WASHINGTON (AP) — The second strike on survivors of an initial attack on a suspected drug boat may have been murder, legal experts say.
It doesn’t matter if the US is in “armed conflict” with drug cartels, as the Trump administration claims. Such a fatal attack would have violated peacetime laws and those governing armed conflict, experts say.
“I can’t imagine anyone, under any circumstance, thinking it’s appropriate to kill people clinging to a boat in the water,” said Michael Schmitt, a former Air Force attorney and professor emeritus at the U.S. Naval War College. “It’s clearly illegal.”
The White House confirmed on Monday that a second strike was carried out in September against an accused drug-trafficking ship off the coast of Venezuela and insisted 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 about whether service members can refuse to follow illegal orders, which some Democratic lawmakers have recently encouraged.
Here’s what you need to know about strikes and the laws of armed conflict:
The report that sparked the debate
The Washington Post reported last week that Defense Secretary Pete Hegseth issued a verbal directive to “kill everyone” on a targeted boat on Sept. 2, the first vessel struck in what the Trump administration calls an anti-drug campaign that has reached more than 20 known hits and more than 80 deaths.
Two men survived the first attack and clung to the wreckage, the newspaper reported. The commander in charge of the operation, adm. Frank M. “Mitch” Bradley, ordered a second strike to follow Hegseth’s instructions, killing the two men and making 11 in all, the report said.
Hegseth called it “fake news” on social media, saying the boat strikes were “under the law 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 into it,” but added that “I wouldn’t have wanted that — no second strike.” He noted that Hegseth told him that he “did not order the death of those two men.”
White House spokeswoman Karoline Leavitt told reporters Monday that Bradley ordered the second strike and that it was “within his authority to do so.” She denied that Hegseth said to leave no survivors.
The administration justified the attacks as a necessary escalation to stem the flow of drugs into the United States and said the US was engaged in an “armed conflict” with drug cartels, similar to the war against al-Qaida after the 9/11 attacks.
What the law allows during armed conflicts
A second strike to kill the survivors would have been illegal under any circumstances, armed conflict or not, Schmitt said.
He said he did not believe the US was in a legitimate armed conflict with drug cartels, which he said should be committing a high level of violence against the country itself.
An example would be Colombia’s battles with the FARC rebel group.
“But that’s not because they were selling drugs that were killing people,” Schmitt said. “It’s because they were using force against the government in an effort to carry out their drug activities with impunity.”
If the US is not in an armed conflict, it has violated international human rights law, which governs how countries treat people, including extrajudicial killings, Schmitt said.
“You can only use lethal force in circumstances where there is an imminent threat — as imminent as now — to life or really serious injury,” Schmitt said. “And that wasn’t the case.”
The legal threat posed by US military personnel
Brian Finucane, senior adviser to the International Crisis Group and a former State Department lawyer, agreed that the US is not in an armed conflict with the drug cartels.
“The term for premeditated killing outside of armed conflict is murder,” Finucane said, adding that US military personnel could be prosecuted in US courts.
“Killing on the high seas is a crime,” he said. “Conspiracy to commit a crime outside the United States is a crime. And under the Uniform Code of Military Justice, Article 118 makes the crime a felony.”
Even in an armed conflict, Schmitt said the military would be breaking the law if it killed survivors, calling it a war crime.
“It’s been clear for over a century that you may not declare what’s called ‘no quarter’ — take no survivors, kill them all,” Schmitt said. Even when you hit an enemy warship that leaves survivors, “you can’t attack them unless they’re still shooting at you.”
What Congress has said about what’s next
Leaders of the House and Senate Armed Services Committees have opened investigations.
Republican Sen. Roger Wicker of Mississippi, chairman of the Senate committee, and his top Democrat, Rhode Island Sen. Jack Reed, said in a statement late Friday that the committee “will conduct vigorous scrutiny to determine the facts of these circumstances.”
The concern about a second strike comes after a group of Democratic lawmakers — all veterans of the armed services and intelligence community — released a video last month calling on the U.S. military to defy “illegal orders.”
Among them was Senator Mark Kelly, an Arizona Democrat and former Navy fighter pilot, who questioned the use of the military to attack suspected drug boats. The Pentagon says it is investigating Kelly for possible violations of military law related to the video.
Kelly said on NBC’s “Meet the Press” Sunday that there must be an investigation into the report of the strike killing survivors and reiterated that members of the U.S. military must not follow illegal orders.
“If I received an order from the secretary of defense to kill everybody, I would respectfully say, ‘I will not carry out that order,'” Schmitt said.
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Associated Press reporter Konstantin Toropin contributed to this report.