The Volokh Conspiracy Archive

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Eugene Volokh | 11.30.2025 3:00 AM

The Washington Post reported yesterday that Secretary of Defense Pete Hegseth did not merely order the initial strike on a boat off of believed to be transporting drugs, but gave the specific order to kill those on the boat. After the first strike hit the boat, a second strike was ordered to take out two survivors "clinging to the smoldering wreck" caused by the first.

Jack Goldsmith posted on this report yesterday at Executive Function. His essay, "A Dishonorable Strike," begins:

One can imagine stretching Article II of the Constitution to authorize the U.S. drug boat campaign. The wildly overbroad Office of Legal Counsel (OLC) precedents, as I have written before, provide "no meaningful legal check on the president." And there are dim historical precedents one could cite. Arthur Schlesinger Jr. noted in The Imperial Presidency that in the 19th century presidents unilaterally engaged in "[m]ilitary action against Indians—stateless and lawless by American definition—pirates, slave traders, smugglers, cattle rustlers, frontier ruffians [and] foreign brigands."

One might also, possibly, stretch the laws of war to say that attacks on the drug boats are part of a "non-international armed conflict," as OLC has reportedly concluded. This line of argument likely draws on a super-broad conception of the threat posed by the alleged drug runners as well as the expansive U.S. post-9/11 justification for treating as targetable (i) dangerous non-state actor terrorists off the battlefield; (ii) those who merely "substantially support" the groups with whom one is in an armed conflict; and (iii) activities that provide economic support to the war effort, such as Taliban drug labs or ISIS oil trucks. I don't think this argument comes close to working without deferential reliance on a bad faith finding by the president about the non-international armed conflict and much greater stretches of precedent than the United States previously indulged after 9/11. Still, the unconvincing argument is conceivable.

But there can be no conceivable legal justification for what the Washington Post reported earlier today: That U.S. Special Operations Forces killed the survivors of a first strike on a drug boat off the coast of Trinidad who, in the Post's words, "were clinging to the smoldering wreck."

Whether Hegseth was aware of this second strike, or his initial order was properly interpreted to direct it is unclear, but it does not change the bottom line. Goldsmith writes:

In short, if the Post's facts are correct, it appears that Special Operations Forces committed murder when the "two men were blown apart in the water," as the Post put it.

The post concludes:

Hegseth has emphasized that he wants to restore the "warrior ethos" in the U.S. military. In the hours after the story, he signaled generic support for the boat strike campaign and chest-thumped that "We have only just begun to kill narco-terrorists."

Yet the warrior ethos has always demanded honorable conduct in warfare. The Navy Seals, for example, describe themselves as "a special breed of warrior" but the Seal Ethos thrice emphasizes the importance of honor, including "on . . . the battlefield." And surely the warrior ethos, whatever else it means, doesn't require killing helpless men clinging to the burning wreckage of a blown-up boat. The DOD Manual is clear because the law here is clear: "Persons who have been incapacitated by . . . shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack."

Read the whole thing.

11/29/2004: Randy Barnett argues Gonzales v. Raich.

From the Joint Pre-Trial Memorandum in McQuade v. UMass Memorial Health Care, Inc., the plaintiff's position:

In the summer of 2020, a position at UMass Memorial's Heart Vascular Interventional Lab commonly known as the Cath lab opened. Mr. McQuade and Andrews both applied for the Cath lab position. Ms. Andrews was awarded the Cath lab position. Once Mr. McQuade learned that Ms. Andrews was awarded the Cath lab position, he reached out to his union representatives for advice. Mr. McQuade's Massachusetts Nurses Association ("MNA") union representatives … both advised that Mr. McQuade should file a grievance because he had seniority over Andrews, and had the requisite experience to work in the Cath lab.

Ultimately, on September 11, 2020, Mr. McQuade was successful in his grievance and was awarded the Cath lab position. This, in turn, caused Andrews to leave the Cath lab position and return to her previous position in the float pool. Andrews was angry that she had to return to the float pool. Andrews desperately wanted to stay in the Cath lab and filed her own counter grievance that was eventually denied at the "step 3" stage by UMass Memorial. Therefore, the only way Andrews could be able to return to the Cath lab would be if a position opened by resignation or otherwise, including the resignation of Mr. McQuade….

The Nurse Defendants are all friends and would frequently socialize outside of work together. Mr. McQuade expects the evidence will show that, the Nurse Defendants did the unthinkable, and started a vile, and frankly evil slander campaign against Mr. McQuade, in an effort to have him resign from the Cath lab, so the Nurse Defendants could all work together again. Specifically, the Nurse Defendants began spreading defamatory rumors around UMass Memorial that stated Mr. McQuade abused his wife and child and had an open DCF investigation against him. Further, Clark stated that Mr. McQuade "created a farm in [his] back yard in order to lure in children as [his] prey."

From a Justice Department statement issued Nov. 7, but just posted on Westlaw:

Zimnako Salah, 46, of Phoenix, Arizona, was sentenced today in the Eastern District of California to six years in prison in connection with his plot targeting Christian churches.

In March 2025, a jury in Sacramento convicted Salah of strapping a backpack around the toilet of a Christian church in Roseville, with the intent to convey a hoax bomb threat and to obstruct the free exercise of religion of the congregants who worshipped there. The jury's verdict included a special finding that Salah targeted the church because of the religion of the people who worshipped there, making the offense a hate crime.

According to the evidence at trial, from September to November of 2023, Salah traveled to four Christian churches in Arizona, California, and Colorado, wearing black backpacks. At two of those churches, Salah planted those backpacks, placing congregants in fear that they contained bombs. At the other two churches, Salah was confronted by security before he got the chance to plant those backpacks.

While Salah had been making bomb threats by planting backpacks in Christian churches, he had been building a bomb capable of fitting in a backpack. During a search of his storage unit, an FBI Bomb Technician seized items that an FBI Bomb Expert testified at trial served as component parts of an improvised explosive device (IED).

A search of Salah's social media records revealed that he had consumed extremist propaganda online. Specifically, those records showed that Salah had searched for videos of "Infidels dying," and he had watched videos depicting ISIS terrorists murdering people. In a cellphone video taken days before the crimes of conviction, Defendant Salah declared, "America. We are going to destroy it." …

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Lawyers! IJ is hiring, including this exciting new gig: Assistant General Counsel. If you're an experienced attorney who thrives in a fast-paced environment, enjoys tackling a wide variety of legal questions, and wants your work to support a powerful mission, this could be the perfect fit.

New on the Short Circuit podcast: Did an Ohio man need a permit for people to come to his house and pray?

Who owns a rhinestone-adorned piano that was once the property of Liberace? The First Circuit sees no reason to disturb the jury's breach-of-bailment verdict: It belongs to the charitable foundation of the Gibson guitar company and not to the Rockland, Mass. piano retailer who says the foundation gave, rather than lent, it to him.
District court (w/o a hearing and via one-paragraph order): This California-based cannabis entrepreneur lacks standing to challenge Rhode Island's licensing rules requiring majority in-state ownership/control and reserving social-equity slots for businesses majority-owned by people with Rhode Island-specific ties. First Circuit: The claims are ripe, not moot, she has standing, and similar Maine and New York laws have been invalidated on dormant commerce clause grounds in the meantime. Reversed and remanded for further proceedings—with haste! Read More

The article is here; here's the Introduction:

The centennial of Gitlow v. New York is upon us. Gitlow is typically praised as an essential step in the development of modern First Amendment doctrine, so that it is said that "[f]ew individual stars shine as brightly in the constellation of American civil liberties cases." Yet, closely examined, Gitlow seems a puzzling choice for constitutional canonization.

Decided at a time when there were virtually no First Amendment protections for speech, Gitlow held that government could punish mere abstract advocacy of violent revolution. Over the dissenting votes of Oliver Wendell Holmes, Jr. and Louis Brandeis, Gitlow stood for the proposition that "a State in the exercise of its police power may punish those who abuse" freedom of speech "by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means." It would not be too much of an exaggeration to characterize Gitlow as "the clearest expression of the Supreme Court's acceptance of seditious libel."

Modern First Amendment doctrine, by contrast, is founded on the fundamental axiom that the state may not punish seditious libel. If we now celebrate Gitlow, therefore, it is certainly not for its articulation of the substance of First Amendment protections. It must rather be because Gitlow construed the liberty interests protected by the Due Process Clause of the Fourteenth Amendment, which apply as against the States, to include free speech protections analogous to those protected by the First Amendment, which apply as against the federal government. "The precise question presented, and the only question which we can consider under this writ of error," Gitlow states, is "whether the statute, as construed and applied in this case, by the State courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment."

We are now apt to interpret this language through the lens of incorporation doctrine, which conceives the Due Process Clause of the Fourteenth Amendment as transparently reproducing the exact doctrines of the First Amendment "jot-for-jot and case-for-case." But any such conception of incorporation developed well after Gitlow, which understood itself instead to be explicating the specific nature of the liberty protected by the Fourteenth Amendment. The question in Gitlow was not what the First Amendment required; it was instead what was required by the liberty interests safeguarded by the Due Process Clause.

11/28/1872: Justice Samuel Nelson resigns.

A nice piece, which I enjoyed and thought I'd pass along. As with all such things, it can't capture the whole picture, but it captures an important part of it, I think. You can see it on Persuasion, or (under a slightly different title) on Kasparov's Next Move; an excerpt:

Democracy, freedom—politics, too. These are not ends in and of themselves. They are a vehicle for delivering human happiness and flourishing. That goal is what we're fighting for.

The notion of a free society is abstract. Thanksgiving celebrates abundance, and abundance is tangible. You can taste it. Smell it. Hear it. The turkey and mashed potatoes on your plate, the chatter with loved ones, whom you're free to visit—these are the fruits of a free society….

Free societies deliver abundance.

These days, there is a lot of doom and gloom about the United States across the political spectrum. I am not talking about America's current democratic and institutional crisis, which is indeed deathly serious. I am referring to the short-sighted ideological decay that is increasingly popular with radicals of all stripes; on the right, the perception of America as sinful, deviant, and overly tolerant. On the left, it is the view that America is criminal, colonial, illegitimate….

Americans would do well to discard these self-destructive narratives. It may be hard to describe what lofty concepts like democracy and freedom really mean, but you can see the rewards of those concepts all around you if you're willing to open your eyes.

If Abraham Lincoln could find time for gratitude in the middle of a deadly Civil War, Americans today can too. If [Boris] Yeltsin [visiting the U.S. in 1989] could be so impressed by a grocery store many Americans might consider average, then you have something to be thankful for. I'll dispense with the caveat that America isn't perfect (what country is?). If you are thankful for something, then you have something you can fight for.

Afghan evacuees arrive at Dulles International Airport in Virginia — Afghan evacuees arrive at Dulles International Airport in September 2021 (Rod Lamkey - CNP/Polaris/Newscom)

Yesterday, Afghan migrant Rahmanullah Lakanwal shot and seriously wounded two National Guard members in Washington, DC. In response, the Trump Administration has "indefinitely" suspended processing of all immigration-related applications by Afghans, including those legally in the US already. The Trump Administration has already been trying to deport many recent Afghan migrants, and this attack may serve a convenient excuse for further actions along these lines.

Lakanwal's attack was a heinous crime, and he should be prosecuted to the fullest extent of the law. But Trump's collective punishment of Afghan immigrants is both unjust and counterproductive. As a group, Afghan immigrants have a very low rate of terrorism. Moreover, many entered the United States precisely because they helped the US in the war against the Taliban and Al Qaeda. Barring or deporting such people will predictably undermine future efforts to combat terrorism.

My Cato Institute colleague Alex Nowrasteh, a leading expert on immigration and terrorism (author of the most comprehensive analysis of that subject), has a helpful post listing all Afghan migrants who committed or attempted to commit terrorist attacks in the US, from 1975 to 2024. There are a total of only six, none of whom caused any fatalities. If, as seems likely, Lakanwal's attack was motivated by terrorism, that would make seven. That's a very low rate (about one perpetrator every seven years) for an immigrant community that numbers some 200,000 people.

If Lakanwal's crime turns out to be a terrorist attack, it would be only the second attempted by one of the large number of Afghan migrants who entered since 2021, after the fall of Afghanistan to the Taliban (the earlier case was this one). If, as the administration claims, the 2021 influx included large numbers of unvetted terrorists, we should be seeing a lot more incidents like these.

The overall rate of terrorism among Afghan migrants may well be lower than that among native-born Americans. Since 2020, domestic right-wing perpetrators of political violence (nearly all native-born whites) have killed 44 people, and likely committed many more non-fatal attacks, though the exact number is hard to pin down. Left-wing domestic terrorists accounted for another 18 deaths during the same period (they, too, probably committed many additional non-fatal attacks). That's likely a higher incidence of terrorism than Afghan migrants, even accounting for the latter's much smaller numbers. Exact comparisons are difficult because we don't have a comprehensive data base of non-fatal domestic terrorist incidents.

Conservatives rightly decry racial and ethnic discrimination by government in other contexts, for example when it comes to racial preferences in employment and education. These principles should apply to immigration, as well. There is no justification for collectively sanctioning all Afghan migrants for the aberrational acts of very small number of them. All the more so in a situation where deportation and exclusion would subject victims to the horrifically oppressive rule of the Taliban. That's far worse than, e.g., being unfairly denied admission to an elite college, and having to settle for a lower-ranking one.

In the case of the Afghans, deportation and exclusion may well actively undermine the struggle against terrorism, rather than further it. I explained why in an earlier post about Trump's efforts to deport Afghans who arrived since 2021:

The veterans' groups [opposing deportation of Afghans] are right. Afghans deported back to Afghanistan - especially those who worked with the US during the war - will indeed face harsh persecution by the Taliban. Deporting them would be profoundly unjust, and also a betrayal of wartime allies that will make it more difficult for the US to recruit local support in any future conflict. If we don't stand by our allies, why would anyone trust us?

I'm old enough to remember a time when Republicans saw themselves as fighters against radical Islamism. Now they seek to deport Afghan allies back to the tender mercies of the Taliban, under the ludicrous pretext that conditions in Afghanistan are improving under the Taliban's rule.

If we betray Afghans who helped us fight terrorism, based on indefensible ethnic prejudice, potential allies will be less likely to help us in future conflicts.

NOTE: To forestall misunderstandings, I will point out I am using the word "punishment" here in its colloquial sense, covering all retaliatory punitive actions, rather than in the technical legal sense, which only covers penal sanctions imposed after conviction for a crime. The administration's actions against Afghan migrants fit the former definition, even if not the latter.

11/27/1964: WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of the "Christian Crusade" series. This broadcast gave rise to Red Lion Broadcasting Co. v. Federal Communications Commission (1969).

From yesterday's Oregon Supreme Court decision in State v. Cortes, written by Justice Bronson James:

Defendant, who is houseless, is on probation and subject to the general conditions of probation provided for by Oregon law. Those conditions include the requirement that a probationer shall "[n]ot possess weapons, firearms or dangerous animals." Defendant's probation officer issued a probation violation report alleging that defendant had violated the general weapons condition when he reported to the probation office with a knife in his backpack. At the probation violation hearing, defendant claimed that, although it was a knife, it was a steak knife, and it was therefore not a weapon but a tool, an essential eating implement that defendant carried in his backpack by necessity because, being houseless, he carried all his worldly possessions upon his person. {The knife was nine inches long, and the blade was four-and-a-half inches in length and had a rounded tip.}

The trial court rejected defendant's argument that the knife—even if it was a steak knife—was not a weapon for purposes of the probation statute. The Court of Appeals affirmed without opinion.

We allowed review to consider whether defendant violated the weapons condition in ORS 137.540(1)(j). The debate in this case might appear ontological in nature: What makes a weapon a weapon? What characteristics give an object weaponness?

But, we need not resolve those deeper philosophical questions. Our task is more grounded; we are only called upon to decide what the Oregon legislature intended to be considered a weapon for purposes of ORS 137.540. Here, based on the text, context, and legislative history of ORS 137.540(1)(j), and considering maxims of constitutional avoidance, we hold that the legislature intended for the term "weapons," as used in that statute, to apply to instruments designed primarily for offensive or defensive combat or instruments that would reasonably be recognized as having substantially the same character, and not to tools or objects designed primarily for utility, even when those tools can be used as weapons under some circumstances.

From last week's Texas Court of Criminal Appeals decision in Smith v. State, written by Judge Scott Walker; the Court of Criminal Appeals is Texas's highest court for criminal cases (the Texas Supreme Court handles civil cases):

Appellant's Confrontation Clause rights were violated by the trial court's mask mandate….

In Romero v. State (Tex. Crim. App. 2005), … one of the State's key witnesses refused to testify without wearing a "disguise" consisting of "dark sunglasses, a baseball cap pulled down over his forehead, and a long-sleeved jacket with its collar turned up and fastened so as to obscure [his] mouth, jaw, and the lower half of his nose." This Court noted that "the presence requirement is motivated by the idea that a witness cannot 'hide behind the shadow' but will be compelled to 'look [the defendant] in the eye' while giving accusatory testimony."

[The court in Romero also reasoned that, "Although the physical presence element might appear, on a superficial level, to have been satisfied by Vasquez's taking the witness stand, it is clear that Vasquez believed the disguise would confer a degree of anonymity that would insulate him from the defendant. The physical presence element entails an accountability of the witness to the defendant…. In the present case, accountability was compromised because the witness was permitted to hide behind his disguise." -EV]

Although in Maryland v. Craig (1990), the Supreme Court [rejected a Confrontation Clause because it] determined that the testimony of a child through a one-way closed-circuit monitor was reliable even though the physical presence element was lacking, the facts in Craig are not analogous to Romero. "[U]nlike Craig, [Romero] also involve[d] a failure to respect a second element of confrontation: observation of the witness's demeanor." When more than two elements of confrontation are being compromised, this Court determined that the Confrontation Clause requirements can only be circumvented if the public policy interest being served is "truly compelling." We did not find the witness's fears compelling, noting differences between adults' fears and children's fears and the fact that the defendant already knew the witness's name and address….

The Confrontation Clause requires case-specific evidence showing an encroachment of the defendant's right to confrontation was necessary to further a public-policy interest for the encroachment to be allowed under the United States Constitution. Because a surgical mask affects the physical-presence element of the Confrontation Clause and the jury's ability to assess demeanor, the trial court was required to make case-specific showings of fact that the mask mandate was necessary to further a public-policy interest….

[T]he use of surgical masks in the case at bar … is a significant impediment to viewing facial expressions due to the coverage of both the nose and mouth …. A reversal of the conviction is warranted because (1) the trial court did not show case-specific evidence that the masks were necessary, and (2) the mask mandate was applied regardless of individual necessity….

Today the U.S. Court of Appeals for the Eleventh Circuit largely upheld the district court's dismissal of Donald Trump's lawsuit against Hillary Clinton and others and affirmed the district court's award of sanctions against Trump and Alina Habba. Chief Judge William Pryor wrote for the panel, joined by Judges Brasher and Kidd.

Judge Pryor's opinion in Trump v. Clinton begins:

These four consolidated appeals concern five separate orders. In 2022, between his terms of office, President Donald Trump filed a lawsuit against dozens of defendants, alleging several claims, including two under the Racketeer Influenced and Corrupt Organizations Act and three under Florida law. The district court dismissed the amended complaint with prejudice for failure to state a claim. On the defendants' motions, the district court also entered sanctions against Trump and his attorneys, under Rule 11 and under its inherent authority. While those orders were on appeal, Trump and his attorneys moved the district court to reconsider each order in the light of a report by Special Counsel John Durham. They also moved to disqualify the district judge. The district court denied both motions. Two defendants ask us to sanction Trump for bringing a frivolous appeal.

We affirm the orders with a caveat. Because the district court lacked jurisdiction over one defendant, it erred in dismissing the claims against that defendant with prejudice. So we vacate the dismissal of those claims and remand with instructions to dismiss them without prejudice. Because Trump's remaining claims are untimely and otherwise meritless, we affirm the dismissal of the amended complaint with prejudice for the other defendants. And because Trump and his attorneys committed sanctionable conduct and forfeited their procedural objections, we affirm both sanctions orders. The Durham Report does not change our conclusions, and the district court lacked jurisdiction to consider the disqualification motion. Yet, because the appeal of the dismissal order is not frivolous, we deny both motions for appellate sanctions.

Update: Here are some portions of the opinion discussing the sanctions:

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