Trump and Hegseth are gutting the military’s protection of civilians in combat

The first week of Trump’s second term was a bad one for the values of Abraham Lincoln.

Much has been written about the Trump administration overturning policies designed to carry forward Lincoln’s 1863 Emancipation Proclamation. But equally ominous was the Senate’s razor-thin confirmation of Pete Hegseth as secretary of Defense, which threatens a similarly settled sets of principles established by Lincoln in 1863.

In the depths of the Civil War, Lincoln ordered the American military to follow rules in combat to protect civilians against needless exposure to maiming or death. A retreat from concern about the fate of civilians in combat is especially pernicious in light of the new administration’s enthusiasm for artificial intelligence. The dramatic evolution of AI in military operations — sometimes called “lethal autonomous weapons systems” — requires even greater scrutiny in order to safeguard the innocent.

Lincoln, amidst the carnage of the Civil War, recognized that values worth fighting for cannot be divorced from values followed in the fighting itself. In 1863, Lincoln issued the “Lieber Code,” which recognized the obligation to protect civilian noncombatants.

The Lieber Code became one of the foundations of humanity’s continuing commitment to trying to “civilize” war, an inherently bloody business. It remains a fundamental ingredient in the law of armed conflict to this day.

As the Department of Defense’s Manual of the Law of War begins, the “law of war is part of who were are.” For generations, one central principle has remained in understanding “who we are”: military objectives are not in themselves an excuse to ignore the risk of injuring or killing noncombatants, and tactical decisions must be made in light of these concerns. As explained in the 2023 Pentagon directions on “Civilian Harm Mitigation,” rules to protect civilians in combat “reflect U.S. and professional military values, including the importance of protecting and respecting human life and treating civilians with dignity and respect.”

By contrast, Hegseth promised that “warfighting and lethality” (along with combat readiness) “will be our only focus.” This is despite military leaders recognizing in the 2023 directions that the “protection of civilians and civilian objects is fundamentally consistent with the effective, efficient, and decisive use of force.”

These principles have been inculcated in the American military officer corps for generations. But Hegseth, as a former mid-level National Guard officer, never bought in. Nor has the new commander-in-chief, who avoided any military service.

When Hegseth was a Fox News host, he advocated unshackling American troops from the law of armed conflict. Using his platform, Hegseth was influential in convincing Trump to pardon soldiers convicted of crimes that the professional military establishment considered intolerable, including war crimes.

Hegseth has made plain that his goal is to enhance the unbridled “lethality” of American military forces without handcuffs imposed by the law of armed conflict, complaining repeatedly about the duty to follow rules imposed by “lawyers” when his goal is to kill as effectively as possible.

Hegseth thinks that “international law and human rights are a hindrance to U.S. warfighters,” in the words of the Washington Post. He is unabashed in rejecting traditional American military policies on protection of civilians, de c laring that he has “thought very deeply about the balance between legality and lethality,” but his goal is “ensuring that the men and women on the frontlines have the opportunity to destroy ... the enemy, and that lawyers aren’t the ones getting in the way.”

A little noticed development last week makes clear Hegseth’s desire for indiscriminate lethality as military policy. The Defense Department has had an office, required by a 2023 congressional statute, expressly charged with enhancing ways to reconcile military necessity with the commitment to protecting noncombatants to the extent possible. In one of the new administration’s late-night orders, that office was quietly suffocated.

This is hardly the time to abandon concern for civilians caught up in combat, because the development of AI weapons threatens even greater danger from literally mindless slaughter.

As early as 2017, the Vatican Mission to the U.S. headquarters in Geneva highlighted the dangers of divorcing human judgment from the operation of autonomous weapons. Machines operating on the basis of computer code necessarily lack the human capacity for moral judgment about when, where and why to take a human life.

Since that time, AI capabilities have increased by orders of magnitude. Trump has aligned his administration with wealthy tech magnates who see only benefit from unleashing the maximum possibilities of AI.

As anyone who has used AI knows, the risk of error — or “hallucination” — is palpable. When an autonomous weapon makes a mistake, the consequences can be tragic for innocent people, all without the constraint of human conscience making the crucial risk assessment.

Recent changes in Israeli military doctrine illustrate the problem. Israel’s dependence on AI has been viewed as a major cause of the disproportionate amount of civilian death and destruction in Gaza. For example, Israel’s AI weapons use demonstrably unreliable “facial recognition” for deciding automatically at whom to fire a missile or on whom to drop a bomb, even in a crowd.

After Hamas's attack on Israel of Oct. 7, 2023, the Israeli military changed the algorithms for its autonomous drones to allow for a greater degree of error in identifying and killing pre-programmed “targets.” But as one analyst observed, “AI systems have built-in inaccuracies that make them inappropriate for a life-and-death context such as war,” no matter how efficiently lethal.

Under the Biden administration, with congressional encouragement and oversight, the Pentagon was closely monitoring the development and use of lethal autonomous weapons, “ensuring that commanders and operators can exercise appropriate levels of human judgment over the use of force.” These principles were intended to recognize the limitations in any system that values distinguishing legitimate targets from innocent bystanders. Now it seems virtually certain that these fine distinctions will be brushed aside in the ruthless quest for unconstrained lethality.

On this front, too, America will have lost something vital in our national character. With Congress in Trump’s thrall, there is no reason to think that the legislative branch will protect this moral value. What a shame.

Philip Allen Lacovara formerly served as U.S. deputy solicitor general for criminal and national security matters, counsel to the Watergate Special Prosecutor and president of the District of Columbia Bar.

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