Last week Washington Mail reported that in early September, Defense Secretary Pete Hegseth ordered the military to kill everyone aboard a ship in the Caribbean suspected of transporting drugs. After the first strike on the boat, two men survived; the second missile was launched in accordance with Hegseth's orders. Over the past three months, similar strikes against suspected drug traffickers in the Caribbean and Pacific have killed more than eighty people; That Mail The report was just the most disturbing example in a campaign that many legal experts and government officials consider illegal. (President Trump said Sunday that Hegseth told him he did not give such an order.) Over the weekend, the Republican heads of the Senate and House Armed Services Committees, in a rare break with Trump, joined Top Democrats on the committees have called for further investigation into the September attack.
To talk about the Trump administration's strikes, I called Todd Huntley, 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 was 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 with the culture of the US military.
If Washington Fast the reports are accurate, why was this particular strike illegal?
Essentially, this is the only strike that we know of where, even if you accepted the administration's position that the United States is in armed conflict with these drug cartels, it would still be illegal under the laws of armed conflict because the people were out of combat and shipwrecked and therefore should have been protected.
So it's essentially the same as if you stormed the beaches in Normandy and a German raised his hands and you still shot him?
It's kind of the same thing, but it's the law of the sea, and the law of maritime warfare developed separately from the law of land war and the law of armed conflict. The long tradition of maritime law has acquired legal status. But overall it's the same.
When you say this could potentially be against the law, are we talking about international law? Are we talking about domestic legislation?
This is a violation of customary international law. And, again, this is a recognition of the administration's position that we are in an armed conflict with the 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 this is a violation of customary international law and the law of armed conflict. These provisions have also been incorporated into US domestic law. Thus, under domestic law, this would be murder and would constitute a war crime.
You're saying that all of this would be true even if we took for granted the administration's position that we are in an armed military conflict with the drug cartels, right?
Right.
What does the administration say about this so-called conflict? I get the sense from your tone that you don't find their arguments particularly compelling, but what is the administration arguing and why do you think what they're arguing is problematic?
Their statements contradicted each other. It was initially alleged that the United States used force against these vessels and drug cartel members as an act of self-defense, and they equated drug importation with an armed attack on the United States. Then in one of their addresses to Congress they claim that we are in a non-international armed conflict with drug cartels. The factors that determine whether you are in such a conflict with a non-state group are: You look at the level of organization of the group – it has to achieve a certain level of organization and have some kind of command and control structure, be able to resupply, be able to plan and carry out operations, things like that. And then the violence must reach a certain level of intensity, because if it does not meet these factors, then, in essence, we simply have illegal violent actions that are a matter for law enforcement. So the advantage, if you will, of starting a non-international armed conflict is that you can use force against members of that group as a first resort. This is not law enforcement where the minimum amount of force must be used. If you identify a group member, you can kill him no matter where he is and no matter what he does.
So this will be a legal basis in accordance with international law. The domestic legal framework is based on a number of Office of Legal Counsel (OLC) opinions. These OLC opinions state that the President, as commander in chief under Article II, has the authority to use military force if it is in the U.S. national interest and if it is for a limited duration, scope, and intensity. The idea is that when the President needs to respond to an attack on the United States, he should not be required to obtain congressional authorization before he does so. But here, if they say that we are in a non-international armed conflict, an ongoing armed conflict, that contradicts the fact that it is of limited scope and duration. The domestic legal framework appears to be at odds with the international legal framework.
Apart from the fact that these two reasons contradict each other, what do you think of them individually as arguments?
Could we find ourselves in a non-international armed conflict with drug cartels? Yes, I think it is theoretically possible, or the facts can confirm it. But I just don't see the facts here. The level of violence, at least against the United States, is not that great, unless you consider the consequences of drugs and drug use itself. This is exactly what the administration is doing, but I think it's too indirect to be legal. The groups are certainly not organized at the level that we've seen with al-Qaeda, for example, and the administration seems to lump all of these drug cartels together when in fact they are rivals. They don't act in concert. So I just don't think the administration has presented the facts to support their legal analysis.
