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Was it a war crime or wasn't it? That's the question swirling around Defense Secretary Pete Hexith, the man handpicked by Donald Trump to run his recristened Department of War.
But before we get there, it's worth zooming out for a moment. From upending the economy and declaring war on American cities to weaponizing the legal system against critics and mostly failing, this administration's approach seems anchored in unleashing unspeakable harm and chaos, all in service of feeding Donald Trump's ego, expanding executive power, and distracting from an historically unpopular presidency.
This approach comes straight out of the Center for Renewing America, a right-wing think tank launched in 2021 to help prepare for a second Trump presidency. It was founded by Russell Vote, whom you'll recall is the architect of Project 2025 and Trump's current director of the Office of Management and Budget, an incredibly powerful perch from which to oversee the deployment of Project 2025.
While Vote wasn't advocating lawlessness, many of the leaders and senior fellows of the Center for Renewing America now serve inside Trump's cabinet, including Vote himself and Cash Patel. And it was that think tank, Russell Vote's think tank, that first drafted ideas like invoking the insurrection act against US cities, firing civil servants on mass, and dismantling internal legal constraints. In a private 2024 speech, he said, quote, "I don't want President Trump having to lose a moment of time having fights in the Oval Office about whether something is legal or doable or moral." End quote.
So, cue to what's going on right now with the boat strikes. For several months, Hegsith has been directing a highly controversial military campaign in the Caribbean without congressional authorization or oversight. The Pentagon claims that it is targeting drug drug-smuggling boats that are carrying narcotics to the United States, but has provided no evidence to support those assertions.
Criticism of the campaign escalated after the Washington Post reported last week, according to two unnamed people with direct knowledge of the operation that Hegsith issued a verbal order before the very first strike on September the 2nd to quote kill everybody end quote. Now, in military parlance, that's known as a no quarter order, an instruction to leave no survivors. If true, a no quarter order would violate both US military law and international law. Hegsith, the White House, and Admiral Bradley have denied that Hegsith gave such an order.
Crucially, it doesn't matter whether the survivors on those boats were civilians, combatants, or criminals. The order to kill survivors itself is a war crime if we take the administration at its word that it considers this an armed conflict. If, however, we aren't in an armed armed conflict, which we aren't, then the killing of the survivors, who would be considered civilians, is murder.
Members of Congress, many of whom are already critical of the broader Caribbean campaign, which seems to be targeting Venezuela more than it's targeting drugs, have now opened inquiries into what happened on that day. And here's what we know. On September 2nd, US forces struck a vessel allegedly involved in drug trafficking. The first strike disabled the boat, leaving survivors clinging to debris. 11 people were killed in total, including two survivors who died in a follow-up strike, a so-called double tap, which may also be considered a war crime under international law. The Pentagon has carried out 22 strikes in total, killing at least 87 people.
For its part, the Trump administration claims the US is engaged in a non-international armed conflict, which is a designation that matters because such campaigns require congressional authorization. Under the War Powers Resolution of 1973, the president must consult Congress before introducing US forces into hostilities unless Congress independently formally declares war. But the administration has attempted to sidestep that law, arguing that the War Powers Resolution applies only when US service members are placed in harm's way. Because the strikes are conducted remotely, they claim these don't qualify as hostilities. In other words, yes, we're in an armed conflict, but no, we technically haven't introduced US forces into any hostilities because technology allows us to strike from far away, which effectively means we're blowing boats out of the water with no evidence and no due process, something most of us have only ever understood to be murder.
In America, we're supposed to prosecute people for their crimes and try them. We're not supposed to indiscriminately kill them. And if we tried these alleged drug dealers and found them to be guilty in a court of law, none of them would actually face the death penalty. And in what certainly seems like an admission, Donald Trump himself said the quiet part out loud back in October. >> I don't think we're going to necessarily ask for a declaration of war. I think we're just going to kill people that are bringing drugs into our country. Okay? We're going to kill them. You know, they're going to be like dead like dead.
And that raises the central legal question. Is the United States actually in an armed conflict with the people on these boats, or is our government just committing flat-out murder? This matters because two completely different legal frameworks apply depending on the answer. Many experts say the administration's claim of armed conflict is highly dubious. Under the laws of armed conflict, suspected drug cartels are not organized armed groups capable of the sustained intense hostilities required to trigger international law.
But for let's assume for argument's sake that this is an armed conflict. If so, the laws of war apply, or what's known as international humanitarian law, which clearly prohibits targeting civilians, killing wounded or defenseless survivors, failing to rescue those in distress, and issuing or obeying no quarter orders. Deliberately killing survivors, and issuing orders to kill everybody are therefore war crimes. Former Defense Secretary Leon Panetta and many military lawyers have called the second strike on September 2nd a war crime based on public reports.
The duty to rescue shipwrecked or wounded survivors is one of the oldest principles of international law. It protects civilians and service members alike and has endured because of a norm known as reciprocity. We protect your survivors, you protect ours. The US actually helped establish this norm during World War II, explicitly rejecting the Japanese Navy's no survivors policy and condemning the killing of helpless sailors as inhumane. America's treatment of survivors in that war would become the foundation for modern maritime law. Crossing the line today endangers US troops and shatters an 80-year framework that's keeping them safe.
Now, let's look at the other option. Legally, there's no armed conflict, which there isn't, then domestic law applies. Under US law, killing people outside of combat without trial is quite simply murder. It's an extrajudicial killing. A conflict does not become an armed conflict simply because Trump calls it one. To qualify, the opposing forces in which America is in conflict must be an organized armed group engaged in sustained intense hostilities. Legal experts overwhelmingly agree drug cartels do not meet that standard. So if this was not an armed conflict, and again, there has been no legal determination that it is part of an armed conflict, then the killings would instead fall under US criminal law, the Uniform Code of Military Justice, and maritime law, which governs peacetime navigation. And the rule in all of them is simple. You cannot kill people, criminals or otherwise, without due process.
Since the Washington Post's allegations surfaced, the Trump administration and Hegsith have done everything possible to distance themselves from that September 2nd strike. Amid the fallout, Hegsith appears to have found a potential fall guy, Admiral Frank Bradley, the special operations commander who oversaw the mission. In classified briefings Thursday, Bradley told lawmakers investigating Hegsith's alleged kill all order that no such directive came from the Defense Secretary.
But days before that private briefing, the White House was already working to distance Hegsith from the strikes. On Monday, White House Press Secretary Caroline Levit said Bradley worked well within his authority and the law, directing the engagement to ensure the boat was destroyed. Hegsith that same day appeared to shift blame to Admiral Bradley, posting on X, quote, "Let's make one thing crystal clear. Admiral Mitch Bradley is an American hero, a true professional, and has my 100% support. I stand by him and the combat decisions he has made on the September 2nd mission and all others since. America is fortunate to have such men protecting us." End quote. "I stand by him and the combat decisions he's made on the September 2nd mission and all others since." That's very odd phrasing and it's very telling. It reads less like support for your subordinate and more like a legal play.
Hegsith doubled down on Tuesday, saying, quote, "All these strikes, they're making judgment calls, ensuring they defend the American people." Notice that he's conspicuously leaving out any mention of his own role in the operation. For two days in a row, he went out of his way to stress that Admiral Bradley made these combat decisions. And this might be part of the reason that six Democratic lawmakers with military and intelligence experience released a video last month warning service members to disobey unlawful orders. They understand that if things go wrong, the soldier pulling the trigger will be held accountable.
As Congressman Seth Moulton himself, a Marine veteran, put it, quote, "Mark my words, it may take some time, but Americans will be prosecuted for this, either as a war crime or outright murder." And if you think a Trump pardon is going to protect subordinates, think again. Presidential pardons do not extend to international law. War crimes prosecutions can proceed long after any administration ends. Soldiers could face lifelong consequences, even arrest abroad.
As attorney and Iraq war vet Steve Kennedy put it, quote, "As both a lawyer and someone who once followed orders for a living, American service members have not been allowed to use 'just following orders' as a defense for more than half a century. Since the 1950s, every soldier, sailor, marine, and airman has been trained on this point. These regulations are not merely aspirational. Service members have been and continue to be jailed for illegal uses of force, and the 'just following orders' defense has never saved them. To every service member, every commander, and every political leader, if you commit a war crime or an extrajudicial killing outside of an actual war, you can be prosecuted if not by this administration, then by a future one. Please do not condemn yourself to prison and a lifetime of guilt for Donald Trump and Pete Hegsith." End quote.
Hegsith's own record, by the way, only casts the Caribbean allegations in a more alarming light. In his book, The War on Warriors, he brags about telling US soldiers in Iraq to ignore legal guidance on rules of engagement, telling them, quote, "I will not allow that nonsense to filter into your brains." He praises a commander who reportedly ordered troops to kill all military-aged males and mocks lawful restraint as nothing more than BS rules. That commander, by the way, was later reprimanded for issuing that order.
Hegsith goes further, by the way, questioning the entire legal framework governing armed conflict. He wrote, quote, "If our warriors are forced to follow rules arbitrarily and asked to sacrifice more lives so that international tribunals feel better about themselves, aren't we just better off winning our wars according to our own rules? Who cares what other countries think?" End quote.