WASHINGTON (AP) — Legal experts say it would be a crime if the U.S. military killed survivors of an attack on a suspected drug-trafficking ship.
It doesn’t matter whether the United States is in “armed conflict” with drug cartels, as the Trump administration claims. Experts said such a deadly second strike would violate peacetime and armed conflict laws.
“I can’t imagine that anyone would believe that it would be appropriate to kill someone holding a boat in the water, regardless of the circumstances,” said Michael Schmidt, a former Air Force attorney and professor emeritus at the U.S. Naval War College. “It’s clearly illegal.”
The White House on Monday confirmed a second attack in September on a ship accused of drug trafficking off the coast of Venezuela, insisting it was “self-defense” and consistent with the laws of armed conflict.
News coverage of that attack sparked renewed scrutiny from lawmakers and intensified a growing debate over whether service members can refuse to comply with illegal orders, a practice that some Democratic lawmakers have recently encouraged.
Here is information about strikes and the law of armed conflict:
what sparked the controversy
The Washington Post reported last week that Defense Secretary Pete Hegseth issued a verbal directive to “kill everyone aboard” the ship targeted on Sept. 2, the first ship to be hit in the Trump administration’s so-called counterdrug operation that has grown to more than 20 known attacks and killed more than 80 people.
The first attack killed nine people and two men survived the wreckage, the newspaper reported. Gen. Frank Bradley, the commander in charge, ordered a second strike on Hegseth’s instructions that killed the two men, The Washington Post reported.
Calling it “fake news” on social media, Hegseth said the attack on the vessel “was in compliance with the laws of armed conflict and approved by the best military and civilian lawyers up and down the chain of command.”
President Donald Trump said Sunday that the government “will look into this,” but added, “I don’t want that to happen — don’t want a second attack.” He noted that Hegers told him “he did not order the execution of these two men.”
White House spokesperson Carolyn Leavitt told reporters on Monday that Bradley had ordered a second strike and was “fully within his authority to do so.” She denied Hegseth’s claim that there would be no survivors.
The administration sees the attacks as a necessary escalation in stemming the flow of drugs into the United States and claims the United States is engaged in an “armed conflict” with drug cartels similar to the war against al-Qaeda after the Sept. 11 attacks.
What the law allows during armed conflict
Schmidt said a second attack that killed a survivor would be unlawful under any circumstances, regardless of whether there was an armed conflict.
The United States is not in a legitimate armed conflict with drug cartels, he said, and drug cartels must commit massive violence against the United States, not just traffic drugs that kill Americans.
Even so, “it’s been clear for more than a century that you can’t declare what’s called ‘no mercy’ – take no survivors, kill everyone,” Schmidt said.
Matthew Waxman, a Columbia University law professor who served as a national security official in the George W. Bush administration, said whether an armed conflict is occurring may not be resolved by an international body such as the International Criminal Court, to which the United States is not a party.
However, Waxman, who served at the Departments of State and Defense and the National Security Council under Bush, said the United States could face pushback from allies that may refuse to share information about military operations that are illegal under their own laws or international law.
He said the U.S. armed conflict against al-Qaeda has the support of the United Nations Security Council, NATO and U.S. allies.
Legal threats to U.S. military personnel
Schmidt said if the United States is not involved in armed conflict, that means it is violating international human rights law, which governs how countries treat individuals.
“Lethal force can only be used if there is an imminent threat,” Schmidt said. “And that’s not the case.”
Brian Finucane, a senior adviser at the International Crisis Group and a former State Department lawyer, also believes that the United States is not in armed conflict with drug cartels.
“Premeditated killing outside of armed conflict is called murder,” Finucane said, adding that U.S. military personnel could be prosecuted in U.S. courts.
“Murder on the high seas is a crime,” he said. “Conspiracy to commit murder outside the United States is a crime. Murder is criminalized under Section 118 of the Uniform Code of Military Justice.”
The Pentagon’s own law of war manual describes a scenario similar to the Sept. 2 ship strike when discussing when service members should refuse to comply with unlawful orders.
“For example,” the manual reads, “an order to fire on a victim is clearly illegal.”
What Congress has to say about what’s coming next
Leaders of the House and Senate Armed Services Committees have launched investigations.
The Senate committee’s chairman, Sen. Roger Wicker, R-Miss., and its Democratic leader, Sen. Jack Reed, R-Rhode Island, said the committee “will conduct rigorous oversight to determine the facts relevant to these situations.”
A group of Democratic lawmakers – all veterans of the armed services and intelligence community – released a video calling on U.S. service members to defy “unlawful orders,” raising fears of a second attack.
Among them is Arizona Democratic Sen. Mark Kelly, a former Navy fighter pilot who has questioned the use of the military to attack suspected drug-trafficking ships. The Pentagon said it was investigating Kelly for possible violations of military law related to the video.
“If what appears to be happening is actually happening, I’m really worried about our service members,” Kelly said Monday.
Senate Majority Leader John Thune defended the attacks on the ships as an effort to stem the flow of drugs into the United States and said he would await the outcome of the review.
“Clearly, if there was an instruction to fire a second shot to kill, that would be a violation of ethical, moral or legal principles. We need to get to the bottom of it,” said Sen. Thom Tillis, R-N.C.
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Associated Press writers Stephen Groves, Lisa Mascaro and Joey Cappelletti contributed to this report.