Law experts on legality of follow-up strike against alleged drug boat

Key Concepts

• War Crime: An act committed during armed conflict that violates the laws and customs of war.
• Laws of War: A body of international law that governs the conduct of armed conflict.
• Geneva Conventions: A series of treaties that provide legal protections to those affected by armed conflict.
• Additional Protocol I to the Geneva Conventions: An international treaty that expands protections for victims of international armed conflicts, including those who are "hors de combat" (out of combat).
• Hors de Combat: Individuals who are no longer participating in hostilities due to injury, sickness, shipwreck, or capture.
• No Quarter: A declaration or order to give no mercy to an enemy, meaning they will be killed regardless of surrender or incapacitation.
• Authorization for Use of Military Force (AUMF): A congressional resolution that grants the President the authority to use military force.
• Commander-in-Chief Authority: The President's constitutional role as the supreme commander of the U.S. armed forces.
• Fog of War: The confusion and uncertainty that arise during combat, making it difficult to make clear decisions.
• Uniform Code of Military Justice (UCMJ): The body of federal law that governs the U.S. armed forces.
• International Criminal Court (ICC): An intergovernmental organization and international tribunal that is founded to help try individuals accused of war crimes, crimes against humanity, and genocide.

Legal Authority and Justification for Strikes on Drug Boats

The Trump administration asserts legal authority to target alleged drug boats in the Caribbean and Eastern Pacific. However, lawmakers from both parties have voiced concerns following a newly revealed second strike. The White House press secretary confirmed a follow-up strike in September, after the Washington Post reported that Defense Secretary Pete Hegsath issued an order to "leave no survivors."

Arguments Against Justification (International Law Perspective)

• Alan Dershowitz, Senior Lecturer at Stanford Law School:
  • From an international law standpoint, these attacks are "pretty clearly no."
  • Requirement for Armed Conflict: International law recognizes armed conflicts between states and non-state armed groups. However, this requires an "armed attack" to initiate the war.
  • Drug Smuggling vs. Armed Attack: Merely smuggling drugs, even with harmful effects, is not comparable to the 9/11 attacks.
  • Organized Armed Groups: It is "really doubtful" that drug smuggling gangs qualify as "organized armed groups" under international law.
  • State of Armed Conflict is a Legal Concept: A state of armed conflict is a real legal concept with specific criteria that are not met in this case. One cannot simply declare a state of armed conflict to justify killing people.

Arguments for Justification (National Security Perspective)

• Jamil Jaffer, Founder of the National Security Institute at George Mason University:
  • The President has "pretty good argument" based on his Commander-in-Chief authority and executive power to deal with immediate threats to the country.
  • National Security Matter: The President frames the issue as a national security matter due to the tens of thousands of Americans killed by drugs like fentanyl, cocaine, etc.
  • Cutting Off the Drug Trade: The administration's goal is to cut off the drug trade, treating it as a national security issue rather than a law enforcement matter.
  • Congressional Constraint: Congress has the ability to constrain the President through tools like the War Powers Resolution, but they have not done so in this instance.
  • "Go Ahead and Stop Me" Argument: The President's stance is essentially to proceed unless Congress actively stops him.

The Second Strike and Allegations of War Crimes

The second strike, in particular, has drawn significant criticism and raised allegations of war crimes.

Concerns Raised by Lawmakers

• Republican Congressman Mike Turner and Democratic Senator Tim Kaine:
  • Senator Kaine stated that if the reporting is true (that no survivors were to be left), it would be a "very serious" and "illegal act."
  • He argued it would be a "clear violation of the DoD's own laws of war" and international laws regarding the treatment of individuals in such circumstances, rising to the level of a war crime.

Legal Analysis of the Second Strike

• Alan Dershowitz:

  • Even if one accepts the Trump administration's position of a state of armed conflict, it is not permitted to kill individuals who are out of combat, no longer able to fight, or no longer able to defend themselves.
  • The reporting that Secretary Hegsath said "we should kill everyone" is a declaration that "no quarter shall be given," which is explicitly forbidden by an old U.S. law of war treaty.

• Jamil Jaffer:

  • Under the Geneva Conventions, specifically Additional Protocol I, individuals who are "out of combat" (injured, sick, shipwrecked) are protected and cannot be attacked.
  • While the U.S. has not ratified Additional Protocol I, many believe its provisions reflect the actual law of war accepted by all nations.
  • The DoD Law of War Manual suggests that the "out of combat" definition in Additional Protocol I applies to U.S. soldiers generally.
  • The question of whether individuals clinging to the boat were "in the fight" is difficult, but under the circumstances, if the facts are as reported, it was "probably not the right thing to do."

• William Burke White, Professor of Law at the University of Pennsylvania:

  • The second strike is "absolutely illegal."
  • Two Separate Questions:
    1. Lawfulness of Strikes on Drug Boats: The administration's justification of being "at war with drug cartels" is not legally sound under the Constitution or international law. Congress has not authorized the use of force, and cartels are criminal organizations, not armed groups fighting the U.S.
    2. Second Strike as a War Crime: The report of two survivors being deliberately killed in the water is a war crime. Even in an armed conflict, shipwrecked individuals are protected under international law. An order to "leave no survivors" is a "grave breach of the Geneva Conventions."

Responsibility and Accountability

The question of who is responsible for the alleged war crime is a critical aspect of the discussion.

Defense Secretary Pete Hegsath's Position

• Hegsath has distanced himself from the second strike, stating he authorized the attack but that Navy Admiral Mitch Bradley ordered it in real-time.
• He defended Bradley and military personnel, stating they are making "judgment calls" to defend the American people.
• Hegsath cited the "fog of war" as a factor, explaining that the boat was on fire and smoke made visibility difficult.

Legal Responsibility

• William Burke White:

  • The Secretary is attempting to "pass the buck."
  • Responsibility extends from the soldiers who implemented "manifestly unlawful orders" to the admiral who gave them, and to the Secretary of Defense himself.
  • Individuals who carried out such orders could be court-martialed under the Uniform Code of Military Justice (UCMJ).
  • If not held accountable in the U.S., they could theoretically be prosecuted before the International Criminal Court (ICC).

• Retired Army Lieutenant Colonel Jeffrey Korn:

  • If Hegsath authorized the attack based on the government's theory of armed conflict, then the boat was considered a lawful military target.
  • However, he acknowledges the "very difficult questions" about the legitimacy of claiming a war with a criminal gang.
  • He suggests Hegsath's "fog of war" statement was more about distancing himself from the decision to launch the second attack than explaining the admiral's actions.
  • Key Questions for the Admiral:
    • What was the target of the second attack? The vessel or the crew?
    • If the vessel, why the urgency to attack it when survivors were known to be clinging to it, rather than attempting rescue?

Targeting the Vessel vs. Crew

• Jeffrey Korn:
  • If the vessel was a military objective and still afloat, sinking it could be logical.
  • The critical issue is the timing of the second strike.
  • If survivors were known to be present, the urgency to attack again, knowing it would likely result in their deaths, is the "really difficult question." The vessel was not armed or fleeing.

Strategic and Policy Implications

The strikes also raise broader questions about U.S. strategy and policy.

• Former Secretary of Defense Leon Panetta:
  • Wants to know the strategy behind deploying significant forces (15,000 personnel, a carrier strike group) to the Caribbean.
  • Unclear if the strategy is aimed at regime change in Venezuela or stopping narco-trafficking.
  • Reiterates that the second strike was a war crime because individuals were injured and in the water, and basic rules of war prohibit striking wounded people to kill them. The responsibility is to protect their lives.

Lack of Congressional Authorization

A significant point of contention is the absence of a specific Authorization for Use of Military Force (AUMF) for this drug interdiction effort.

• Jamil Jaffer:
  • There is "no authorization for military force for this particular drug interdiction effort."
  • While the President has designated cartels as terrorist groups, this does not grant authority under the AUMF for the War on Terror, which was bounded by the 9/11 attacks.
  • Prior administrations have taken a broad view of the AUMF, but this action "doesn't go this far."

Synthesis and Conclusion

The YouTube transcript delves into the complex legal and ethical ramifications of the Trump administration's strikes on alleged drug boats. The core of the debate centers on whether these actions constitute lawful military operations or war crimes.

Key Takeaways:

• International Law Perspective: Experts like Alan Dershowitz and William Burke White argue that the strikes, particularly the second one, likely violate international law and constitute war crimes. They emphasize that drug smuggling does not meet the threshold for an armed conflict, and the deliberate killing of individuals out of combat or shipwrecked is prohibited.
• U.S. Legal Framework: While the U.S. has not ratified all provisions of Additional Protocol I to the Geneva Conventions, its own Law of War Manual suggests adherence to principles protecting those out of combat.
• Administration's Justification: The Trump administration relies on the President's Commander-in-Chief authority and the framing of drug trafficking as a national security threat to justify the operations. Jamil Jaffer presents this argument, highlighting the lack of congressional action to constrain the President.
• The Second Strike: The alleged order to "leave no survivors" and the subsequent strike on individuals clinging to the boat are the most contentious aspects, widely described as a potential war crime.
• Accountability: Defense Secretary Hegsath is attempting to distance himself from the second strike by citing the "fog of war" and attributing the real-time order to Admiral Bradley. However, legal experts argue that responsibility extends up the chain of command, including to the Secretary.
• Lack of AUMF: The absence of a specific congressional authorization for these operations is a significant legal vulnerability.
• Strategic Ambiguity: Former Secretary of Defense Leon Panetta questions the underlying strategy and purpose of the significant military deployment in the Caribbean.

In essence, the video presents a strong legal case against the administration's actions, particularly the second strike, framing it as a violation of established laws of war and potentially a war crime, while also acknowledging the administration's assertion of executive authority in the face of perceived national security threats. The debate underscores the critical need for clear legal justifications and adherence to international humanitarian law in military operations, even those targeting non-state actors.