A Dishonorable Strike
Indulging all assumptions in favor of the administration’s boat strikes, killing helpless men is murder
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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.”
Section 5.4.7 of the DOD Law of War Manual says:
Prohibition Against Declaring That No Quarter Be Given. It is forbidden to declare that no quarter will be given. This means that it is prohibited to order that legitimate offers of surrender will be refused or that detainees, such as unprivileged belligerents, will be summarily executed. Moreover, it is also prohibited to conduct hostilities on the basis that there shall be no survivors, or to threaten the adversary with the denial of quarter. This rule is based on both humanitarian and military considerations. This rule also applies during non-international armed conflict.
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.”
In short, if the Post’s facts are correct, it appears that Special Operations Forces committed murder when the “two men were blown apart in the water,” as the Post put it.
It is unclear from the Post’s reporting precisely what role Secretary of Defense Pete Hegseth played in the decision to kill the survivors of the first strike. The story opens:
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.
The Post then reports that after then-Joint Special Operations Command chief U.S. Navy Admiral Frank “Mitch” Bradley became aware of the survivors, he “ordered the second strike to fulfill Hegseth’s directive that everyone must be killed.” This makes it seem like Hegseth—even if his initial “order” was (as it seems) a command to take no quarter—might not have been in the loop between the first and second strikes.
I do not believe, based on the facts in the Post story, that Bradley could have relied on Hegseth’s order—even if Hegseth formally ordered the second strike. The prohibition on targeting a disabled combatant is so clear that Bradley had a duty, in the words of 18.22.4 of the Manual, “to refuse to comply with clearly illegal orders to commit violations of the law of war.”
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. (The Intercept, which reported the kernel of this event in September, said that the survivors were “killed shortly after in a follow-up attack.”)
I wrote a few weeks ago about the possibility of an OLC golden shield as a defense to illegal conduct in connection with the boat strikes. OLC is forbidden to “advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law” and is exercising power delegated from an Attorney General unflinchingly beholden to the President. But I do not believe that even the Bondi OLC could legally justify the events the Post reported. In an opinion last summer upholding the general legality of the drug boat campaign, OLC apparently stated (or at least assumed) that the law of armed conflict governed the strikes. In this light, it is hard to see how OLC could bless these strikes, much less do so ex post. Which leaves the pardon power as the option that can, and no doubt will, eventually immunize what happened.
Hegseth has emphasized that he wants to restore the “warrior ethos” in the U.S. military. In the hours after the story, he signaled generic support for the boat strike campaign and chest-thumped that “We have only just begun to kill narco-terrorists.”
Yet the warrior ethos has always demanded honorable conduct in warfare. The Navy Seals, for example, describe themselves as “a special breed of warrior” but the Seal Ethos thrice emphasizes the importance of honor, including “on . . . the battlefield.” And surely the warrior ethos, whatever else it means, doesn’t require killing helpless men clinging to the burning wreckage of a blown-up boat. The DOD Manual is clear because the law here is clear: “Persons who have been incapacitated by . . . shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack.”