Former JAGs parse Trump admin’s legal reasoning for second boat strike
As the U.S. continues to attack alleged drug boats in the Caribbean Sea, political commentators from both sides of the aisle continue to give their opinions. That comes as experts on the matter remain mostly united in their takes on the issue.
Drug boat attacks
The U.S. military has carried out nearly two dozen attacks, killing more than 80 people in the process.
The Trump administration continues to claim these boats are full of drug traffickers, but has yet to provide evidence of that.
The first of those attacks came under extra scrutiny after anonymous sources told the Washington Post that Secretary of Defense Pete Hegseth ordered the unit charged with the offensive to “kill them all,” prompting a second strike on a boat that had survivors of the initial attack.
White House Press Secretary Karoline Leavitt called the second strike necessary in “self-defense to protect Americans.” Other officials reportedly justified the second strike as eliminating the possibility that others will come for the suspected narcotics.
Critics have called it a war crime for killing defenseless men.
What commentators are saying
Conservative commentators have defended the strikes.
“I really do kind of not only wanna see them killed in the water, whether they’re on the boat or in the water, but I’d really like to see them suffer,” Megyn Kelly said. “I would like Trump and Hegseth to make it last a long time, so they lose a limb and bleed out.”
Fox News commentator Mark Levin reposted an article about the strikes and said, “This is what a leader does.”
However, some conservatives have not been as friendly as Kelly and Levin, pushing back on the strikes, especially the alleged order from Hegseth that resulted in a strike on survivors.
“It was, at best, a war crime under federal law,” Andrew McCarthy, conservative commentator and former prosecutor, wrote in an op-ed. “I say “at best” because, as regular readers know, I believe the attacks on these suspected drug boats — without congressional authorization, under circumstances in which the boat operators pose no military threat to the United States, and given that narcotics trafficking is defined in federal law as a crime rather than as terrorist activity, much less an act of war — are lawless and therefore that the killings are not legitimate under the law or armed conflict.”
Progressive commentators have been, as expected, very critical of the strikes, citing the legality and ethics behind them.
Comedian Jimmy Kimmel, who’s been famously at odds with the Trump administration, called the strikes “war crimes.”
Sara Haines, a cohost of “The View,” described the move as “flat-out murder.”
What experts are saying
Legal experts are mostly unanimous on these strikes.
“I’ve never seen this much consensus on an issue of war law as I’ve seen in this regard,” Geoffrey Corn, law professor at Texas Tech University and director of the Center for Military Law and Policy, told Straight Arrow News.
That opinion is that these strikes are not legal.
“They’re grossly unlawful,” Rachel VanLandingham, law professor at Southwestern Law School and retired lieutenant colonel from the U.S. Air Force, told SAN. “There is no non-international armed conflict. There is no armed conflict whatsoever. And so just by calling it an armed conflict, in order to take advantage, that is, to exploit status based targeting is really obscene in my book. And I think these have been a series of murders which really constituted crimes against humanity.”
Corn shared a similar sentiment.
“Armed conflict requires a contest between two organized military groups of protracted violence, where each side is trying to attack the others, and that’s just absent here,” Corn said.
Corn said he was a strong proponent for the pragmatic interpretation of that concept to use against groups like al-Qaida and ISIS.
“This is not stretching the meaning of armed conflict,” Corn said. “This is breaking it.”
Who needs to push back against these allegedly unlawful attacks?
“If Congress isn’t critical and demands credible explanations for why we’re treating this as a war, nobody should be shocked,” Corn said.
He added that usually there’s lawyers within the government and military to push back, but many of them have been pushed out by the Trump administration.
“When I was a military lawyer, we had a general who made that point,” Corn said. “He said, your job as a military lawyer is to question authority, not to challenge it, but to question it.”
While VanLandingham agreed it’s up to Congress to push back, she doesn’t expect that at this point and pressure needs to come from elsewhere.
“It really does need to be public pressure, working through the representatives to say, we’re not going to fund this,” VanLandingham said.
When it comes to the highly publicized double tap strike, Corn said it’s not as cut and dry as it appears.
“My expectation is that the admiral in that closed door hearing is going to tell the members of Congress and the senators ‘I ordered an attack on the boat,’” Corn said. “‘I knew it would kill the people hanging on, but the boat was still a legitimate military target, and that’s why I did it.’”
Targeting the boat is significantly different than targeting the people.
“That might not seem significant if you’re a family member of the survivor who’s now dead, but as a matter of law, it is profoundly significant because if you’re attacking the ship, the questions then become, ‘was it necessary to do it at that moment,’” Corn said.
He added this specific type of incident is pretty clearly laid out in military guidelines.
“The Department of Defense Law of War Manual uses the example of an order to kill shipwrecked sailors as an example of a clearly unlawful order that must be disobeyed,” Corn said.
Could Hegseth face criminal prosecution?
Legal experts said Hegseth could face criminal prosecution in the future, but President Donald Trump could also issue him a pardon before leaving office.
“What could arise later, would be some of the things that we saw regarding Secretary [Donald] Rumsfeld and others that really never came to pass,” VanLandingham said.
Lawsuits were filed in several other countries against Rumsfeld, alleging torture and cruel and unusual punishment against prisoners taken during the Bush administration.
Adm. Frank Bradley’s name has also been named as one of the leaders who ordered the second strike and could potentially face disciplinary action as well.
“He should be court-martialed for plain-up murder,” VanLandingham said. “Because even if he did receive an order, he had a duty to disobey. The absolute legal duty to disobey arises when one faces either an order one already knows is unlawful or they should know it’s unlawful because it orders a crime that’s so manifestly, patently unlawful that a person of ordinary sense and understanding would know it’s a crime.”
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Ella Rae Greene, Editor In Chief
