WaPo (“Hegseth order on first Caribbean boat strike, officials say: Kill them all“):
The longer the U.S. surveillance aircraft followed the boat, the more confident intelligence analysts watching from command centers became that the 11 people on board were ferrying drugs.
Defense Secretary Pete Hegseth gave a spoken directive, according to two people with direct knowledge of the operation. “The order was to kill everybody,” one of them said.
A missile screamed off the Trinidad coast, striking the vessel and igniting a blaze from bow to stern. For minutes, commanders watched the boat burning on a live drone feed. As the smoke cleared, they got a jolt: Two survivors were clinging to the smoldering wreck.
The Special Operations commander overseeing the Sept. 2 attack — the opening salvo in the Trump administration’s war on suspected drug traffickers in the Western Hemisphere — ordered a second strike to comply with Hegseth’s instructions, two people familiar with the matter said. The two men were blown apart in the water.
Hegseth’s order, which has not been previously reported, adds another dimension to the campaign against suspected drug traffickers. Some current and former U.S. officials and law-of-war experts have said that the Pentagon’s lethal campaign — which has killed more than 80 people to date — is unlawful and may expose those most directly involved to future prosecution.
The alleged traffickers pose no imminent threat of attack against the United States and are not, as the Trump administration has tried to argue, in an “armed conflict” with the U.S., these officials and experts say. Because there is no legitimate war between the two sides, killing any of the men in the boats “amounts to murder,” said Todd Huntley, a former military lawyer who advised Special Operations forces for seven years at the height of the U.S. counterterrorism campaign.
Even if the U.S. were at war with the traffickers, an order to kill all the boat’s occupants if they were no longer able to fight “would in essence be an order to show no quarter, which would be a war crime,” said Huntley, now director of the national security law program at Georgetown Law.
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The elite counterterror group SEAL Team 6 led the attack, according to four people with direct knowledge of the matter, who spoke on the condition of anonymity because of the ongoing sensitive operations.
The commander overseeing the operation from Fort Bragg in North Carolina, Adm. Frank M. “Mitch” Bradley, told people on the secure conference call that the survivors were still legitimate targets because they could theoretically call other traffickers to retrieve them and their cargo, according to two people. He ordered the second strike to fulfill Hegseth’s directive that everyone must be killed.
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In two social media posts Friday, after the publication of this report, Hegseth appeared to acknowledge the decision, writing, “these highly effective strikes are designed to be ‘lethal, kinetic strikes,’” and defended the operations as “lawful under both U.S. and international law.”
In a separate post on X from his personal account, he wrote: “We have only just begun to kill narco-terrorists.”
Late Friday, Sen. Roger Wicker (R-Mississippi) and Sen. Jack Reed (D-Rhode Island), respectively the chairman and senior member of the Senate Armed Services Committee, issued a statement about the “recent news reports — and the Department of Defense’s initial response — regarding alleged follow-on strikes on suspected narcotics vessels,” saying that they intend to conduct “vigorous oversight to determine the facts related to these circumstances.”
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In briefing materials provided to the White House, JSOC reported that the “double-tap,” or follow-on strike, was intended to sink the boat and remove a navigation hazard to other vessels — not to kill survivors, according to another person who saw the report.
A similar explanation was given to lawmakers in two closed-door briefings, according to two congressional aides. That explanation has prompted frustration among some members of Congress who say they believe the Pentagon was deceptive in its description of events, the aides said.
“The idea that wreckage from one small boat in a vast ocean is a hazard to marine traffic is patently absurd, and killing survivors is blatantly illegal,” said Rep. Seth Moulton (D-Massachusetts), a Marine Corps veteran and vocal Trump critic who received a classified briefing from Pentagon officials on the strikes in late October with other members of the House Armed Services Committee. “Mark my words: It may take some time, but Americans will be prosecuted for this, either as a war crime or outright murder.”
While I have substantial training in the laws of armed conflict, I’m not an expert in the field. Still, I’m quite uneasy about this.
Were those targeted enemy soldiers, they would clearly have been “hors de combat” under the provisions of the Geneva Conventions; American forces would have been required to allow them to surrender and be taken prisoner. The JSOC commander and those who carried out the order would be subject to prosecution as war criminals.
Because the administration has declared these people “narco-terrorists,” though, it may not be so cut and dried. American forces carried out a lot of operations during the so-called War on Terror where those declared enemy combatants had no ability to surrender.
One of the smartest folks on these issues, Harvard Law professor Jack Goldsmith, who headed the Office of Legal Counsel for several months during the heyday of GWOT before resigning in protest, is quite convinced that this was “A Dishonorable Strike.”
One can imagine stretching Article II of the Constitution to authorize the U.S. drug boat campaign. The wildly overbroad Office of Legal Counsel (OLC) precedents, as I have written before, provide “no meaningful legal check on the president.” And there are dim historical precedents one could cite. Arthur Schlesinger Jr. noted in The Imperial Presidency that in the 19th century presidents unilaterally engaged in “[m]ilitary action against Indians—stateless and lawless by American definition—pirates, slave traders, smugglers, cattle rustlers, frontier ruffians [and] foreign brigands.”
One might also, possibly, stretch the laws of war to say that attacks on the drug boats are part of a “non-international armed conflict,” as OLC has reportedly concluded. This line of argument likely draws on a super-broad conception of the threat posed by the alleged drug runners as well as the expansive U.S. post-9/11 practice of treating as targetable (i) dangerous non-state actor terrorists off the battlefield; (ii) those who merely “substantially support” the groups with whom one is in an armed conflict; and (iii) activities that provide economic support to the war effort, such as Taliban drug labs or ISIS oil trucks. I don’t think this argument comes close to working without deferential reliance on a bad faith finding by the president about the non-international armed conflict and much greater stretches of precedent than the United States previously indulged after 9/11. Still, the unconvincing argument is conceivable.
But there can be no conceivable legal justification for what the Washington Post reported earlier today: That U.S. Special Operations Forces killed the survivors of a first strike on a drug boat off the coast of Trinidad who, in the Post’s words, “were clinging to the smoldering wreck.”
[…]
This is an old principle of the laws of war. The Hague Regulations of 1907 state that “it is especially forbidden . . . [t]o declare that no quarter will be given.” The 1863 Lieber Code—the famous U.S. government rules governing military conduct during the Civil War—provides: “Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed.” And the currently governing DOD Manual in Section 5.9 states clearly that persons “placed hors de combat may not be made the object of attack.” The Manual defines “hors de combat” to include “persons . . . otherwise incapacitated by . . . shipwreck.”
[…]
According to the Post, Bradley at some point argued that “the survivors were still legitimate targets because they could theoretically call other traffickers to retrieve them and their cargo.” That is wrong. The theoretical possibility of calling other traffickers for help is not the test. The incapacitated survivors simply may not be targeted unless, as Section 5.9 of the Manual says, they affirmatively committed a “hostile act” or “attempt[ed] to escape.” If the Post’s facts are in the vicinity of the truth, that could not have happened.
Again, Goldsmith is a world-leading expert of these matters and I am not. But successive administrations took the position during GWOT that the laws of war did not fully apply to terrorists and other unlawful combatants because they were neither state actors nor operating as an organized military force (no flags, identifying uniforms, etc.). That was always legally dubious, even though it made some practical sense.
Further, an OLC opinion carries enormous weight. As Goldsmith himself has noted over and over—to his frustration and consternation—their “power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes.” So, even if Congress were suddenly to grow a backbone, those who carried out these orders are unlikely to be prosecuted, much less convicted.
That, of course, does not render dishonorable actions honorable.
