# 'God Squad' Puts Endangered Whales at Risk

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 9 Apr 2026, 40 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/e5ed7f0c-68f1-47f2-9450-b42701809801/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Environmental law expert Pat Parenteau, a professor at the Vermont Law & Graduate School, discusses the so-called “God Squad” exempting Gulf of Mexico oil and gas development from the Endangered Species Act, putting endangered whales and other species at risk. Then Joshua Kastenberg, a professor at the University of New Mexico Law School and a former judge and lawyer in the US Air Force, discusses whether Trump’s Iran threats raise war crimes concerns. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[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.
[1:18] 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,
[2:52] Speaker 5: which has now come to be known as the God Squad.
[2:56] 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,
[4:05] 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.
[4:17] 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.
[5:00] Speaker 5: There are only fifty or so of these whales left,
[5:04] 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
[5:21] 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,
[5:37] 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?
[5:48] 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.
[6:04] Speaker 5: Right And the point is that Congress never intended or
[6:08] 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
[7:03] Speaker 5: the Gulf.
[7:04] Speaker 3: Pat Why do you think they decided to do this
[7:08] Speaker 3: at this point.
[7:09] 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
[7:38] 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.
[7:57] 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
[8:41] Speaker 5: on all of the aspects of the Endangered Species Act,
[8:44] 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
[9:07] 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
[9:44] 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,
[10:12] 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.
[11:09] Speaker 5: So that's kind of the context of what we're talking about.
[11:13] Speaker 5: Very modest steps to protect these highly endangered, critically endangered species,
[11:20] 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.
[11:37] 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

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