The Dishonorable Strikes on Venezuelan Boats

Fast the tale of a deliberate attack on survivors takes the situation to new levels of moral corruption and legal recklessness. On Friday, Jack Goldsmith, a Harvard Law School professor who served as an assistant attorney general in the Justice Department's Office of Legal Counsel under George W. Bush, wrote that the administration could make “conceivable” arguments to defend ship strikes. However, Goldsmith continued, “there is no conceivable legal justification” for attacking survivors. A group of about forty former senior military lawyers, formed in February after Hegseth fired the judge advocate generals of the Army, Air Force and Navy (he called them “obstacles to the orders given by the commanders in chief”) went even further. “The former JAG Working Group unanimously believes that both the issuance and execution of these orders, if correct, constitute war crimes, murder, or both,” they wrote. The group's roster is not public, in part because of fears of retaliation, but one of its members, Stephen Lepper, a retired Air Force major general and former Air Force judge advocate, told me he believes Hegseth should be prosecuted for murder. “Killing them all is not an order you can follow,” Lepper said.

If Mail the story is accurate, Hegseth's initial order and subsequent attack on the two survivors violates two fundamental and intersecting principles of the law of war. One of them is a ban on “give no quarter” orders—refusing offers to surrender or summarily executing detainees. The Department of Defense's Manual of Military Law, which is the authoritative legal guide to military conduct, explicitly states: “It is prohibited to state that there will be no quarter.” The second is the protection afforded to those considered to be out of commission – removed from combat. Again, from the Law of War Manual: “Combatants who are put out of action must not be the object of attack.” According to MailAdmiral Bradley implausibly argued that survivors of the boat strike “were still legitimate targets, since they could theoretically call other traffickers to take them and their cargo.” The leadership, however, rejects such excuses: “Persons incapacitated by wounds, illness or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack.” Even the usually combative Trump seemed uneasy about the killings, telling reporters he was sure Hegseth did not order the survivors killed and adding: “I wouldn't want that. Not a second strike.” (On Monday, White House press secretary Caroline Leavitt took a different approach, saying that “Admiral Bradley acted well within his authority and the law in directing the engagement so that the boat was destroyed and the threat to the United States of America was eliminated.”)

It happened Mail The report was released a week after six Democratic members of Congress, all with military or intelligence experience, released a video reminding military personnel of their duty to disobey unlawful orders. “Our laws are clear: You can refuse unlawful orders,” said Sen. Mark Kelly of Arizona, a retired Navy captain. The Trump administration has taken a whole-of-government stance on crackdowns. Trump called the video “SEDURY CONDUCT, punishable by DEATH.” The Pentagon soon announced it was investigating Kelly for “serious allegations of misconduct” – a move that could theoretically result in Kelly being recalled to active duty and court-martialed. (Other lawmakers fall outside the Pentagon's jurisdiction because either they did not serve long enough to retire or, as in the case of Sen. Elissa Slotkin of Michigan, they worked for the Central Intelligence Agency.) The lawmakers then said the FBI was trying to schedule interviews with them.

There's a chance that the horror of the impact on survivors, combined with the scant legal explanations for boat strikes in general, could trigger that most elusive of events: a bipartisan blowback. After Mail According to the story, Republican and Democratic leaders of the Senate Armed Services Committee vowed to “rigorously pursue fact-finding related to these circumstances.” The chairman and ranking member of the House Armed Services Committee promised to “compile a full report on the operation under review.” Appearing Sunday on CBS News' “Face the Nation,” Republican Rep. Mike Turner of Ohio, who sits on the House Armed Services Committee and previously chaired the House Permanent Select Committee on Intelligence, said Mail The report said: “Obviously, if this had happened, it would have been very serious and I accept that it would have been an unlawful act.” Republican Congressman Don Bacon of Nebraska said on ABC's “This Week” that he was “very suspicious” that Hegseth “would be stupid enough” to issue such an order. But, he continued, “If everything was as the article said, then it is a violation of the laws of war. When people want to surrender, they are not killed, and they must pose an immediate threat. It is difficult to believe that two people on a raft trying to survive would pose an immediate threat.”

No one who has witnessed the conduct of this Republican-controlled Congress over the past ten months should be convinced that it is the work of an assertive new legislature. But what happens if and when video of the incident (it exists because the administration released an edited version) becomes available, showing the survivors and their murder? This could be a moment like My Lailike Abu Ghraib— when the country is shocked to remember its aspirations. “We have to be the good guys,” Lepper told me. “We have always prided ourselves on being honorable military men. Here we have crossed the line into sheer lawlessness and sheer disgrace.” ♦