"Killing Helpless Men Is Murder"

Jack Goldsmith on "A Dishonorable Strike"

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.

Comments

[hobie]

It's definitely a war crime no matter how you spin it.

[DDHarriman]

In short, if the Post's facts are correct,

I am so sure after years of anti-Trump lies, this is the time it's totally true!!! Exactly as their secret anonymous sources reported it!! I wonder if it's the super most trusted source "people familiar with Trump/Hegseth's thinking". That's their goto source for all things Trump.

We all know critics of Trump NEVER lie, or exaggerate or stretch facts.

NEVER!!! Everyone. This is the utmost moral concern. Everyone stare and pay rapt attention at this new shiny anti-Trump thing!

IT'S MEULLER TIME!!!!

next up the *BOOM* tweets from the lawfare crowd... Might be harder to do for them without Comey's illegal leaks... but they still can.

[bloocow2]

What a sniveling, cowardly little man, to give an order like that, killing helpless men in the water who aren't posing any threat at all. And he has the nerve to criticise a battle veteran of Desert Storm, for merely repeating legal facts.

This is more dishonourable than anything Kelly said.

[Riva]

“Facts” from the WP. Uh huh. Bovine scatology. State sponsored armed narco-terrorists smuggling poison into this country are not “helpless men.” The helpless are the victims in the US. This article is a disgrace.

[bloocow2]

You literally have zero evidence that they are, aside from the government's say-so. A government that lies to its citizens as naturally as breathing, because they think (maybe correctly) that people either don't care, or are credulous enough to swallow whatever bullshit they vomit out on a daily basis

And even if they are drug smugglers, your own laws of war -- Because this is a war, right? Right? -- forbid the execution of people who can't fight back. There is absolutely no justification for this.

[Riva]

Just out for a fun day fishing eh?

[Riva]

And high-level, state-linked paramilitary narco-terrorist actors are not just "smugglers."

[David Nieporent]

They are not state sponsored, they are not narco terrorists, and they are not smuggling anything — let alone poison — into this country. And even if they were all of those things it wouldn't make them not helpless men at the time they were murdered. The Rivabot just can't help from reposting Nazi propaganda over and over again.

[Riva]

You want to support the deluge of bullshit coming from the left, feel free asshole. Note that, in my comments, I pointedly do not falsely accuse others of plagiarism.

[Josh R]

Assuming they are doing what Trump claims they are, I'm not following how they are narco-terrorists. Yes, they would be drug smugglers. But, why are they terrorists? Are they using violence to influence policy or prevent law enforcement? Are they using the money to finance terrorism?

[gVOR08]

Oh survivors would pose a threat. A threat to Trump and Hegseth's narrative.

[Flight-ER-Doc]

A lie is half-way around the world before the truth gets it's boots on.

[TwelveInchPianist]

"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."

Certainly true. Unless there's more to the story that what's been reported, referring to "the defense secretary’s order to leave no survivors." is pretty bad.

That said, the rest of it is clearly illegal.

[David Nieporent]

Certainly true. Unless there's more to the story that what's been reported, referring to "the defense secretary’s order to leave no survivors." is pretty bad.

The story reported that he told them to kill everyone. That seems pretty unambiguous. Of course the story could be mistaken, but continuing to pretend that more is needed is bizarre.

An exoneration of Hegseth — based on the reported facts — would require that an admiral decided on his own to murder survivors. I find it a bit more plausible that a talk show host/grifter/politician gave the order than that it was done unilaterally by an officer.

[bloocow2]

I can certainly believe that he ordered it. That's his warrior ethos: ordering someone to press a button to kill half a dozen men on a boat in the middle of nowhere. What a man!

[Scooter]

I'm sure you do believe it.

You probably also believe J D Vance f***ed a couch and that Trump called Neo-Nazis in Charlottesville, VA 'Very fine people."

LMAO

[TwelveInchPianist]

"The story reported that he told them to kill everyone. That seems pretty unambiguous."

You don't think an order to kill everyone directed at a legitimate target presupposes that the target stays legitimate?

Do you think that every order has to be followed by "...unless the target becomes hors do combat or otherwise off limits during the engagement..."?

"An exoneration of Hegseth — based on the reported facts — would require that an admiral decided on his own to murder survivors. I find it a bit more plausible that a talk show host/grifter/politician gave the order than that it was done unilaterally by an officer."

It's possible Hegseth conveyed that he wanted the survivors killed.

But we probably agree that such an order would be illegal, that a person of ordinary sense and understanding would know it was illegal, and that the admiral knew that it was illegal, so it's not looking good for the Admiral either way.

[Riva]

“Facts” from the WP. Uh huh. Quite a deluge of coordinated BS, from the seditious pieces of shit democrat congressmen to multiple billboards encouraging mass insubordination. Now WP bs. Sort of color revolutionary, dare I note. And now we’re also seeing leftist targeted leftist political violence. This is the problem, not Sec. Hegseth or administration policy.

[David Nieporent]

Bot programmed to repeat nonsense over and over and over again.

[Riva]

Rather odd comment coming from someone spewing out the same nonsense insults over and over like some robot asshole. A particularly stupid robot asshole, I should add.

[bloocow2]

The thing that gets me about this whole thing is that, if the government is so sure that these boats are carrying drugs and drug dealers, why not intercept them with the coast guard? You know where they are! You could make a big show of arresting them with a giant haul of drugs!

But no, better to just kill them, it saves them the need to provide, say, evidence. They can just make up any old story, and their bootlickers (including some in this very thread!) will lap up anything they say.

[Stupid Government Tricks]

Exactly. These attacks are entirely gratuitous, and I call them cold-blooded murder. There is zero public proof of who they are, where they are going, and what they are carrying. Claims of secret military intelligence are no more credible than the numerous proven cases of fabricated informants justifying SWAT raids which kill innocent people.

[Stupid Government Tricks]

I'm going to play devil's advocate here, only because I have seen no one else advance this parallel.

In WW II, some fighter pilots gained reputations for shooting airmen in parachutes. It was most common, sez my fuzzy memory, when the parachutists were over friendly territory and would return to combat. But this was mostly condemned as dishonorable, regardless of where.

(There is one story of an airman hanging loose in his harness, playing dead, and when a Japanese fighter zoomed in close and slowed down to look, the airman shot the pilot with his service pistol.)

There have also been cases of submarines surfacing to shoot sinking survivors on the same principle, when near any enemy coast and likely to be picked up and returned to combat. Other such cases were nowhere near being rescued.

The Battle of the Bismarck Sea involved sinking Japanese troop ships 50-100 miles from the nearest Japanese territory, and the attacking airplanes shooting up survivors for the same reason, even though Japanese ships and land forces were not available to rescue them. Japanese sinking survivors were also famous for refusing Allied rescue.

All in all, there is some precedent for killing survivors who could potentially return to combat.

I wonder how many commenters will go out of their way to misunderstand this comment.

[bloocow2]

I understand this point. But I'm pretty sceptical that it applies in this case, not least because this doesn't feel at all like "combat" to me. You don't know who these guys are, or what they're doing, or what they would do if they somehow managed to get back to land.

[Darwinnie]

When does Congress find its backbone, straighten up, and impeach Hegseth? I think this is clearly impeachable; it’s a fucking war crime.

[Currentsitguy]

I just wish everyone, including this Administration, would talk about the real issue at hand instead of focusing on the supposed drug smuggling angle which is secondary at best. There are Chinese, Iranian, and Russian advisors operating in Venezuela, medium range missiles capable of reaching at least the southern portion of the US have been installed and a small island is being utilized by invited trainers from Hezbollah to teach Venezuelan forces.

That is a legitimate national security concern regardless of who sits in the Oval Office and is strong grounds alone to launch military action. Make that case about the need to react. Kennedy did that during the Cuban Missile Crisis and he was right to do so. It becomes increasingly difficult for even those most dubious of US military action to argue when it directly threatens America directly. After all, the Monroe Doctrine isn't some new cockamamie legal theory.

If drugs are the issue I'd make the case that the Cartels in Mexico are a far greater and more immediate threat to Americans and I'd personally back their destruction by force but the White House isn't making that argument.

[dwb68]

"Chinese, Iranian, and Russian advisors operating in Venezuela"

There have been rumors of this for decades. There are even a few Clancy novels covering this.

I don't disbelieve it, but the evidence is a little thin to nonexistent.

[dwb68]

"to introduce into the philosophy of War itself a principle of moderation would be an absurdity." Carl von Clausewitz. On War.

Shorter version: Alls fair in war. In a conflict, the side most willing to go to the extreme wins. The goal of war is to make your enemy disarm and submit.

It's more than little bit ironic that Trump is getting (has got--past tense?) us into a war with Venezuela after campaigning on getting us out of wars. "America first" seems to have become "The Americas First"

Mostly I don't support getting to a hot war with Venezuela or the narco-cartels--primarily because they are willing to torture, rape, and kill people and will go to extremes we won't, and therefore win.

I don't support it, but arguing about process and murder and so much legalese won't persuade people either. Nobody will give a hot god damn some narco mules got blown out of the water. Cartels dont play by the "rules" and everyone knows it.

Its never enough to be against something: you also have to have an alternative. Odds are now that the next administration will continue these strikes, just as Obama continued Bush policies.

Venezuela, Mexico, Columbia, mostly they are run by the narco cartels.
What is the alternative answer to crushing the narco cartels supporting Mexico and Venezuela?