The Law of War Was Not Designed for Trump's Bogus 'Armed Conflict' With Drug Smugglers
Instead of asking whether a particular boat attack went too far, Congress should ask how the summary execution of criminal suspects became the new normal.
The Trump administration disputes The Washington Post's report that Defense Secretary Pete Hegseth instructed U.S. forces to "kill everybody" on a suspected drug boat in the Caribbean last September, which allegedly resulted in a second missile strike that blew apart two survivors of the initial attack who "were clinging to the smoldering wreck." But even President Donald Trump seems to agree that such an order would be problematic, and so do the Republican legislators who have promised to investigate the incident. If the Post report is accurate, a group of former military lawyers says, "the giving and the execution of these orders" would "constitute war crimes, murder, or both."
Although that much seems clear, attempts to apply the law of war in these circumstances are complicated by the atypical features of the "armed conflict" that Trump says justifies his bloodthirsty anti-drug strategy, which so far has killed 83 people in 21 attacks. Supplying illegal drugs to Americans, the president avers, amounts to "an armed attack against the United States," which supposedly makes boats believed to be carrying those drugs legitimate military targets. But the resulting violence is notably one-sided, to the point that the government's lawyers claim it does not qualify as "hostilities" under the War Powers Resolution because U.S. military personnel face no plausible risk of casualties.
Keeping in mind the mismatch between Trump's "armed conflict" and the usual understanding of the phrase, what does the Defense Department's law-of-war manual tell us that might be relevant to the Hegseth controversy? "Members of the armed forces must refuse to comply with clearly illegal orders to commit law of war violations," it says. "For example, orders to fire upon the shipwrecked would be clearly illegal."
That rule presumably would prohibit deliberately killing people clinging to the wreckage of a vessel that U.S. forces have attacked. "The term 'shipwreck' means shipwreck from any cause and includes forced landings at sea by or from aircraft," the manual says. "The shipwrecked may be understood to include those in distress at sea or stranded on the coast who are also helpless. To be considered 'shipwrecked,' persons must be in need of assistance and care, and they must refrain from any hostile act."
Hegseth's critics also argue that a "kill everybody" order would be tantamount to a "no quarter" policy, which the manual prohibits. But applying that rule in this situation is less straightforward than it might seem, especially if it requires distinguishing between Trump's avowed policy and the alleged order that he says he is sure Hegseth did not issue.
"It is forbidden to declare that no quarter will be given," the manual says. "This means that it is prohibited to order that legitimate offers of surrender will be refused or that detainees, such as unprivileged belligerents, will be summarily executed. Moreover, it is also prohibited to conduct hostilities on the basis that there shall be no survivors, or to threaten the adversary with the denial of quarter."
That rule, the manual explains, "is based on both humanitarian and military considerations," and it "also applies during non-international armed conflict"—the label that Trump has applied to his lethal anti-drug campaign. The injunction against "conduct[ing] hostilities on the basis that there shall be no survivors" seems especially relevant in this context, except that the government insists U.S. forces are not engaging in "hostilities" when they blow up suspected drug boats.
That legal position, which is aimed at avoiding the constraints imposed by the War Powers Resolution, seems inconsistent with Trump's assertion of an "armed conflict." So does the nature of that purported conflict, which poses further puzzles.
Trump explicitly rejects the prior practice of arresting suspected drug smugglers, preferring to simply kill them. So his policy does not allow for "detainees," and it makes summary execution routine. Nor is it clear how we should understand "legitimate offers of surrender" by "belligerents" whom the president has unilaterally identified as such based on the illegal business in which they allegedly are involved, as opposed to their participation in violent attacks on American targets.
Geoffrey Corn, formerly the U.S. Army's senior adviser on the law of war, rejects Trump's assertion of a "non-international armed conflict," noting that it is inconsistent with the standard definition of that term. In an interview with The New York Times, Corn noted the complications that flow from the president's dubious determination:
In a real naval armed conflict, he said, it is lawful to fire on a partly disabled enemy warship that is continuing to maneuver or fire its guns, even if there are wounded sailors aboard or shipwrecked sailors clinging to it. But if a warship signals it is out of the fight by ceasing firing and lowering its colors, he said, then it becomes illegal to keep firing upon it.
The problem with all that, he said, is that the speedboat was not a warship with guns to stop firing and colors to lower.
"This is the consequence of treating something that is not really an armed conflict as an armed conflict," he said. The speedboat could not signal it was out of the fight because "it was not really fighting to begin with."
The root of the problem is that Trump conflates drug smuggling with violent aggression, which in his mind transforms murder into self-defense. Based on that fallacious assumption, he has authorized a campaign that trashes due process and obliterates the traditional distinction between combatants and civilians. Instead of asking whether a specific instance of that general policy transgressed the law of war, which was not designed for a situation like this, Congress should ask how the summary execution of criminal suspects became the new normal.
