WASHINGTON (AP) — The US military would have committed a crime if it killed the survivors of an attack on an alleged drug boat, legal experts say.
It doesn’t matter if the United States is in “armed conflict” with the drug cartels as the Trump administration asserts. Such a deadly second strike would violate peacetime laws and those governing armed conflict, experts say.
“I can’t imagine anyone, under any circumstances, believing that it’s appropriate to kill people who are clinging to a boat in the water,” said Michael Schmitt, a former Air Force attorney and professor emeritus at the US Naval War College. “This is clearly illegal.”
The White House confirmed on Monday that the second strike was carried out in September against a vessel accused of drug trafficking off the coast of Venezuela and insisted that it was carried out “in self-defence” and in accordance with the laws of armed conflict.
A news report on that attack prompted 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 urged.
Here’s what you need to know about strikes and the laws of armed conflict:
That sparked the debate
The Washington Post reported last week that Secretary of Defense Pete Hegseth issued a directive speaking to “kill everyone” on a boat targeted on September 2, the first vessel hit in what the Trump administration calls an anti-drug campaign that has grown to more than 20 known strikes and more than 80 dead.
Two men survived that first attack, which killed nine others, and were clinging to the wreckage, the newspaper reported. The commander in charge, Adm. Frank Bradley, ordered a second strike to comply with Hegseth’s instructions, killing both men, the Post reported.
Hegseth called it “fake news” on social media, saying the boat strikes are “in line with the law of armed conflict – and endorsed by top military and civilian lawyers, up and down the chain of command.”
President Donald Trump said Sunday that the administration “will look into” but added that “I did not want this – not a second strike.” He noted that Hegseth told him “he did not order the death of those two men.”
White House spokeswoman Karoline Leavitt told reporters on Monday that Bradley had ordered the second strike and “it was well within his authority to do so.” She denied that Hegseth said he would leave no survivors.
The administration justified the attacks as a necessary escalation to stop the flow of drugs into the United States and claimed that the United States is engaged in an “armed conflict” with drug cartels, similar to the war against al-Qaida after the September 11 attacks.
What the law allows during an armed conflict
A second strike that would have killed the survivors would have been illegal under any circumstances, armed conflict or not, Schmitt said.
He said that the United States is not in a legitimate armed conflict with drug cartels, who must be committing high levels of violence against the country, not just trafficking drugs that kill Americans.
Even if it was, “it’s been clear for over a century that you can declare what’s called ‘no quarter’ — you don’t take survivors, you kill everybody,” Schmitt said.
Whether an armed conflict is taking place is unlikely to be resolved by an international body such as the International Criminal Court, to which the United States is not a party, said Matthew Waxman, a Columbia University law professor who was a national security official in the George W. Bush administration.
The United States, however, may face blowback from allies, who may refuse to share information for military operations that are illegal under their own laws or international law, said Waxman, who served in the State and Defense departments and on the National Security Council under Bush.
America’s armed conflict against al-Qaida has received support from the UN Security Council, NATO and US allies, he said.
The legal threat posed to US military personnel
If the United States is not in an armed conflict, that means it has violated international human rights law, which governs how countries treat individuals, Schmitt said.
“You can only use lethal force in circumstances where there is an imminent threat,” Schmitt said. “And that was not the case.”
Brian Finucane, a senior adviser with the International Crisis Group and a former State Department attorney, agreed that the United States 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 in international waters is a crime,” he said. “Conspiracy to commit murder outside the United States is a crime. And under the Uniform Code of Military Justice, Article 118 makes murder a crime.”
The Pentagon’s own manual on the laws of war describes a scenario similar to the September 2 boat strike when it discusses when service members should refuse to comply with illegal orders.
“For example,” says the manual, “orders to shoot at shipwrecks would be clearly illegal.”
What Congress said about what’s coming
Leaders of the Armed Services committees in both the House and Senate have opened investigations.
Republican Sen. Roger Wicker of Mississippi, chairman of the Senate committee, and its top Democrat, Sen. Jack Reed of Rhode Island, said the committee “will be conducting vigorous oversight to determine the facts related to these circumstances.”
Concerns about a second strike come after a group of Democratic lawmakers — all veterans of the armed services and the intelligence community — released a video calling on members of the US military to defy “illegal orders”.
Among them was Senator Mark Kelly, Democrat of Arizona and a former Navy fighter pilot who questioned the use of the military to attack alleged drug boats. The Pentagon says it is investigating Kelly for possible violations of military law related to the video.
Kelly said Monday that “if what appears to have happened, actually happened, I’m really concerned about our service members.”
Senate Majority Leader John Thune defended the boat strikes as stopping the flow of narcotics into the United States and said he should await the outcome of the reviews.
“Obviously, if there was a direction to take a second shot and kill people, this is a violation of an ethical, moral or legal code. We need to get to the bottom of it,” said Senator Thom Tillis, Republican of North Carolina.
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Associated Press writers Stephen Groves, Lisa Mascaro and Joey Cappelletti contributed to this report.