When Law Becomes Optional: The Dangerous Trajectory of Presidential Power

The Steady State | By Steven Cash November 30, 2025

Earlier this month, six Members of Congress — all with deep national-security experience and long records of oversight — released what should have been an entirely unremarkable video. Their message was simple: the United States military follows the law, and service members are obligated to refuse unlawful orders.

This principle is not radical. It is not partisan. It is not new. It traces an unbroken line from the Nuremberg trials to the present day — a hard-won lesson of the 20th century, codified throughout U.S. military law, reinforced in officer training, and woven into the culture of every command. It is among the core reasons the American military is regarded globally as professional, lawful, and trusted — in stark contrast to the armed forces of authoritarian regimes such as Russia.

Yet the Administration’s response — and that of its most vocal supporters — was chilling. Rather than affirm a foundational legal norm, they rejected it outright. In the most extreme versions, they amplified Pete Hegseth’s astonishing assertion that he and the President possess “absolute and complete authority.” One bizarre strand of criticism, wholly unfounded in logic or law, claimed that in the absence of a specific unlawful order, it was somehow improper — even “treasonous” — to restate the principle that unlawful orders cannot be followed.

This inversion is not rhetorical carelessness. It is the point.

And then, just days later, came the revelation that U.S. forces in the Caribbean were allegedly ordered to kill the survivors of the first Venezuelan boat attack.

The Line Between Law and Murder

For weeks, legal scholars have argued that the Administration’s maritime attacks were fundamentally unlawful — extrajudicial uses of lethal force against individuals with whom the United States is not, in any meaningful sense, “at war.” Even defenders of the operation relied on a strained theory of an open-ended armed conflict with “drug cartels,” a term the Administration declines to define and cannot legally sustain.

But the so-called “no quarter” directive — the alleged order to execute unarmed, shipwrecked survivors — obliterates even that contorted rationale.

Under every body of law that governs the United States — U.S. statute, the Uniform Code of Military Justice (UCMJ), customary international law, the Geneva Conventions, the Law of Armed Conflict — killing the survivors of a sunken vessel is murder. Full stop. It is not a gray area. It is not debatable. It is manifestly illegal.

No serious military lawyer, commander, or professional national-security officer disputes this.

The question, then, is no longer whether the action was lawful. It was not.

The real question — the one Americans must confront — is what it means that a President of the United States claimed the authority to issue such an order, and what it means that his advisors celebrated it as evidence of “strength.”

The principle at stake — that unlawful orders must not be obeyed — is not theoretical. It was forged in the aftermath of global catastrophe. After World War II, the Nuremberg Tribunals confronted the world’s demand for accountability: What is an individual’s responsibility when commanded to commit an atrocity? The answer, articulated by American prosecutors and judges, established what is now a cornerstone of modern democratic governance: “I was just following orders” is not a defense.

In the decades that followed, the United States embedded this principle into its military and national-security structures. Even the darkest chapters in U.S. history — My Lai, Abu Ghraib — ultimately reaffirmed the norm that America investigates, prosecutes, and condemns unlawful violence committed under color of authority.

This is why the American military is unlike Russia’s. This is why our alliances endure. This is why partners around the world trust our forces. And it is why the Administration’s attack on this principle is not just wrong — it is dangerous.

To understand the gravity of what has occurred — from the Members’ video to the Venezuela “no quarter” order — it is important to be clear about what constitutes an unlawful order. An order is unlawful if it:

1. Violates U.S. statutory law (including the UCMJ and federal criminal statutes).

2. Contravenes constitutional protections, including due process and prohibitions on extrajudicial killing.

3. Breaches the Geneva Conventions, including protections for surrendering or shipwrecked individuals.

4. Is manifestly illegal — so clearly unlawful that no reasonable service member could fail to recognize its illegality.

By all four standards, an order to execute survivors of a sunken vessel is illegal. No declared war exists. No legal authority permits such action. No theory of self-defense applies. Those who argue that the President possesses “unlimited authority” are not describing any lawful power granted to an American chief executive. They are describing the prerogatives of monarchs, czars, and emperors — rulers unconstrained by law, accountable only to themselves.

This is exactly the kind of power the United States fought to prevent in crafting the post-World War II legal order. It is exactly the kind of power the U.S. Constitution distributes, divides, and limits. And it is exactly the kind of power authoritarian leaders eventually wield against their own people.

The convergence of these events — the Members’ video, the Administration’s denunciation of lawful principle, and the exposure of the Venezuela “no quarter” order — demands more than concern. It requires a national response commensurate with the danger.

Immediate hearings are essential. Congress must compel testimony, establish facts, and publicly evaluate the legality of the order. Silence is not prudence. Silence is abdication. Retired generals, admirals, JAGs, former civilian officials, and professional military educators must speak plainly – and that is why The Steady State is publishing this essay. The military is bound by law. Unlawful orders must be refused.

This is not about Venezuelan waters or distant operations. It is about whether the President of the United States remains bound by law. Once a President asserts the right to kill without legal constraint abroad, the distinction between foreign and domestic becomes dangerously thin, and the President becomes more a King than a part of a Constitutional structure.

Service members, federal employees, and elected officials swear an oath to the Constitution — not to a President. That oath is the last defensive wall against autocratic power. The normalization of absolute authority must be rejected. Hegseth’s claim that the President’s authority is “absolute” has no place in a constitutional republic. It is the vocabulary of empire, not democracy.

The United States now confronts a question that generations believed settled: Is the President bound by law, or is presidential will its own justification?

If we fail to answer this clearly and collectively, the guardrails we assumed were permanent will erode faster than anyone imagines. We are not witnessing a distant tragedy. We are witnessing a blueprint. This is how democracies decay: first in the name of strength, then in the name of necessity, and finally in the name of absolute authority. Americans at every level — citizens, service members, Members of Congress, and leaders across the national-security community — must defend the line our predecessors drew at such terrible cost: No one, not even the President, is above the law.

Steven A. Cash served as a prosecutor in the Manhattan District Attorney’s office before joining the CIA in 1994 as Assistant General counsel and subsequently serving as an intelligence officer in the Directorate of Operations. In 2001 he joined the Senate Select committee on Intelligence as Counsel and designee-staffer to Senator Diane Feinstein). He later served as a senior staffer in the House Select Committee on Homeland Security, the Department of Energy, the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security and the Department of Energy. In the private sector he has advised on national security, counterintelligence, and technology policy and served on the Biological Sciences Experts Group under the Director of National Intelligence. Mr. Cash is currently the Executive Director of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 360 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense and Department of Homeland Security. Drawing on deep expertise across national security disciplines including intelligence, diplomacy, military affairs and law, we advocate for constitutional democracy, the rule of law and the preservation of America’s national security institutions.