The US military has killed scores of people — 83 and counting — in unprecedented military strikes on alleged drug boats.
The US military has killed scores of people —83 and counting— in unprecedented military strikes on alleged drug boats.
But it is new revelations about the fate of nameless individuals who ultimately were killed in September in the first acknowledged military attack on a boat that have reignited a debate about the legality — or lack thereof — of the unprecedented US military campaign.
If it is true that an order was given specifically to kill the people as they clung to the side of a damaged boat, then Americans could be guilty of a war crime or murder, some military and legal experts say.
TheWashington Postreported last week that Defense Secrtary Pete Hegseth gave an order to kill everyone on the boat, and the military carried out a “double-tap” strike after the vessel was apparently disabled and it appeared, according to the Post’s report, there were two survivors still onboard.CNN later published this report.
It sounds like something from a mafia hit, but in military terms, a double tap can be the practice of following an initial attack with a second strike. Russiahas been accusedof using the practice in Ukraine to target first responders. The US military was criticized during former President Barack Obama’s administration forutilizing the practice with drones attacksduring the war on terrorism.
Trump told reporters that he “wouldn’t have wanted a second strike” and that Hegseth told him “that didn’t happen” as described in media reports.
White House press secretary Karoline Leavitt said Monday the strikes were ordered by Adm. Frank M. “Mitch” Bradley, the commander of US Special Operations Command.
The September 2 strikes were conducted in “self-defense,” she said, as well as “in international waters and in accordance with the law of armed conflict.”
The killing of individuals stranded on a boat could be a crime under the law of war, international law or US law, according to Daniel Maurer, a retired Army judge advocate general who is now an associate professor at Ohio Northern University.
“Whether they are narco-terrorists designated by the president or not, whether they’re war criminals or not, it doesn’t matter,” Maurer told CNN’s Boris Sanchez on Monday. “Killing them while shipwrecked, while they’rehors de combat— while they’re out of the fight — is a war crime.”
But Maurer does not believe this particular strike, if it occurred as recent media reports suggest, would be a war crime since he doesn’t consider the US to be legally engaged in an armed conflict with any narco-terrorists.
“It’s just extrajudicial killing, which is a murder under international law, under our domestic law. There is no authority to do this,” he said.
If the facts ultimately show the strike was taken to kill the survivors, it would be the equivalent of Hegseth or Bradley condoning or ordering murder, which could implicate “everyone down that chain of command who participated in, who planned, who executed that strike,” Maurer said, although he doubts there will be any kind of criminal accountability.
Revelations about the second boat strike have even someRepublicans seeking answersfrom the administration. Bipartisan congressional reviews have been launched in the House and Senate.
Whatever facts are uncovered, what they say about Bradley’s intent in ordering the second strike will be key, according to Jonathan Turley, a professor at George Washington University School of Law.
Was he trying to take out the survivors or to sink the boat?
“If he was intending to take out the remainder of the boat, he likely is within the laws of war,” Turley said on Fox News on Monday.
Sen. Angus King, an independent from Maine who sits on the Senate Armed Services Committee, said if the strike was intended to kill survivors, it would clearly be illegal.
“That’s a stone-cold war crime. It’s also murder,” King said on CNN on Monday.
“American servicemen don’t kill noncombatants, they don’t torture prisoners, they don’t kill prisoners. That’s taught in Day 2 of basic training,” retired Brig. Gen. Mark Kimmitt said on CNN on Monday.
But at the same time, he described the system by which the military assesses a strike and said there could easily be scenarios that explain the second attack.
“If the mission was to sink that ship and it was not sunk, then there would be a legitimate reason for a reattack against that to make sure it sinks,” Kimmitt said.
All of this means “we need to really understand what was said, when it was said and who said it.”
Harvard professor Jack Goldsmith, who served as a lawyer in both the Department of Justice’s Office of Legal Counsel and the Department of Defense after the 9/11 terrorism attacks under President George W. Bush, has previously argued there could be conceivable legal justifications for the Trump administration’s attacks on alleged drug boats. But he struggled, in a post on hisExecutive Functionsnewsletter, to see how the second strike on September 2, as described in the Post report, did not violate laws.
He quoted the Civil War-era Lieber Code of 1863 by which President Abraham Lincoln decreed that inflicting additional wounds or killing an enemy “wholly disabled” should be put to death if convicted.
The Pentagon’s current Law of War Manual and the Geneva Convention include “No quarter” provisions that prohibit “conducting hostilities on the basis that there shall be no survivors.”
For another roundup of the law of war that is more skeptical of Trump’s ability to engage in armed conflict with narco-terrorists and cartels, see the websiteJust Security.
Many Republican lawmakers continued to defend Trump’s power and dismissed any questions about the September strike.
Sen. Markwayne Mullin, an Oklahoma Republican, told CNN’s Dana Bash on Sunday he didn’t understand the big deal.
“Are we doubting that these drug dealers are actually drug dealers? We think they’re out there fishing?” he asked on “State of the Union.” “Do we doubt that this is a terrorist organization that’s killing thousands and thousands of people on our streets? What are we questioning here?”
In point of fact, there has been no documented evidence provided by the administration publicly that the boats were carrying drugs. And none of the people who have been killed were put on trial, including those who apparently could have been rescued.
Survivors of a later strike, in October, were rescued from the water by the US military and returned to their home countries, in part because it was unclear under what legal authority the US military could hold the prisoners, Brian Finucane, a former State Department lawyer who specializes in war powers issues, previously told CNN.