Last week, the Washington Post reported that, in early September, Secretary of Defense Pete Hegseth ordered the military to kill everyone on board a boat in the Caribbean suspected of carrying drugs. After an initial strike on the boat, two men were still alive; a second missile was launched to comply with Hegseth’s order. In the past three months, similar strikes on alleged drug traffickers in the Caribbean and the Pacific have killed more than eighty people; the Post report was only the most disturbing example in a campaign that many legal experts and government officials believe to be unlawful. (On Sunday, President Trump said that Hegseth told him he had not given such an order.) This past weekend, the Republican heads of the Senate and House Armed Services Committees, in a rare break from Trump, joined the ranking Democrats on the committees in calling for further investigation of the September attack.
To talk about the Trump Administration’s strikes, I called Todd Huntley, the director of the National Security Law program at Georgetown University Law Center. Huntley previously served as a judge advocate in the Navy for more than two decades. During our conversation, which has been edited for length and clarity, we discussed the apparent illegality of what has been reported about this attack, the similarities and differences between this strike and the worst parts of America’s drone wars, and, more broadly, what the Trump Administration wants to do to the culture of the U.S. military.
If the Washington Post’s reporting is accurate, why exactly was this strike illegal?
Basically, this is the one strike that we know about where even if you accept the Administration’s position that the United States is in an armed conflict with these drug cartels, this would still be unlawful under the laws of armed conflict, because the individuals were out of the fight and shipwrecked, and thus owed protection.
So it is essentially the same as if you storm the beaches at Normandy and a German puts his hands up and you shoot him anyway?
It’s kind of the same, but it is the law of the sea, and the law of naval warfare has developed separately from the law of land warfare and the law of armed conflict. And long-standing tradition around the law of the sea has come to take on a legal status. But in general it is the same.
When you say it would potentially be a violation of the law, are we talking about international law? Are we talking about domestic law?
It’s a violation of customary international law. And, again, this is accepting the Administration’s position that we are in armed conflict with drug cartels. [In October, the Administration notified Congress that it was in a so-called non-international armed conflict, which refers to a conflict with non-state actors.] So it’s a violation of customary international law and the law of armed conflict. Those provisions have also been incorporated into American domestic law. And so under domestic law it would be murder and it would constitute a war crime.
You’re saying that all of these things would be true even if we take as a given the Administration’s position that we are in an armed military conflict with drug cartels, correct?
Right.
What has the Administration been saying about this so-called conflict? I sense from your tone of voice that you don’t find their arguments particularly compelling, but what is the Administration claiming, and why do you think what they’re claiming is problematic?
Their claims have contradicted each other. Initially, the claim was that the United States was using force against these boats and members of the drug cartels as an act of self-defense, and they equated the importation of drugs to an armed attack against the United States. Then, in one of the notices to Congress, they claim that we are in a non-international armed conflict with the drug cartels. The factors that determine whether you’re in such a conflict with a non-state group are: You look at the level of organization of the group—it has to reach a certain level of organization, and have some sort of command-and-control structure, be able to resupply itself, be able to plan and carry out operations, those types of things. And then the violence has to reach a certain level of intensity, because if it doesn’t meet those factors, what you have is basically just unlawful violent action, which is a law-enforcement matter. And so the advantage, if you will, of triggering a non-international armed conflict is that you can use force against members of that group as a matter of first resort. It’s not like law enforcement, where you have to use the minimal amount of force. If you’ve identified a member of the group, you can kill him no matter where he is, and no matter what he’s doing.
So that would be the legal basis under international law. The domestic legal basis comes from a line of several Office of Legal Counsel (O.L.C.) opinions. These O.L.C. opinions have stated that the President, as the Commander-in-Chief under Article II, has authority to use military force if it is in the U.S. national interest, and if it’s for a limited duration, scope, and intensity. The idea is that when the President has to respond to an attack on the United States, you shouldn’t require him to get congressional authorization before he does. But here, if they say we’re in a non-international armed conflict, an ongoing armed conflict, that contradicts the fact that this is of limited scope and duration. The domestic legal basis seems to conflict with the international legal basis.
Aside from the fact that those two bases conflict, what do you make of them separately as arguments?
Could we be in a non-international armed conflict with drug cartels? Yes, I think theoretically we could be, or the facts could support that. But I just don’t see the facts here. The level of violence, at least as directed against the United States, isn’t so great unless you’re going to count the effects of the drugs and the drug use itself. That is what the Administration is doing, but I think it is too indirect to be legitimate. The groups certainly are not organized at the level that we saw with Al Qaeda, for instance, and the Administration seems to lump all these drug cartels in together, when they’re really, in fact, rivals. They are not acting in concert. So I just don’t think that the Administration has shown the facts that support their legal analysis.
