WASHINGTON (AP) — The U.S. military would have committed a crime if it killed the survivors of an alleged drug boat attack, legal experts say.
It doesn’t matter whether America is in an “armed conflict” with drug cartels, as the Trump administration claims. Such a deadly second strike violated peacetime laws and those governing armed conflict, experts say.
“I can’t imagine anyone, regardless of the circumstances, believing it’s justified to kill people who are clinging to a boat in the water,” said Michael Schmidt, a former Air Force attorney and professor emeritus at the U.S. Naval War College. “This is clearly illegal.”
The White House confirmed on Monday that a second strike was carried out in September against a ship accused of drug smuggling off the coast of Venezuela, insisting it was carried out in “self-defense” and in accordance with the laws of armed conflict.
A news report about that attack generated a new level of scrutiny from lawmakers and added to a growing debate over whether service members can refuse to follow illegal orders, which some Democratic lawmakers have recently encouraged.
Here’s what to know about strikes and the law of armed conflict:
Which started the debate
The Washington Post reported last week that Defense Secretary Pete Hegseth issued a directive on September 2 calling for “killing everyone” on the targeted boats, which the Trump administration has said has increased to more than 20 known strikes and killed more than 80.
Two men survived that first attack, which killed nine others, and were trapped in the wreckage, the newspaper reported. The commander in charge, Adm. Frank Bradley, ordered a second strike to follow Hegseth’s instructions and killed two men, the Post reported.
Hegseth called it “fake news” on social media, saying the boat strikes were “in compliance with the laws of armed conflict — and endorsed by the best military and civilian lawyers, up and down the chain of command.”
President Donald Trump said Sunday that the administration would “look at it” but added that “I didn’t want it — not a second strike.” He noted that Hegseth told him “he did not order the death of those two men.”
White House spokeswoman Carolyn Levitt told reporters Monday that Bradley had ordered the second strike and was “well within his authority to do so.” She denied that Hegseth had survived anyone.
The administration has justified the attacks as a necessary escalation to stem the flow of drugs into the United States and has claimed the US is engaged in an “armed conflict” with drug cartels similar to the war against al-Qaeda after the September 11 attacks.
What the law allows in times of armed conflict
Surviving a second strike would have been illegal under any circumstances, armed conflict or not, Schmidt said.
He said the U.S. is not in a legitimate armed conflict with drug cartels, which not only smuggle drugs that kill Americans, but commit high-level violence against the country.
Even if it was, “it’s been clear for more than a century that you can’t declare what’s called ‘no quarter’ — take none alive, kill all,” Schmidt said.
Matthew Waxman, a law professor at Columbia University who served as national security official in the George W. Bush administration, said whether an armed conflict is taking place will not be decided by an international body such as the International Criminal Court, to which the United States is not a party.
The United States, however, could face blowback from allies, which may refuse to share information for military operations illegal under their own laws or under international law, said Waxman, who served in the State and Defense departments and on the National Security Council under Bush.
He said that the United States’ armed conflict against Al-Qaeda has received the support of the United Nations Security Council, NATO and American allies.
Legal threat to US military personnel
If the U.S. is not in an armed conflict, that means it has violated international human rights law, which governs how countries treat individuals, Schmidt said.
“You can use deadly force in situations where there is imminent danger,” Schmidt said. “And that was not the case.”
Brian Finucane, a senior adviser at the International Crisis Group and a former State Department attorney, agreed that America is not in an armed conflict with drug cartels.
“The word for premeditated killing outside of armed conflict is murder,” Finucane said, adding that US military personnel can be prosecuted in US courts.
“Murder on the high seas is a crime,” he said. “Conspiracy to commit murder outside the United States is a crime. And under the Uniform Code of Military Justice, Section 118 makes murder a crime.”
The Pentagon’s own manual on the rules of war describes a scenario similar to the September 2 boat strike when discussing whether service members should refuse to obey illegal orders.
“For example,” the manual says, “an order to set fire to a ship would be clearly illegal.”
What will the Congress say now?
Leaders of the Armed Services Committees in both the House and Senate have opened investigations.
Sen. Roger Wicker, Republican of Mississippi, chairman of the Senate committee, and its top Democrat, Sen. Jack Reed of Rhode Island, said the committee “will conduct a rigorous investigation to determine the facts surrounding these circumstances.”
Concerns about the second strike came after a group of Democratic lawmakers — all veterans of the armed services and intelligence community — released a video calling on members of the U.S. military to defy “illegal orders.”
Among them was Sen. Mark Kelly, an Arizona Democrat and former Navy fighter pilot who questioned the use of the military to raid alleged drug boats. The Pentagon said it was investigating Kelly for possible violations of military law in connection with the video.
Kelly said Monday that “if what appears to have happened, actually happened, I’m concerned about our service members.”
Senate Majority Leader John Thune has defended the boat raids as stopping the flow of drugs into the US and said he would wait for the results of the review.
“Obviously, if there was a directive to fire a second shot and kill people, that’s a violation of moral, ethical or legal code. We need to get to the bottom of it,” said Sen. Thom Tillis, Republican of North Carolina.
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Associated Press writers Stephen Groves, Lisa Mascaro and Joey Cappelletti contributed to this report.
