
• 24:13
  Speaker 5: But they let their troops run out of.
• 24:15
  Speaker 1: Control, and in the Philippines, tens of thousands, if not
• 24:19
  Speaker 1: over one hundred thousand innocent Philippine, non belligerent, non combatant
• 24:24
  Speaker 1: people were massacred by Japanese forces. Yamashta. His argument when
• 24:30
  Speaker 1: he was facing his trial in a court convened by
• 24:33
  Speaker 1: General Douglas MacArthur, was I didn't have the ability to
• 24:38
  Speaker 1: stop that from happening, and therefore I can't be held accountable.
• 24:42
  Speaker 1: The counter to that was, and this is a principle
• 24:45
  Speaker 1: now of international law, was that you have a duty
• 24:48
  Speaker 1: to not create the conditions under which innocent people are killed,
• 24:52
  Speaker 1: and if you do create the conditions, you have a
• 24:55
  Speaker 1: duty to stop that. And Yamasha appealed all the way
• 24:58
  Speaker 1: to the United States Supreme Court, which did not grant
• 25:01
  Speaker 1: him a hearing at all, and both he and General
• 25:04
  Speaker 1: Hama have been executed since that time. That principle of
• 25:08
  Speaker 1: law has been used to prosecute individuals like radio personalities
• 25:14
  Speaker 1: in the Rwandan genocide who simply encouraged others to kill
• 25:19
  Speaker 1: the minority population there. So President Trump is the commander
• 25:23
  Speaker 1: in chief of all military forces. By saying we'll destroy
• 25:27
  Speaker 1: your civilization, is not only causing a war crime, by
• 25:31
  Speaker 1: encouraging it to happen. You have to have the vehicles
• 25:34
  Speaker 1: in place, to stop it from happening. Now we entered
• 25:37
  Speaker 1: into a ceasefire, so we don't know if that would
• 25:41
  Speaker 1: have occurred or not. But what we do know is
• 25:44
  Speaker 1: that threat to annihilate an entire people with a rich
• 25:48
  Speaker 1: civilization that goes back to pre recorded history is a
• 25:53
  Speaker 1: war crime.
• 25:54
  Speaker 3: In theory, war crimes could be prosecuted in the US,
• 25:58
  Speaker 3: but any punished and of Trump is a non starter,
• 26:02
  Speaker 3: especially given the broad interpretations of presidential immunity by the
• 26:06
  Speaker 3: Supreme Court.
• 26:07
  Speaker 1: I won't go as far as saying this war was
• 26:09
  Speaker 1: brought to you by the Supreme Court, but I will
• 26:12
  Speaker 1: go as far as saying the Supreme Court has enabled
• 26:15
  Speaker 1: the type of lawlessness, including going to war without even
• 26:19
  Speaker 1: going to Congress first and asking for fiscal approval, engaging
• 26:23
  Speaker 1: in the random firing of generals and admirals who might
• 26:28
  Speaker 1: serve as a constraint to lawlessness. This has been enabled
• 26:32
  Speaker 1: by Trump versus United States, and in that vein. If
• 26:36
  Speaker 1: we think about how we can have a lawless military action,
• 26:41
  Speaker 1: it begins with that decision in twenty twenty four. It
• 26:45
  Speaker 1: also includes the president's broad fully constitutional authority to pardon individuals.
• 26:52
  Speaker 1: So now we are in an environment where a president
• 26:55
  Speaker 1: can violate the rights of citizens in the US, violate
• 27:00
  Speaker 1: you know, norms of international law, outright treaty agreements that
• 27:05
  Speaker 1: result in the deaths of even you know, innocent school children,
• 27:08
  Speaker 1: and no US jurisdiction can touch him. And with his
• 27:12
  Speaker 1: pardon authority, it's unlikely that a US jurisdiction would touch
• 27:16
  Speaker 1: any of the individuals operating within his chain of command.
• 27:20
  Speaker 1: What I would say is, when this is all over,
• 27:22
  Speaker 1: those individuals probably ought to be content with remaining in
• 27:26
  Speaker 1: the continental US and not taking a trip to another
• 27:29
  Speaker 1: country for a vacation or speaking engagement. But yeah, we
• 27:34
  Speaker 1: now have a military structure that will enable war crimes.
• 27:38
  Speaker 1: And by the way, a number of generals and admirals
• 27:41
  Speaker 1: warn the Supreme Court this in a Friend of the
• 27:44
  Speaker 1: Court brief during the arguments of Trump versus United States,
• 27:49
  Speaker 1: So this is no surprise to those people in the know.
• 27:52
  Speaker 3: Congressman Ted Lew Democrat from California, called on the Pentagon
• 27:57
  Speaker 3: not to obey any orders to eradicate a civilization. Quote,
• 28:02
  Speaker 3: if you commit war crimes, the next administration will prosecute you.
• 28:07
  Speaker 3: But as you said, Trump could just give pardons to anyone.
• 28:11
  Speaker 1: Yeah, So tedlu Is a former officer, and you know,
• 28:16
  Speaker 1: I agree with him one hundred percent on individuals having
• 28:20
  Speaker 1: a duty not to follow on constitutional orders. But the
• 28:24
  Speaker 1: comment about a future administration prosecuting them as an empty,
• 28:28
  Speaker 1: hollow comment for two reasons. One is that the pardon
• 28:33
  Speaker 1: authority of the president will protect them, and the other
• 28:36
  Speaker 1: is that it just hasn't happened in our history. You know,
• 28:40
  Speaker 1: people will go back to say, after the Civil War,
• 28:43
  Speaker 1: Lincoln wanted amnesty, Johnson gave amnesty. You know, you have
• 28:46
  Speaker 1: the post Vietnam War amnesty program that was set up
• 28:50
  Speaker 1: first by Gerald Ford and then more fully enacted by
• 28:52
  Speaker 1: Jimmy Carter in his first days in office. Although those
• 28:55
  Speaker 1: weren't war crimes that they were giving amnesty to. It's
• 28:59
  Speaker 1: just Americans are not particularly good at holding individuals to
• 29:05
  Speaker 1: account unless it happens very quickly with war crimes prosecution.
• 29:10
  Speaker 3: Let's talk theoretically about someone in the military who gets
• 29:14
  Speaker 3: an order that he or she thinks is a war crime.
• 29:17
  Speaker 3: I mean, do you think it's raising ethical problems in
• 29:20
  Speaker 3: the military even now?
• 29:22
  Speaker 1: Yeah, I do. I mean I'm not a member of
• 29:26
  Speaker 1: you know, like the GI Forum. I sometimes talk to
• 29:29
  Speaker 1: individuals and the Orders Project and other organizations that will
• 29:34
  Speaker 1: give military members legal advice. I'm not a member of
• 29:37
  Speaker 1: any of those, but I do hear from them, and
• 29:39
  Speaker 1: I do read the press like you do, and it's
• 29:41
  Speaker 1: very clear. All you have to do is look at
• 29:44
  Speaker 1: the outgoing Army Chief of Staff's resignation letter to know
• 29:48
  Speaker 1: that there's a tremendous concern going on in the ranks.
• 29:51
  Speaker 1: But this is important for the public to understand. When
• 29:55
  Speaker 1: you're a citizen a civilian and you are arrested in
• 30:00
  Speaker 1: charge with a crime, the burden of proof is always
• 30:04
  Speaker 1: on the prosecution. If you raise a defense like self
• 30:08
  Speaker 1: defense or Alabie wasn't there. The duty is on the
• 30:12
  Speaker 1: prosecution to prove that you were there or that you
• 30:15
  Speaker 1: didn't work in self defense, and that is an important
• 30:18
  Speaker 1: part of our constitutional rights. But military members are different
• 30:23
  Speaker 1: in the defense of refusing to follow a lawful order.
• 30:27
  Speaker 1: If I'm representing a young soldier who's given an unlawful
• 30:31
  Speaker 1: order and says, no, I'm not going to do it,
• 30:33
  Speaker 1: the burden of proof is on us to prove that
• 30:36
  Speaker 1: the order was unlawful and not the other way around,
• 30:39
  Speaker 1: and that makes military law unique. It's one of those
• 30:43
  Speaker 1: areas that Justice Scalia once said, it's not possible to
• 30:47
  Speaker 1: use military law norms and graph them on to constitutional
• 30:52
  Speaker 1: due process law in the criminal arena, because military law
• 30:56
  Speaker 1: is so unique it has aspects in it that would
• 30:59
  Speaker 1: be intolerable in a constitutional sense to apply to civilians.
• 31:04
  Speaker 1: And the reason I bring that up is it highlights
• 31:08
  Speaker 1: that our soldier, sailors, marines, airmen, coastguardsmen are straight jacketed
• 31:15
  Speaker 1: under our present conditions that include a Secretary of Defense
• 31:20
  Speaker 1: and a president at least articulating ideas that, if they
• 31:24
  Speaker 1: were to be put into effect, are inherently immoral, but
• 31:28
  Speaker 1: even more troubling, inherently unlawful.
• 31:32
  Speaker 3: So the decisions on which targets to hit, I mean,
• 31:36
  Speaker 3: who was making those decisions?
• 31:38
  Speaker 1: So that's a great question you ask. And when I
• 31:41
  Speaker 1: was on active duty, there was a very quick, but
• 31:45
  Speaker 1: very methodical and careful stepstone approach where tactical level commanders
• 31:51
  Speaker 1: and also strategic organizations like the CIA or the DA
• 31:56
  Speaker 1: would say, this target's important, that target's important, and then
• 32:00
  Speaker 1: the targeting would be done very quickly through something known
• 32:03
  Speaker 1: as a combined operation you know, Air Operation Center, which
• 32:06
  Speaker 1: involved the Army, the Air Force, the Navy as well
• 32:09
  Speaker 1: as our allies, and those targets would then be selected
• 32:12
  Speaker 1: and there would be some real, no kidding, attempt to
• 32:16
  Speaker 1: make sure that those targets were viable under the international
• 32:21
  Speaker 1: law of arm conflict, under international humanitarian law, or that
• 32:25
  Speaker 1: collateral damage estimates would be employed, so that maybe a
• 32:29
  Speaker 1: target would be lawful, maybe a chemical weapons factory, but
• 32:33
  Speaker 1: if it was near a elementary school, we would say,
• 32:36
  Speaker 1: you can't do it. It's wrong that they put it there,
• 32:39
  Speaker 1: but you can't do it. There would be very quick analysis. Today,
• 32:43
  Speaker 1: that kind of analysis, I don't think it's being done,
• 32:46
  Speaker 1: and I think a lot of what is happening now
• 32:50
  Speaker 1: is artificial intelligence being used. That's been attempted to explain
• 32:55
  Speaker 1: why the United States bombed a school. You know, heg
• 32:58
  Speaker 1: Seth promised to unleash the dogs of war without interfering lawyers,
• 33:05
  Speaker 1: and we would be warriors again, and he did so
• 33:08
  Speaker 1: in a very crusader like medieval mentality. So I think
• 33:13
  Speaker 1: you take a look at all that rhetoric, and you
• 33:16
  Speaker 1: take a look at Trump's promise to bomb to the
• 33:18
  Speaker 1: Stone Ages, and there is far less concern at the
• 33:22
  Speaker 1: upper levels today in this particularly in the civilian levels,
• 33:26
  Speaker 1: with obedience to international law and a desire to protect
• 33:31
  Speaker 1: non combatants than there was only ten years ago.
• 33:35
  Speaker 3: Coming up next, have the bounds of legality and military
• 33:38
  Speaker 3: conflict changed? This is Bloomberg.
• 33:44
  Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
• 33:52
  Speaker 3: Do President Trump's threats to destroy Iranian civilization pose an
• 33:57
  Speaker 3: ethical quandary for the US military, whose officers would carry
• 34:02
  Speaker 3: out his orders. Trump would be unlikely to face any
• 34:06
  Speaker 3: punishment for such actions, yet military officers might be at
• 34:10
  Speaker 3: greater risk, or at least perceive themselves to be, given
• 34:14
  Speaker 3: that attacking civilian targets could cross a legal red line.
• 34:19
  Speaker 3: The question could be especially acute for officers responsible for
• 34:23
  Speaker 3: selecting targets as part of Trump's stepped up war campaign.
• 34:28
  Speaker 3: I've been talking to Josh Casterberg, a professor at the
• 34:31
  Speaker 3: University of New Mexico Law.
• 34:33
  Speaker 1: School, years ago.
• 34:35
  Speaker 3: Josh, the rules can be murky, and you often hear
• 34:39
  Speaker 3: that some of these strikes, for example, against power plants,
• 34:43
  Speaker 3: can be legitimate targets if they feed military installations. And
• 34:48
  Speaker 3: there's also the possibility of military being embedded in civilian population.
• 34:53
  Speaker 3: So where do you draw the line?
• 34:54
  Speaker 1: Well, I think even if it's attempted. I think what
• 34:57
  Speaker 1: really is going on is the balance of caution has
• 35:01
  Speaker 1: shifted to in caution, meaning that if a target has
• 35:06
  Speaker 1: some and I stress that some relationship to Iran's capacity
• 35:11
  Speaker 1: to wage war, then in their mind then it's a
• 35:15
  Speaker 1: fair game, regardless of what the collateral damage is. Under
• 35:19
  Speaker 1: George W. Bush and I know, you know, people have
• 35:22
  Speaker 1: a lot of strong opinions about the administration. At least
• 35:25
  Speaker 1: we had quite a bit of care in how targeting
• 35:30
  Speaker 1: was done in terms of avoiding collateral damage, and collateral
• 35:35
  Speaker 1: damage meant kids, it meant non combatants, and meant old
• 35:39
  Speaker 1: age homes and schools and things like that. But given
• 35:43
  Speaker 1: the rhetoric that's out there right now, it doesn't seem
• 35:46
  Speaker 1: to me to be the case.
• 35:48
  Speaker 3: Let's say there are ground forces. The soldier on the
• 35:51
  Speaker 3: ground isn't considering the legality of an order, right, They're
• 35:56
  Speaker 3: just following orders.
• 35:58
  Speaker 1: Well, you're trying to fight a conflict didn't survive, I mean,
• 36:01
  Speaker 1: you know, the quickness that the pace of a battle
• 36:04
  Speaker 1: is in or an operation you know, going up to
• 36:07
  Speaker 1: Tigris Euphrate's Valley like we saw, you know, with the
• 36:10
  Speaker 1: invasion of Iraq. As you assume when you have boots
• 36:14
  Speaker 1: on the ground, like you assume if you're in an
• 36:17
  Speaker 1: F fifteen e strike eagle, that the targeting that's being
• 36:21
  Speaker 1: done or the orders that are being given to you
• 36:24
  Speaker 1: are lawful. You assume that because you don't have the
• 36:27
  Speaker 1: time to second guests, your lieutenant's command, your his or
• 36:32
  Speaker 1: her captain's command, their colonel's command, you assume all of
• 36:35
  Speaker 1: that was done. And you always have a right to
• 36:38
  Speaker 1: fire back if you're being fired upon. So, no, the
• 36:42
  Speaker 1: danger for soldiers who have boots on the ground, going
• 36:46
  Speaker 1: back to the Vietnam War, was not about did I
• 36:49
  Speaker 1: shoot an innocent person or not, because in the heat
• 36:52
  Speaker 1: of a firefight, you don't know the issue there was.
• 36:56
  Speaker 1: You know, once my forces occupied a village, once we
• 36:59
  Speaker 1: captured civilian or even people who are shooting at us,
• 37:02
  Speaker 1: are we now safeguarding them as we're supposed to do
• 37:06
  Speaker 1: in regard to you know, international law and our uniform
• 37:10
  Speaker 1: Code of Military Justice. But this reckless rhetoric that is
• 37:15
  Speaker 1: going on right now makes me think that just about
• 37:19
  Speaker 1: any act of malfeasans or violation of law will be tolerated.
• 37:25
  Speaker 3: Apparently there's been a general loosening of legal guard rails
• 37:31
  Speaker 3: in the military. Has hag Seth gotten rid of the
• 37:34
  Speaker 3: judge advocate generals.
• 37:36
  Speaker 1: Yeah, that's what they did at the very beginning of
• 37:38
  Speaker 1: their administration. I mean, I look at the Air Force,
• 37:41
  Speaker 1: for example, Rebecca Vernon, an incredibly talented deputy judge advocate general.
• 37:47
  Speaker 1: I'm biased towards her because I serve with her, you know,
• 37:50
  Speaker 1: years ago, and I saw the tremendous talent that she had.
• 37:54
  Speaker 1: She was going to rise to be the judge advocate general,
• 37:56
  Speaker 1: the judge advocate general, Lieutenant Colonel Chuck Plummer. It's life,
• 38:01
  Speaker 1: you know, studying the importance of the law of armed
• 38:03
  Speaker 1: conflict and international law. A similar thing happened in the
• 38:07
  Speaker 1: Navy and in the Army, and they got rid of
• 38:09
  Speaker 1: these individuals, and they replaced them, oddly enough, not with
• 38:14
  Speaker 1: career judge advocates, but with National Guard judge advocates. And
• 38:19
  Speaker 1: they even had to bend the law to get them in.
• 38:22
  Speaker 1: And it shows more of a political allegiance than a
• 38:26
  Speaker 1: constitutional allegiance to me. And so you know, I gave
• 38:30
  Speaker 1: a brief into the new Mexico State Bar a year
• 38:33
  Speaker 1: ago and I said, watch this, watch what happens. It's
• 38:37
  Speaker 1: not that I'm always right, and I'm no smarter or
• 38:40
  Speaker 1: dumber than the next person in the room. But if
• 38:43
  Speaker 1: you remove the judge advocates general and the way he did,
• 38:47
  Speaker 1: and senior leadership who were women or persons of color,
• 38:51
  Speaker 1: this is exactly what you get right now. You get
• 38:54
  Speaker 1: no pushback, and you create a military that's loyal to
• 38:58
  Speaker 1: your vision of war than it is necessarily to the
• 39:02
  Speaker 1: legal obligations. And for those people who think it's Namby Pamby,
• 39:06
  Speaker 1: I'll say this. If you want the Iranians to come
• 39:09
  Speaker 1: around one day and say, you know, we're going to
• 39:13
  Speaker 1: throw off our leadership, first of all, you shouldn't go
• 39:15
  Speaker 1: to war in the way we did. But if you do,
• 39:17
  Speaker 1: you fight it with a complete adherence to the Geneva
• 39:21
  Speaker 1: Conventions and the rules that came after. You don't do
• 39:24
  Speaker 1: what we're doing right now, which we'll create a generation
• 39:28
  Speaker 1: or two of haters towards the United States. And if
• 39:32
  Speaker 1: you don't believe me, look at the attitudes of people
• 39:35
  Speaker 1: who live in the country surrounding Israel and you'll get
• 39:38
  Speaker 1: that same effect, and you will never have peace.
• 39:42
  Speaker 3: A lot of problems and a lot of questions. Thanks
• 39:45
  Speaker 3: so much, Josh. That's Professor Joshua Castenberg of the University
• 39:49
  Speaker 3: of New Mexico Law School. And that's it for this
• 39:52
  Speaker 3: edition of The Bloomberg Law Show. Remember you can always
• 39:55
  Speaker 3: get the latest legal news on our Bloomberg Law Podcast.
• 39:58
  Speaker 3: You can find them on Apple podcast, Spotify, and at
• 40:01
  Speaker 3: www dot bloomberg dot com, slash podcast Slash Law, And
• 40:06
  Speaker 3: remember to tune into The Bloomberg Law Show every weeknight
• 40:09
  Speaker 3: at ten pm Wall Street Time. I'm June Grosso and
• 40:13
  Speaker 3: you're listening to Bloomberg