"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.

[Katall]

Seemingly, Secretary of Defense Hegseth has not denied that he gave the order.

[Ghost of Patrick Henry]

He unequivocally denied it. Stop lying.

[Katall]

Nope. On X, he alleged the repoerts were lies, but did not say anything like 'I did not order that there would be no survivors.' To me, it is not a denial.

“As usual, the fake news is delivering more fabricated, inflammatory and derogatory reporting to discredit our incredible warriors fighting to protect the homeland,” not a denial.

If it were me who was accused, I would unambiguously deny it, we're it untrue.

Hesgeth was a Fox News employee, he should know how to communicate clearly.

[David Nieporent]

And his spokesperson said, "The narrative is false" rather than "the facts are wrong." Not one simple, straightforward, "I never ordered that survivors be killed," let alone, "The U.S. didn't kill the survivors."

[Voodoo]

Do you know what the words "unequivocally," "denied," or "lying" mean? It appears you do not.

[decline to state]

Sure. Maybe it is all made up.

But how about if we make use of this moment of ambiguity.

If it turns out to be a lie, I'm willing to admit that Hegseth and the commander who gave the order have been slandered (as least as commonly used if not necessarily legally).

If it turns out to be completely true, are you willing to admit it was murder and probably a war crime?

Or do you need time to figure out how you'll defend it?

[hobie]

Bro, I'm willing to admit to anything. Right now it looks like they had soldiers murder people. Where we go from there, I have no idea

[thesafesurfer]

Are you prepared to quit spreading gossip and completely unsubstantiated innuendo relying on anonymous sources, and only pass on the truth based on cross examined statements supported by verified evidence?

[Voodoo]

You are a true hero. I cannot fathom another way to describe someone who, like you, will only "pass on the truth based on cross examined statements supported by verified evidence."

Hero. Bravo.

[Darth Buckeye]

I don't trust the Post's reporting. If Hegseth had given such an order, the military staff should have either (1) told him we can't do that; but here is what we can do, or (2) assume that he intended his orders to be carried out to the extent that the law permits and act accordingly.

Anyone here even been given an illegal order? And I don't necessarily mean in the military setting. Civilian officials can give illegal orders to their subordinates. Usually it is because they don't know what the law allows. Our job as lawyers is to tell our clients or our superiors what the law allows; our job is to keep our clients from taking illegal actions. If they won't listen to us, quit.

I remember getting an illegal order. I objected and said why it was illegal. I proposed an alternative course of action that was legal. There was some drama, but eventually my superiors agreed to do it my way. It worked perfectly.

[thesafesurfer]

"I don't trust the Post's reporting"

HEAR! HEAR!

[AmosArch]

Is there a law in war that says you're forbidden to kill anyone who isn't an immediate threat? Or that there should be no finishing strikes? I've never heard of that one to be honest.

I'm sure even under Biden and Obama, countless men were killed after they ceased to be immediate threats or when they were never threats to begin with but nobody was around who gave a shit. Like some boy in the middle east who never even raised an arm against an American in his life before being droned . I wonder how many 'atrocities' we would have uncovered if we cared back then.

[David Nieporent]

1) This isn’t a war. You can tell, because Congress hasn’t declared war.

2) In actual combat, you can kill people who pose a threat; that threat need not be immediate. (E.g., you don’t need to wait until they point a weapon at you.) But you cannot kill people who have been rendered hors de combat. The literal canonical example of such people are survivors of a sinking ship. It is a war crime to kill such people, or soldiers who have surrendered, or soldiers too injured to fight.

[AmosArch]

>>>>>>>>>>>>>>>>>>>>
r soldiers who have surrendered,
>>>>>>>>>>>>>>>>>>>>>

there is no evidence they surrendered.

>>>>>>>>>>>>>>>>
l example of such people are survivors of a sinking ship.
>>>>>>>>>>>>>>>>

So the US has saved every single enemy combatant who has been shipwrecked in modern times until trump? I'm pretty sure that isn't true

[Absaroka]

"there is no evidence they surrendered"

IANALawOfWarE, but from reading a lot of military history the exceptions to the general rule that enemy combatants[1] are fair game are:

1)They are surrendering
2)They are in your power, unable to resist (wounded, for example)
3)They are descending via parachute but are not paratroopers
4)They are in the water after their ship has sunk[2]

One can quibble about the wisdom of those rules - if a Spitfire pilot is parachuting into Kent, he will probably be back fighting in short order, so why shouldn't the Bf109 pilot shoot him as he descends. You can shoot an infantryman who is running away, after all. But whether you agree the rules make sense, they are the agreed upon rules.

"So the US has saved..."

No, we haven't. There were a couple of US submarine captains who killed the Japanese survivors of ships they had sunk. Given that we executed a U-Boat captain for doing the same, it's not a proud chapter of American history.

[1]Smugglers aren't, but let's go with it.
[2]I expect there is some quibbling around edge cases - if you are wading ashore, rifle in hand, after your landing craft sinks I doubt you get a pass. But clinging to wreckage in the open sea isn't one of the edge cases.

[AmosArch]

The boat and the men in it were always 'helpless' before the US military and effectively at the same level of mercy intact, blown apart, or carrying a thousand fully loaded machine guns.

For 'objective' legal analysis it seems to be a emotional distinction without a meaningful difference. Okay lets make the boom really big next time so we get them all in one shot instead of two...would that make things better?

[ReaderY]

It’s an interesting argument. When we attack unarmed fishing boats, they’rw always helpless against us, so it doesn’t matter whether they’re on the boat or in the water.

Interesting how the cover story that these were supposedly armed and dangerous narcotraffickers gets discarded the minute it becomes inconvenient.

[Darth Buckeye]

During WW1, the Australian cruiser HMAS Sydney gunned the German cruiser SMS Emden into a burning hulk; all of its guns had been knocked out of action. The ship beached itself. Sydney radioed if they would surrender. Emden could not respond because their radio was destroyed. So Sydney started shooting at the crew as they were abandoning ship. One of the crew saw that the German flag was still flying and lowered it. The Sydney finally stopped firing.

I thought that was outrageous, but the rules of war were such that theoretically Emden could have taken some hostile action against Sydney as long as it had not struck its colors.

[OpinionsVary]

There's a difference between not actively saving and actively killing. The second strike is the latter. The US literally executed the nazi Heinz-Wilhelm Eck for doing this. Not for sinking a ship in the first place but for killing the survivors clinging to the wreckage afterwards.

[AmosArch]

We should let them get eaten by sharks...much more humane

[Absaroka]

The DOD manual linked below, page 453:

"After each engagement, parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded, sick, and shipwrecked at sea, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled."

[AmosArch]

Sorry Reaper drone optional premium level trim package of several man pickup. Business class or higher breakfest, lunch, and dinner and free dropoff at an international airport or one of 200000 participate bus stops of your choice package is still in the lab.

[That ain't my name]

This only applies to people capable of doing it. An airplane, obviously, is not. A ballistic missile unit is, obviously, not.
There is a lot of history, context, and jargon behind the laws of war. If you actually want to try to understand them, and not act like a sovereign citizen claiming he doesn't owe taxes because he once read the Constitution, then you should study some of that first.

As an example, did you know that it is standard practice for the US - and all other countries - to attack and kill unconscious and unarmed enemy soldiers?

Yeah, night attacks while the enemy is sleeping have been considered tactical successes for all of history.

[Purple Martin]

Amos, tell that to Harold Bray, the last living crew member of the 316 sailors who survived the sinking of The Indianapolis by Japanese torpedoes in the Pacific Ocean on July 30, 1945.

Or better yet, tell it to the nearly 900 others who also survived the attack, but not the following four days and five nights in the water before rescuers arrived.

Ask them how they died.

[AmosArch]

Was Harold Bray intentionally carrying poison to kill many hundreds or thousands of noncombatant children? Then after seeing the last several boats before him doing the same thing explode due to a man he knew had the power to send a missile anywhere on earth at the push of a button was dumb enough to continue to go through with it anyway?

[Purple Martin]

Ask Harold Bray yourself, and make sure to tell him Trump has the proof! The exact amount of proof he's provided on the people he's ordered the military to summarily, extrajudicially, execute.

Same way and the same amount of evidence he could say equally justifies your summary extrajudicial execution by Seal Team Six. After all, Laura Loomer could tell Trump she dreamed you're an insurrectionist, and Trump endorsed Senator Tom Cotton's saying the 101st Airborne Division should be used to quell protests, with no quarter given to insurrectionists.

By the way, there's little doubt some of the boats blown up were engaged in cocaine smuggling. Makes no difference if you're in favor of the rule of law. Summary extrajudicial execution of civilians who are not a threat to our forces is, in a time of some sort of acknowledge war, a war crime, and if not in a time of war, simple murder.

I just don't want it to become accepted that Trump can, without consequence, order your murder for the seditious act of being insufficiently enthusiastic about his death threats to members of Congress.

[Stephen Lathrop]

Purple Martin — Have you given serious thought to the question whether SCOTUS already authorized your last-paragraph scenario?

News figures and commenters on this blog keep talking and writing as if SCOTUS holds in balance some kind of constraints on presidential power. Who supposes a majority of the justices think that, or even wants to think it?

The most urgent focus of the Trump/MAGA emergency remains the problem to figure out what to do about the Supreme Court. What would make anyone suppose this SCOTUS is not ready to authorize by non-response some kind of mid-term election coup? Justice delayed is their specialty. In election cases—more than in other cases—delay and deny become synonymous.

Folks concerned that Trump is getting the nation accustomed to troops in the streets ought to be even more concerned about SCOTUS getting everyone accustomed to non-response. While an election looms, there needs to be some means to get full engagement and prompt decisions from the Court.

I am not seeing that means. Worse, I see little willingness from statesmen or lawyers to say publicly that such a means is lacking. This Court shows repeatedly that it remains evasive, while judging itself both all-powerful, and free of any obligation to deliver timely defense of American constitutionalism. Why repose hope and trust in a Court gone toxic?

[David Nieporent]

there is no evidence they surrendered.

There's no evidence that they were wearing underwear, either. What does that have to do with this discussion? They were sailors on a ship that had been sunk. That's the relevant category here. (Note that they couldn't have surrendered because they weren't combatants in the first place.)

So the US has saved every single enemy combatant who has been shipwrecked in modern times until trump? I'm pretty sure that isn't true

I'm quite sure it isn't. Again, what does that have to do with anything? We're not talking about failure to rescue. We're talking about murdering them.

[David Nieporent]

To be clear, one is supposed to rescue if one can; my point is that the crime we are discussing here is not the sin of omission of failure to rescue. We are discussing just outright murder.

[y81]

Congressional authorizations are purely a matter of domestic law, and do nothing to make the (international) laws of war more or less applicable.

[thesafesurfer]

The truth requires sources on the record who are cross examined and supported by verified evidence. Charges based on gossip, hearsay, and innuendo do not make the truth less applicable.

[David Nieporent]

Convenient how you have picked a standard which means that Trump can never be criticized.

[NvEric]

You're a joke, fool, and idiot.

[That ain't my name]

You should stick to whatever it is you think you do, because your attempt to discuss the laws of war are dumber than what you usually say.

You cannot surrender to something that cannot accept it. For example, you cannot surrender to an airplane. Period.

The "follow-up strike" is a standard of military action pre-dating World War 2, and continuing through the modern era, including Bush, Obama, and Biden drone strikes. If you actually want to learn something about the topic, you can read up on the public arguments about drone strikes; there are more than 20 years of discussion on that topic, in a dozen languages, that you should familiarize yourself with before you begin to argue about a topic you show you currently know nothing about.

[Darth Buckeye]

I put the blame firmly on the shoulders of Joint Special Operations Command chief U.S. Navy Admiral Frank “Mitch” Bradley. He was the senior officer who gave the order to conduct the second strike, if the Post story is to be believed. If Hegseth ordered that no quarter be given, Bradley should have told Hegseth that such would be an illegal order and that he would follow the order as far as he could lawfully do so. If Hegseth insisted, then Bradley should have resigned.

[Lee Moore]

You cannot surrender to something that cannot accept it. For example, you cannot surrender to an airplane. Period.

Well, semi-colon perhaps. You can surrender to an airplane, but it takes a bit of doing. Though if you want to do it in style, surrender to an airplane that is out of ammo !

https://en.wikipedia.org/wiki/HMS_Graph

There's also this interesting paragraph :

The German crew remained on board U-570 overnight; they made no attempt to scuttle their boat as Northern Chief had signalled she would open fire and not rescue survivors from the water if they did this. (Northern Chief's captain, N.L. Knight, had been ordered to prevent the submarine from being scuttled by any means

which underlines the point that enemy combatants may be able to damage your military objectives even if they are unable to fight you. eg they can scuttle their ship that you want to capture intact, they can destroy their code books, they can blow up their ammunition dump and so on.

A strict rule that you may not harm the enemy when they are no longer in a position to shoot you or bomb you or torpedo you would be....nuts.

[Purple Martin]

A hint. Read (Hoover Institute conservative) Goldsmith's piece (no paywall), for direct, detailed, answers to your question, backed by legal cites.

But you won't do that, will you? So, I'll check back in a couple hours and quote the relevant facts for you. (But hey, surprise me.)

[y81]

I read the Goldsmith article, but unfortunately the DOD Law of War manual seems to be inaccessible online, either because it is suddenly getting a lot of traffic (most likely) or because the Trump Administration is trying to hide it (also possible). Without reading the sources Goldsmith cites (in some cases with multiple ellipses), it is impossible for me to make an informed judgment.

[Absaroka]

"the DOD Law of War manual seems to be inaccessible online"

Here it is. If it moves that page is archived at archive.org.

[y81]

Thanks.

[Absaroka]

Page 448:

"7.3 RESPECT AND PROTECTION OF THE WOUNDED, SICK, AND SHIPWRECKED
Members of the armed forces and other persons mentioned in Article 13 of the GWS and the GWS-Sea, who are wounded, sick, or shipwrecked, shall be respected and protected in all
circumstances. Such persons are among the categories of persons placed hors de combat; making them the object of attack is strictly prohibited."

[Lee Moore]

Dumb rule. That an enemy combatant may be "wounded" does not necessarily prevent him from killing you. It depends on the wound. Walking wounded have been engaged in combat from the beginning of time. Even some sedentary and prone wounded. Ditto sick. Half the troops landing on D Day were suffering from seasickness.

Wounded and sick combatants are hors de combat, if and so long as they are, in fact, hors de combat. Whatever dumb rules the DoD may promulgate.

[Absaroka]

"Whatever dumb rules the DoD may promulgate"

Just for clarity, the dumb rules aren't just something DoD pulled out of it's posterior - they were an international treaty agreed to by the US and ratified by the Senate. As the constitution says:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ***and all Treaties made***, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

So discussions about whether some particular treaty is or isn't smart are interesting, along with e.g. a discussion about whether the Second Amendment is or isn't smart. Which is interesting to me because many of the folks who don't see much of a need to obey treaty obligations here do like other parts of the constitution strictly obeyed.

If someone in a lifeboat is shooting at you, you can shoot back, page 449: "To be considered “shipwrecked,” persons must be in need of assistance and care, and they must refrain from any hostile act."

[thesafesurfer]

There is a real possibility you are just stupid.

[AmosArch]

By laws of war I'm talking more about long standing truly widely accepted binding international principles . Not just rules of engagement which change all to time and/specific things nobody actually cares about.

The 'shipwrecked' provision everyone has been squawking about, has precedent to officially ignored, like Bush II did. And plenty of Western nations including Europe unofficially ignored them many many times. And really what sense does it make that we carve out unique treatment if your in the water whereas on land you can just be standing around doing nothing and still get droned? So Trump is hardly in uncharted territory as something new and uniquely terrible. Heck, we're not even sure Hegseth gave the direct order to liquidate the poor surviving drug smugglers.

[Absaroka]

"And really what sense does it make that we carve out unique treatment if your in the water whereas on land you can just be standing around doing nothing and still get droned?"

If it doesn't make sense, we probably shouldn't have ratified the treaty agreeing to those rules.

[David Nieporent]

I don't have any idea when you think George Bush gave an order for us to blow up a ship and then kill the survivors.

[AmosArch]

He waved a wand and said the same protections people are squawking about today don't apply to a set of people. If its the most important thing in the universe to you guys that trump not access this wand again why didn't you do something about it with the 3 terms you've had since then?

[Randal]

What wand? Are you on crack? Are you who Trump is trying to save from heinous international drugs and poisons?

[Stephen Lathrop]

Randal — What AmosArch does not care about, AmosArch asserts as proof that nobody cares about.

[Purple Martin]

From Goldsmith's article, the direct quote is

Section 5.4.7 of the DOD Law of War Manual says:

Prohibition Against Declaring That No Quarter Be Given. It is forbidden to declare that no quarter will be given. 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. This rule is based on both humanitarian and military considerations. This rule also applies during non-international armed conflict.

Of course, that's if you believe Trump saying this is justified as a wartime action by the Commander in Chief. If not, it's just an order for the military's Seal Team Six to conduct nonjudicial summary execution of civilians, a simpler crime.

As he continues his quest to turn himself into Vladimir Putin and America into Russia, Donald Trump may be making his future international travel (plus that of SECDEF Hegseth and SOCOM Commander ADM Frank Bradley) more like Putin's...now quite limited, as he is subject to arrest in most countries countries per war crime charges from the International Criminal Court (ICC) at The Hague.

Trump's use of military force to kill civilians without any legal justification and outside of any wartime action, is a definable crime, for which any wronged country signing The Rome Treaty of the ICC can bring criminal charges before the ICC.

In the future, Trump's Qatar Force One flights to Scotland for golf may not be possible—but instead limited, as currently are Putin's, to Alaska and Moscow (OK, plus China and India. Also North Korea and a few other smaller countries).

https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and

[Jack Jordan]

Amos, a link to Goldsmith's full article was provided by Adler. It's worth reading.

In addition, a federal statute seems to govern even if Trump's claims were true that his victims were, at some point, enemy combatants. "War crimes" are defined in 18 U.S. Code § 2441 (https://www.law.cornell.edu/uscode/text/18/2441). Subsection (b)(2) confirms that the following can be found guilty: any "member of the Armed Forces of the United States" or any other "offender" (e.g., Trump or Hegseth) who "is present in the United States, regardless of the nationality of the victim."

War crimes include the following. An offender is guilty of "Murder" if he "intentionally kills, or conspires or attempts to kill" or even if he kills "unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause."

An offender is guilty of "Intentionally causing serious bodily injury" if he "intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war."

[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."

[Riva]

And you know what newspaper has "zero" real evidence? At least none that could bear the light of day. That would be the WP. With more bullshit from anonymous sources. It's always bullshit from anonymous sources of people, from the Russian collusion fraud to this latest bullshit propaganda.

[DDHarriman]

They have evidence. Testimony from "people familiar with Hegseths thinking"

[Paladin_44]

Hegseth thinks?

[Riva]

The WP must have psychics on staff, or is that telepaths?

[thesafesurfer]

Who? Name them.

[Ken Arromdee]

No, the laws of war don't prohibit killing people who can't fight back. They prohibit killing people who have surrendered and thus aren't fighting back, but the fact that an enemy soldier is sleeping in his tent, or retreating, or is in a place where you can hit him with a sniper round or some other sneak attack, or is otherwise indisposed doesn't mean you can't kill him.

[Randal]

Uh, look up "hors de combat." No, you can't eat them, although who knows, Hegseth might.

[Ken Arromdee]

I looked it up. You are wrong.

A person is hors de combat if:
(a) he is in the power of an adverse Party;
(b) he clearly expresses an intention to surrender; or
(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;

Hors de combat doesn't apply to enemy soldiers that are healthy and free to act, but can't fight back because they can't get to you and they don't see you coming.

[Jack Jordan]

A federal statute seems to govern even if Trump's claims were true that his victims were, at some point, enemy combatants. "War crimes" are defined in 18 U.S. Code § 2441 (https://www.law.cornell.edu/uscode/text/18/2441). Subsection (b)(2) confirms that the following can be found guilty: any "member of the Armed Forces of the United States" or any other "offender" (e.g., Trump or Hegseth) who "is present in the United States, regardless of the nationality of the victim."

War crimes include the following. An offender is guilty of "Murder" if he "intentionally kills, or conspires or attempts to kill" or even if he kills "unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause."

An offender is guilty of "Intentionally causing serious bodily injury" if he "intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war."

[TwelveInchPianist]

"Uh, look up 'hors de combat.' No, you can't eat them..."

Or have sex with them.

[AmosArch]

The AP literally confirmed that they were smugglers

https://apnews.com/article/trump-venezuela-boat-strikes-drugs-cocaine-trafficking-95b54a3a5efec74f12f82396a79617ea

I posted this earlier and people here are already pretending that they never saw it.

[David Nieporent]

The AP literally confirmed that they were smugglers

The AP literally confirmed that a small handful of the people murdered were smugglers.

[Life of Brian]

Look, when the best spin you can get into your headline is "more nuanced," it's clear enough you know at that point there's not going to be a more compelling story around the corner that you should wait for.

Or did I miss the follow-on article where they purported to demonstrate with a straight face that any of the others were not indeed smugglers?

[David Nieporent]

I think you're confused on who bears the burden of proof when he orders someone killed.

[Life of Brian]

As I've said for months now, this has nothing to do with burden of proof or any other distractive chaff you may wish to fling in the air.

This is about basic factual information that the media machine has an immense vested interest in unearthing and assembling, and which presumably the families of all these supposed innocent fishermen would be similarly motivated to scream to the heavens.

Instead, all we get is "well, it's complicated" on just a handful, where they've managed to unearth some sort of poignant factoids that they feel are sufficient to OFFSET the fact that everyone acknowledges they were drug smugglers.

That's immensely telling, no matter how much spin sauce you may try to ladle on top.

[David Nieporent]

"They didn't prove it." "This has nothing to do with burden of proof."

[Life of Brian]

Don't you eventually get tired of working so hard trying to twist and contort crystal-clear words and concepts into false-choice straw men? It has to be draining.

[Purple Martin]

Amos, yup. There is, of course, little doubt some of the go-fast boats blown up were engaged in cocaine smuggling…as has, of course, been the case for decades. The U.S. practice legal under U.S and international law has been, of course, to interdict them, seize the cargo, and arrest the crew (the well-practiced Coast Guard process is to disable the tall outboard engines with a .50-caliber rifle round from a sniper in a helicopter, and crew/cargo picked up at their leisure).

That’s of course, if you’re at all interested in combating drug trafficking. If that isn’t any particular priority of a president, well…
https://www.foxnews.com/politics/trump-plans-full-complete-pardon-former-honduran-president-convicted-drug-trafficking

But, of course, for one in favor of the rule of law, all that makes no difference. As I mentioned earlier, summary extrajudicial execution of civilians (even criminals) who are not a threat to our forces is, in a time of some sort of acknowledged war, a war crime. If not in a time of war, it’s simple murder.

I just don't want it to become accepted that Trump can, without consequence, order your or my murder for the seditious act of being insufficiently enthusiastic about his “DEATH” threats to members of Congress (perhaps you should start using more ALL CAPS?).

[Stephen Lathrop]

bloocow2 — A government that lies to its citizens, and likewise to its courts. Courts ruled by a Supreme Court, which likewise tolerates the lies.

[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?

[Riva]

I'm not following how there is any real evidence that the WP article is actually based on any real facts. It's just more bullshit from anonymous sources.

[Stupid Government Tricks]

You don't have any evidence that the government is telling the truth either. Usually it's innocent until proven guilty.

[Social Justice is neither]

And who is being accused of wrongdoing? Yes both sides are shit at revealing the truth but it is WP making a baseless allegation.

[Randal]

The smugglers, dumbass.

[Josh R]

WTF does your reply have to do with my comment?

[Riva]

Well little troll shit, if we are, as you premise your comment, "[a]ssuming they are doing what Trump claims they are," then we must assume the accuracy of the intelligence upon which these boats were targeted, intelligence that provided evidence that the vessels were operated by narco-terrorists and drug cartels associated with state actors.

As for my comment, given that the hysteria in this comments section is essentially based on another bullshit made up story from the WP based on more anonymous sources familiar with the matter, I thought it fitting to point out if you're actually interested in understand the circumstances.

[Josh R]

Citation for when Trump said what terrorism they have engaged in?

[Riva]

Well my sealioning friend, you based your initial tantrum on assumptions, but now you want cites? The Department of War has issued statements and so has the WH. They’re not hidden so feel free to consult them at your leisure. As for the details on specific intelligence, even if I were privy to that, I certainly wouldn’t pass it on to a sealion troll.

[Josh R]

My assumptions gave Trump the benefit of the doubt (for the sake of argument) on what I am aware he has claimed. But, I am not giving him the benefit of the doubt for a claim I am not aware he has made. I am open to evidence though.

[Krayt]

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?

You are correct!

Come with me to the days of yesteryear. It's the 1990s, Bill Clinton is president. There are occasional big terrorist attacks even before 9/11. The Federal building. The basement bombing of the WTC. The feds jumped into action, so to speak, like they always do!

They passed a law allowing increased surveillance of terrorist activities. This made civil libertarians and others nervous, but they swore it would be used only for terrorism.

They immediately used it against drug runners. When pointedly asked at a press conference how they justified this, they stated ha ha, the law doesn't actually say "terrorist only". We merely said we'd only use it on terrorists.

And specifically, they never bothered to try to rely on the sophistry used by both parties from time to time, that drug smuggling was akin to terrorism, or a kind of terrorism.

They never gave up that emergency power. How's it working, as intended, or as abused?

[Stephen Lathrop]

Krayt, you seem uninterested to notice that commentary here is vociferously against continuing abuses. Why do you never seem to join others who demand action against bad practices you assert are so pervasive that all parties participate in them?

[Joe_dallas]

Stephen Lathrop 1 hour ago
"Krayt, you seem uninterested to notice that commentary here is vociferously against continuing abuses."

Why no prior commentary "against continuing abuses" whether it was happening on land or at sea dating from the Obama administration or the Biden administration ? Defend the prior silence due to whataboutism?

[Commenter_XY]

Try reading the EO(s).

[Ghost of Patrick Henry]

They have been lawfully declared to be terrorists.

[Josh R]

Citation (and on what basis)?

[DDHarriman]

They are not state sponsored, they are not narco terrorists, and they are not smuggling anything

Do you have support for this claim?

[David Nieporent]

That wasn’t my claim. Try being honest and not cutting my sentence in half.

The U.S. government’s own intelligence assessment — revealed earlier this year — was that they’re not state sponsored. There’s no terrorism involved if they are drug smugglers; it’s a commercial enterprise. And their boats were nowhere near the U.S. and couldn’t even reach the U.S., so they couldn’t be smuggling anything here.

Also, cocaine is a recreational drug, not “poison.”

[Life of Brian]

Also, cocaine is a recreational drug, not “poison.”

Holy snuff, Batman! I suppose Eskimos live in solidified aqueous residences rather than igloos?

[Randal]

According to the administration, Eskimos live inside frozen poison.

[Drewski]

Eskimos don't really exist. Inuit mostly live in houses or apartments, although a lot are homeless. Anyone who passed grade school could tell you that.

[Stephen Lathrop]

Drewski — I prefer to bypass stuff which, "anyone who went to grade school," can tell me, to concentrate instead on more interesting accounts. For instance:

Sacagawea's son, Jean Baptiste Charbonneau, lived for several years among German nobility.

In 1823, a German nobleman and explorer named Duke Paul Wilhelm of Württemberg met Jean Baptiste in the American West and was impressed by the young man. The Duke invited Charbonneau to join him on his return to Europe.

Life in Europe: Jean Baptiste lived in the Duke's castle in Württemberg (Germany) for six years, from 1823 to 1829.

Education and Culture: During his time there, he received an extensive education, living among royalty and becoming fluent in four languages: English, French, German, and Spanish. He was also known to be a talented violinist and fond of Shakespeare.

After his time in Europe, Jean Baptiste returned to the American West in 1829. He used his diverse skills and education to become a respected frontiersman, working as a:

Fur trapper and mountain man

Wilderness guide for significant expeditions, including the Mormon Battalion

Alcalde (mayor/magistrate) in a California town during the Gold Rush

Gold prospector and hotel clerk

His life spanned two vastly different worlds, from being an infant on the Lewis and Clark Expedition to mingling with European aristocracy and finally living out his days in the American West.

That capsule actually abridges the full character and complexity of Jean Baptiste Charbonneau's life. For a further taste see the Wikipedia article.

I think happenstance is an under-represented factor in most accounts of human experience. Because of that, we lose focus on how intricate and unexpected history might strike us if we knew it all. My advice to anyone who wants to study the historical record, instead of just to read authored accounts, is, stay ready to be surprised.

Another example: Howard University in Washington, D.C, was founded by General Oliver Otis Howard, who fought at Gettysburg. But then more notoriously, after the Civil War in 1877, Howard pursued Chief Joseph and his tribal band—men, women, and children—across the toughest terrain in the American West, during the Nez Perce War. As it happened, the famously eloquent Joseph ("From where the sun now stands, I will fight no more forever.") was a pre-war acquaintance of Howard, and like many others of Joseph's band of Nez Perce, had been closely and amicably acquainted with white people. On both sides, people who were acquaintances were shooting at each other during the Nez Perce War, just as they so often did during the Civil War.

Howard University stands today as a monument to a humane but conflicted war hero, and professional soldier. Howard had somewhat tarnished his post-Civil War career prospects by advocating entitlement to reparations for blacks displaced during the Civil War. His campaign to get Howard University going was another aspect of that.

Incidentally, Howard fought both Gettysburg and Chief Joseph's War as a one-armed man, having lost his right arm in the Battle of Fair Oaks in 1862. I wonder if Pete Hegseth's imagination of martial vigor is capable to extend that far—to leading a horseback traverse of Hell's Canyon, and then on through the trackless sea of mountains which fills central Idaho. How about doing it while taking care of women and children? Not our Hegseth?

Stuff like that was routine at the time. Another one-armed survivor of the Civil War, John Wesley Powell, led the first expedition of white people through the Grand Canyon, a few years after the Civil War.

Some of this stuff from the past is not even as much past as many might think. I have myself seen living veterans of the Civil War. And I remember as a child being carried across the Potomac on a one-car ferry. It was rigged to a cable, stretched between sycamores on opposite banks, and powered by river current pressing against a rotatable keel. The name of the ferry was the Jubal Early. It was owned and operated by a character who delivered a fair impression of someone who might have ridden under Early's command. Leastwise, the ancient-looking ferry guy seemed more hospitable to passengers he picked up on the south bank than to those from the north.

[John Rohan]

Also, cocaine is a recreational drug, not “poison.”

The dictionary definition: "a substance that through its chemical action usually kills, injures, or impairs an organism".

Cocaine fits the bill. Fentanyl fits it even stronger. Look I know libertarians are about legalizing drugs but that doesn't mean you need to defend the virtues of taking hard drugs.

[Stephen Goldstein]

". . . until proven guilty."
Hmmmm? And that applies to Hegseth as well as the drug runners, eh?

[Sarcastr0]

Nope. If he were to be killed or put on trial as an individual, sure. As an agent of the government, the burden is on Hegseth.

And he's not even gestured towards meeting it.

[bernard11]

If only someone had a video of the incident that they could release in unredacted form.

Why won't the Post do that?

Oh. Wait. They are not the ones with the video.

[Voodoo]

What is your source of "facts" in this particular scenario?

[gVOR08]

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

[Kenneth Almquist]

In case anyone missed it, there was a strike on Oct. 16 or earlier where there were two survivors who the U.S. military took into custody. The Trump Administration released them. The Trump Administration didn’t have the evidence to charge them with running drugs, and an attempt to hold them as prisoners of war could be challenged in court. (You can’t hold people as prisoners of war if there is no war.) It seems like this time the Trump Administration murdered the survivors to avoid the embarrassment of admitting they had no grounds to hold them.

https://abcnews.go.com/International/trump-2-survivors-us-strike-submarine-ecuador-colombia/story?id=126650540

[Life of Brian]

It seems like this time the Trump Administration murdered the survivors to avoid the embarrassment of admitting they had no grounds to hold them.

That might have been a really compelling argument if "this time" had not been earlier, on September 2.

As it stands, the survivors from the later Oct. 16 strike actually cut against the WaPo narrative.

[Joe_dallas]

fwiw - the WP doesnt not have a stellar record of accurate reporting.

[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

[David Nieporent]

Trump is on video calling neo-nazis in Charlottesville very fine people. I agree later he pretended he was talking about the leprechauns there that only he could see, but that’s not what he originally said.

[wvattorney13]

I don't know why you guys keep repeating this falsehood. He said that there were "very fine people" on both sides and immediately injected the disclaimer that he was not referring to neo-Nazis and that they should be "condemned totally."

You guys take that and spin it to where he was calling them "very fine people" when point of fact that is what he specifically did not do. That's why he wins with the "fake news" narrative.

[David Nieporent]

I use an example similar to one I've used before: suppose Mamdani discussed a Gaza peace negotiation and said, "There are some very fine people on both sides of the negotiating table," and then later said, "I'm not talking about the terrorists, because they should be condemned totally."

Everyone who wasn't a Hamas supporter would say, "WTF is Mamdani talking about? All the people on Hamas's side are terrorists; of course he was talking about them."

[y81]

There are a lot of students at Columbia and elsewhere who are "on Hamas's side," in the sense that they participate in marches chanting "From the river to the sea . . . ." They aren't all terrorists. Are you saying that Yunseo Chung is a terrorist? https://www.columbiaspectator.com/news/2025/03/25/yunseo-chung-cc-26-files-lawsuit-against-trump-amid-threat-of-deportation/

[David Nieporent]

Are you saying that Yunseo Chung is a terrorist?

Is Yunseo Chung at the negotiating table? If not, I wasn't saying that, no.

[Brett Bellmore]

The problem with your example is that it essentially incorporates your conclusion: You posit a situation where we KNOW that everybody on the other side is guilty, and then analogize it to a situation where it was a mixed bag on both sides.

Also, you're comparing, at worst, people who objected to statues being torn down, to people who literally committed a genocidal attack. It betrays a total lack of moral comprehension.

[David Nieporent]

You posit a situation where we KNOW that everybody on the other side is guilty,

Yes, exactly!!!!! You have indeed finally correctly described Charlottesville. It. Was. A. Fucking. Nationally. Publicized. Neo. Nazi. Rally. Thus. All. The. People. Were. Neo. Nazis.

[That ain't my name]

Liar. There were people from all over the political spectrum, including left-wingers. Just because you don't like someone does not mean they are a neo-nazi.

[David Nieporent]

There were people from all over the political spectrum, including left-wingers. Just because you don't like someone does not mean they are a neo-nazi.

It. Was. A. Neo. Nazi. Rally. Really don't know how to explain that any more simply. (There were of course left-wing counter protesters, but Trump said that there were very fine people on both sides.)

[Gaear Grimsrud]

The controversy at the time IIRC was the the destruction of historic monuments that one side found triggering while the other side thought should be preserved. Those were the both sides Trump was obviously referring to and lest anyone misunderstand his comments he immediately excluded Nazis and white supremacists. Any other reading is dishonest.

[David Nieporent]

Those were the both sides Trump was obviously referring to

False. He was not talking about "both sides" of an abstract policy debate. He was talking about the people actually present in Charlottesville at the rally. He expressly said so.

[That ain't my name]

Serious, even Snopes is unwilling to support this claim.

You're delusional or lying. Or both.

[friscoda]

David N,
This is beneath you. He condemned NeoNazis and white supremacists in the same comments. You don’t help your arguments by making up facts.

[Scooter]

Lies are all they have.

SMDH.

[Scooter]

You're a liar

[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.

[David Nieporent]

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

No. And, according to the story, neither did the admiral overseeing the operation. Which makes sense, because if you just wanted the boat to be sunk you'd say, "Sink the boat," not "Kill everyone."

[TwelveInchPianist]

"...because if you just wanted the boat to be sunk you'd say, 'Sink the boat,'"

But you'd still have the same problem. If the boat is an incapacitated smoldering husk with a couple of survivors clinging to it, you have the Admiral saying, "Whelp, he said to sink the boat..."

Based on your reasoning he'd have to say something like, "Engage the boat until it is sunk, the occupants have surrendered, or it is otherwise no longer a legitimate target."

As I've said, I'm assuming for the sake of argument that the occupants are legitimate targets. If only the drugs or the boat are legitimate targets, Hegseth has a problem.

[Randal]

But you'd still have the same problem. If the boat is an incapacitated smoldering husk with a couple of survivors clinging to it, you have the Admiral saying, "Whelp, he said to sink the boat..."

You're not getting it. That, in fact, would be legal... or at least differently illegal.

"Sinking the boat" is the actual legal justification the administration is going with for this whole operation. They're not targeting the people, technically, they're targeting the cocaine, because the profits are being used to fund... terrorism? I guess? Anyway, let's just assume arguendo that that all makes sense and legally checks out.

Then, "sink the boat" is the only legal order. (Well, "destroy the cocaine" would be better, but I think it's safe to assume that the best way to ensure its destruction is to sink the boat.) Killing anyone intentionally wouldn't be covered by the proffered legal justification. But killing people as collateral damage to destroying the cocaine is just the combat equivalent of breaking a few eggs.

So yes, if the order had been "sink the boat," the second strike would've been just as legal as the first. But if the order is "kill everyone," that a) doesn't align with the stated objective and b) becomes patently illegal once "everyone" consists only of two shipwrecked survivors.

In other words, it matters very much legally if the target was the boat or the people.

[OpinionsVary]

I don't think the second strike would be legal even if the boat was the target.

To again raise the case of Heinz-Wilhelm Eck... Eck was a nazi u-boat captain executed for killing survivors. His boat sunk the the greek ship Peleus and, fearing the resulting wreckage field would give away is presence, he ordered the wreckage destroyed with small arms fire and hand grenades. This had the result of directly killing some people and depriving others of the wreckage they were clinging too.

The order here were to sink the wreckage out of (claimed) military necessity - the people collateral damage. But the court found that didn't matter. Killing survivors in the water was not acceptable even when the target was the wreckage. Eck was executed as a result.

Using that example to this case, even if the target was the wreckage of the ship, targeting it in this way was still a warcrime.

[That ain't my name]

Eck is a bad example, because Eck was, in theory, capable of rescuing the men. An airplane is NOT CAPABLE OF THAT.

Eck is also a bad example because he was the ONLY U-boat commander prosecuted for this despite it being a typical practice, and as some later historians (including US military) have concluded, it was a case of "winner's justice".

[David Nieporent]

IT WASN'T A FAILURE TO RESCUE IT WAS A DELIBERATE MURDER.

[Randal]

Well... the question again is whether the wreckage itself is a legitimate target. It probably isn't (in both cases, Eck and Hegseth), but we're all assuming it is for the sake of this conversation.

So the question is, if there's a legitimate target floating in the water, but it happens to have a shipwrecked crewman clinging to it, and you have no way of rescuing the guy, can you legally target the legitimate target?

(It's also doubtful that the two guys in this case were in fact incapable of being rescued since we did rescue people in later strikes.)

[David Nieporent]

As was addressed earlier today, if non-combatants — whether hors de combat or ordinary civilians — are collateral damage in an attack on an otherwise-legitimate target, their deaths are assessed by the proportionality standard: does the benefit of the military objective of an attack outweigh the civilian deaths?

But the scenario in which debris from a destroyed ship in the middle of the sea is a legitimate target with a military objective seems pretty unlikely. ("Boy, it's cool to watch things blow up" is not a military objective.)

And while you were asking in the abstract, it should be noted that (1) this isn't combat so there are no military objectives; and (2) Hegseth has bragged that the actual objective here is to kill, not to destroy military targets.

[TwelveInchPianist]

""Sinking the boat" is the actual legal justification the administration is going with for this whole operation."

Sigh. I've discussed that repeatedly. From the comment you're responding to:

As I've said, I'm assuming for the sake of argument that the occupants are legitimate targets. If only the drugs or the boat are legitimate targets, Hegseth has a problem.

And the other day:

If the target is supposed to be the drugs, an order to kill anybody would be outside the scope of the OLC opinion.

[Randal]

That's not the part of your comment I'm taking issue with. It's this:

But you'd still have the same problem...

I'm suggesting he wouldn't have the same problem. OpinionsVary has a different opinion. But you're just still not getting it.

[TwelveInchPianist]

"But you're just still not getting it."

I don't think there's any "it" to get. You can't kill people under the guise of attacking a disabled vessel any more than you can attack a wounded soldier's rifle, or a parachutist's parachute, or a crew's lifeboat.

[Randal]

Can you attack a non-wounded soldier's rifle? Can you attack the rifle while it's being delivered by civilian contractors?

There's a dimension to this which you're failing to engage with. We know that hors can't be targeted, but can they be unintentional collateral damage? You and Opinions seem to be saying that that's still illegal. I doubt it. It would make wounded soldiers into the ultimate human shields. Just sprinkle some wounded soldiers around military HQ, and it becomes a war crime to target. I don't see how hors de combat can be more protected than civilians.

[Purple Martin]

Randle, "Just sprinkle some wounded soldiers around military HQ..." has long been, itself, a Geneva Convention-defined war crime.

[Randal]

So has sprinkling civilians. The question remains: are hors de combat more protected than civilians?

[TwelveInchPianist]

There are circumstances in which that's probably an accurate description. For example, you probably couldn't destroy a tank where the crew is surrendering, but you could destroy it if there were going to be a couple of civilians killed.

[Randal]

Yeah, maybe. Do you think that applies here? Like, the second strike targeting the boat was illegal, but would've been legal if it instead of two shipwrecked crew, it had been a couple random civilians who'd swum over? That's plausible.

[David Nieporent]

Although I agree with the distinction you are drawing — and it represents the biggest controversy since it's so blatantly illegal — I would point out that sinking the boat is also an illegal order. You can't just go around murdering people just because they're committing crimes.

[Randal]

Totally, that's what I meant by "differently illegal."

[Randal]

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..."?

Not every order, but maybe it would be a good idea for orders that explicitly require killing everybody.

[Jack Jordan]

Pianist, one principle highlighted by Goldsmith's piece is that "Kill everyone" is per se an illegal order. It's tantamount to "Give no quarter."

[TwelveInchPianist]

Yes, that's the assertion. But I don't think it's supportable. I think that reasonable people given an order to "kill everyone" would interpret it to imply caveats about the legitimacy of the target.

Just like an order to destroy any other target. I don't know of any rule that orders have to be explicitly conditions. If someone is ordered to destroy an enemy tank, "unless it surrenders first" is implied. It's not a war crime to issue an order to destroy something without having a bunch of implicit conditions on it.

[Jack Jordan]

Pianist, no matter how you try to shift the burden of leadership, it's on the people whom our Constitution (and national leadership) placed the burden. No matter how lawyers might argue (as you have) that (with the benefit of calm reflection in the comfort of our own homes) military orders must imply constitutional qualifications, that's not what combat leadership means.

Combat leaders are not entitled to hide behind ex post expectations that their subordinates will interpret their orders (issued in combat) consistent with our Constitution. Every combat leader should understand that an order to "kill everyone" or "kill them all" is per se illegal. No combat leader who understood and respected his oath, his mission and our Constitution would issue such an order. No one should believe that any combat leader who issued such a command actually did understand and respect his oath, his mission and our Constitution. We should believe that such a combat leader meant exactly what he said: "kill everyone" or "kill them all."

[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.

[Al S]

Seems a valid point. Not sure why the number of times it was said makes a difference.

[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.

[Randal]

why not intercept them with the coast guard?

Simple. They aren't even heading to the US.

[bloocow2]

Well, yes, this is the obvious answer. The administration didn't want to arrest them because then it might come out that they were, in fact, lying their asses off about who these people were. Can't have pesky witnesses contradicting the official story!

[John Rohan]

How is the Coast Guard going to intercept a speedboat? I am open to correction but I know most Coast Guard cutters can normally go up to 28 kts, some are faster. But that's still not fast enough to catch a speedboat at full throttle.

The CG does have its own speedboats (sort of) but they are small, they don't venture far out to sea, and I assume their fuel is very limited.

[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.

[Carl_N_Brown]

" 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."

We don't. But does military intelligence know who these guys are, what they're doing, and what they would do if they somehow managed to get back to land?

[Davy C]

Article 10 - Protection and care

1. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected.

2. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones.

Article 42 - Occupants of aircraft

1. No person parachuting from an aircraft in distress shall be made the object of attack during his descent.

2. Upon reaching the ground in territory controlled by an adverse Party, a person who has parachuted from an aircraft in distress shall be given an opportunity to surrender before being made the object of attack, unless it is apparent that he is engaging in a hostile act.

3. Airborne troops are not protected by this Article.

- Geneva Convention.

The convention was modified in 1949; I don't think these were there during World War II. Firing on shipwrecked enemies (or ejected pilots) is currently a war crime so long as they refrain from further hostilities. (Or perhaps a regular crime, if there's no war. Take your pick.)

[MollyGodiva]

You are not "playing devils advocate". You are normalizing war crimes.

[Stupid Government Tricks]

You don't know what "devil's advocate" means, do you? Good God you are stupid.

[TwelveInchPianist]

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

There is, but IIUC it's almost always been resolved in favor of protecting disabled individuals. You can't shoot a parachutist even over friendly territory where he certainly will be repatriated.

Now, can you shoot paratroopers abandoning disabled aircraft?

[Davy C]

According to what I quoted, you could shoot the paratrooper. Airborne troops are expressly not protected by the article saying you can't attack a person parachuting from an aircraft in distress.

[TwelveInchPianist]

Fair enough.

[bernard11]

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

No doubt there is "precedent" for every kind of war crime, not to mention plain murder.

That doesn't make them not a war crime.

And anyway, even if "potential return" were an excuse, how were these guys going to return to whatever they were doing? Just pick them up and hold them until you figure it all out, and then arrest them, let them go, whatever is appropriate.

[Jack Jordan]

Stupid Government Tricks, what you described is not precedent in any sense. Governing law now criminalizes or prohibits killing such people (see, e.g., my comment above quoting 18 U.S.C. 2441), so it is irrelevant that previous governing law might not have criminalized or prohibited such killing. It is even less relevant that people who are governed by our laws violated them or committed crimes and merely weren't held accountable. It is even less relevant that people who are not governed by our laws engaged in such killings.

[Darwinnie]

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

[MollyGodiva]

Impeached Trump and prosecute him and Hegseth.

[Commenter_XY]

Ask your Congress-critter to introduce Articles of Impeachment!

[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, in fact I think its likely, but the evidence is a little thin to nonexistent. I haven't heard anything about "medium range missiles." Again, I think it might be true, but the evidence is nonexistent. Maybe the only proof will be when Maduro uses them? Maybe the strikes are a gambit to get him to use them, which would then justify our escalation?

[Currentsitguy]

I am not sure how you make that public without tipping our hat on intelligence and surveillance capabilities. The world isn't a fair place and we have made it plain from almost our very beginning that this hemisphere is off limits to foreign meddling. When Putin publicly announces he is sending a top general to act as advisor I'd think it best to believe him and act accordingly.

Venezuela does not need to be an ally or even a friend, Uruguay is a perfect example of a neutral nation in South America that is not under US domination. What is unacceptable is a Western Hemisphere nation that is client state of an avowed enemy.

[dwb68]

Satellite images of the missiles would be nice.

That doesn't compromise sources and methods.

[MollyGodiva]

Nothing you said justifies war.

[Currentsitguy]

We have every right to be proactive in national defense. If my neighbor is assembling a cannon in their front yard that is capable of being pointed at my house and used, I'd be an irresponsible idiot if I let them continue to assemble it until it's complete. I'd be a fool to not destroy it before they are done.

[MollyGodiva]

"We have every right to be proactive in national defense."

No we don't. Not even close.

[Scooter]

So, we send Obama to the Hague for his actions in Libya.

Cool.

[Currentsitguy]

History is replete with extinct races who died as a people while standing on impossible moral standards. In the meantime brush up on your Mandarin.

[David Nieporent]

That's one of those sorts of statements that's meant to sound profound but is really unmitigated bullshit. Even setting aside the weird claim about "races." Who are all these groups who died because they stood on impossible moral standards? And what impossible moral standard are you talking about here?

[dwb68]

"If my neighbor is assembling a cannon in their front yard ..."

Ahh, that pesky 2nd amendment.

Brandishing/using the cannon is the crime, not owning it.

[JoeFromtheBronx]

A nation can be "proactive" in a variety of ways.

Without going into the details, your original comment touched upon that. So, e.g., a blockade might be justified in certain cases while a direct attack might not be.

We don't have the lawful right (who is saying this, anyway?) to do anything we want. There has to be some reasonable level of proportionality. Certain other things are also not allowed, including harm to innocents in various respects.

As to cannons, self-help would not be ideal there. Unless there is no time, the thing to do is to go to the authorities. And that is the process set up now regarding international self-defense, too.

[Currentsitguy]

It is a fool's fantasy to think if we disengage from the world that is will leave us alone. To paraphrase Trotsky: "You may not be interested in War, but War is interested in you." When those wars occur or become necessary I'd rather they not be fought on our soil, or to wait until that becomes a necessity. That may be Machiavellian, but it's eminently pragmatic.

[David Nieporent]

1. Weird conspiracy theory is weird.
2. During the CMC, Kennedy didn't say, "Trust me." He showed the evidence.
3. The Monroe Doctrine isn't a legal theory at all. And even if your premise is correct, that gives no more right for the U.S. to attack Venezuela — which does not, of course, pose any threat of any sort to the United States — than Russia had to attack Ukraine.

[Randal]

What about if we label them "terrorists" first?

[David Nieporent]

Not sure – but if we put "narco" in front of terrorist, that makes them scarier, so that's a totally different story.

[Randal]

The drug story is there to hook MAGA. Oh, woe, people in America are dying (of cocaine?), so that's how you convince dumb maggots that starting a war in Venezuela somehow counts as America First. Trump's maggots aren't impressed by stories of foreign consultants and interlopers hanging out in Venezuela.

[Jack Jordan]

Currentsitguy, your argument is essentially the same as Putin's purported justification for invading (and continuing to bomb) Ukraine. Your argument also could be used by Putin or China to purport to justify invading Turkey or other nations (where we have not mere advisors or mere missiles, but even one or more entire bases). We're very far past the point at which the Monroe Doctrine could plausibly be (or should be) of any use to justify attacking or invading Venezuela.

[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?

[JoeFromtheBronx]

Ah. More "leftist" TDS, correct?

Jack Goldsmith notes at one point:

I wrote a few weeks ago about the possibility of an OLC golden shield as a defense to illegal conduct in connection with the boat strikes.

(Marty Lederman, a more liberal leaning legal analyst who has strongly criticized strikes, has also spoken about this.)

I fear the impunity. I will accept consequences when I see them. There is also the pardon power -- Trump has already applied it to protect war criminals.

The entry speaks of "dishonor." Opponents of the Administration regularly are upset at their dishonorable actions. It is not merely that they are illegal, unhinged in various ways, and so on.

There is a personal aspect. We (I will bring myself in) are not robots. We are angry in part because we find this dishonorable (as well as cruel). People like Hegseth, who proclaim their principles even on the tattoos on their own bodies, blaspheme with their actions.

[Al S]

I see zero difference between these strikes and the innumerable drone strikes against other terrorists over the years by presidents of both parties. They were just as “helpless” as any of these.

[JoeFromtheBronx]

The drone strikes arose in a variety of contexts.

For instance, many drone strikes were clearly authorized by congressional authorization of military force.

Also, an alleged drug trafficker is not likely to be a "terrorist" in the way various targets were in those cases.

A variety of other differences, including when a drone was used against someone [regularly via a carefully formalized process] deemed a threat who could not be reached by normal processes (such as someone in some isolated area), exist.

This doesn't make the drone strikes non-problematic in a variety of cases, including when clear innocents were harmed and killed.

But the two situations are not the same in a variety of ways.

[The excerpt touches upon this, and the reply is rather non-responsive to the argument made.]

[Armchair]

"For instance, many drone strikes were clearly authorized by congressional authorization of military force."

And? Does a "Congressional authorization of military force" make it legal to shoot civilians flat out?

Something to consider....

[JoeFromtheBronx]

The AUMF I referenced did not authorize "flat out" killing of civilians.

A congressional authorization that DID so might, in certain cases, raise constitutional problems (e.g., killing of U.S. citizens in certain situations). It would violate international law & be bad policy.

[Armchair]

And yet, you use it to support the drone strikes that killed many, many civilians.

[JoeFromtheBronx]

And yet, you use it to support the drone strikes that killed many, many civilians.

I referenced that the AUMF that passed did not authorize flat-out killing. Then, I gave a hypothetical ("that DID so might") and the problems with it.

[Incunabulum]

Well, I guess that's done with Obama then.

[Hugh]

Hegseth is a Nazi.

[Frank Drackman]

Brilliant

[Hugh]

No, just simple and true.

[Frank Drackman]

add "Idiot" and you've described yourself perfectly.
Oh, Obama's a Nazi.
See how that works?

Frank

[thesafesurfer]

Democrats ordered 855 drone strikes from 2009 to 2017 under Barack Obama killing 4,000 people with at least 20% being civilians.

Jack Goldsmith supported the death of civilians as legal. He publicly claimed it was a legitimate counter terrorism tool. Now Jack Goldsmith publicly and completely contradicts himself for partisan political gain. Jack Goldsmith is a reprehensible, disgusting political operative willing to corrupt his position and institution in an indefensible manner at a whim.

His actions demonstrate how the Democrats will tell bald-faced lies all day long in the pursuit of political power with no moral compass whatsoever.

Shame on Jack Goldsmith for his lies, shame on him for disgracing the Harvard faculty, and shame on him for disgracing Harvard.

The man has no redeeming virtues considering how low he has fallen and his willingness to abandon any principles whatsoever to achieve his political goals.

[David Nieporent]

1) Jack Goldsmith is not a Democrat.
2) Jack Goldsmith is not a "political operative."
3) What "partisan political gain"? What "political goals"?
4) You are not accurately characterizing Goldsmith's political position.
5) Regardless of what might be a "legitimate counter terrorism tool," we are not discussing terrorism here. We are discussing commercial drug smuggling.

[thesafesurfer]

Democrats ordered 855 drone strikes from 2009 to 2017 under Barack Obama killing 4,000 people with at least 20% being civilians.

The Washington Post's completely unsubstantiated claims are the latest in an endless array of bald-faced Democrat lies against the GOP dating back to the Collusion Delusion with the current administration. No doubt their source is Christine Blasey Ford.

Jack Goldsmith supported the death of civilians as legal. He publicly claimed it was a legitimate counter terrorism tool. Now Jack Goldsmith publicly and completely contradicts himself for partisan political gain. Jack Goldsmith is a reprehensible, disgusting political operative willing to corrupt his position and institution in an indefensible manner at a whim.

His actions demonstrate how the Democrats will tell bald-faced lies all day long in the pursuit of political power with no moral compass whatsoever.

Shame on Jack Goldsmith for his lies, shame on him for disgracing the Harvard faculty, and shame on him for disgracing Harvard.

The man has no redeeming virtues considering how long he has fallen and his willingness to abandon any principles whatsoever to achieve his political goals.

[JonFrum]

Kill them all.

[David Nieporent]

Nazi.

[JoeFromtheBronx]

TBF, the Nazis in WWII did not follow a "kill them all" philosophy.

They were a bit more nuanced regarding killing everyone.

[wvattorney13]

Yawn. Fake news Washington Post with more innuendo and anonymous sources to cause a false narrative to be out there in the public. And that's was the whole purpose.

[SRG2]

OK. You as a lawyer should be used to hypotheticals. What if the WaPo story were true?

[bloocow2]

Usually it goes in stages, a bit like this

"Typical lying media, lying to make people they don't like look bad. This would never happen! Fake sources, fake pictures, fake fake fake!" (this is the phase our attorney is currently in)

Then, when the story is actually confirmed

"So maybe it's true! So what? Who cares? It's not important!"

Sometimes there will be a pivot into "Biden did it too!" or "it's true and it's a good thing!", followed by parroting whatever the official line is. Anything to avoid having to look at the truth staring right at them in the face. Anything to avoid having to think for themselves.

[thesafesurfer]

What bald-faced lies like this one from the Washington Post ever came true? Let me give you a list of the lies you helped to spread like a drunk housewife spewing the neighborhood gossip.
1- "Trump grabbed the steering wheel from the secret service"
2-Trump called dead veterans "suckers and loser."
3-Trump asked George election officials to "find fraud."
4-Trump called Neo Nazis "very find people."
5-Trump said to "inject bleach" to fight COVID.
6. THE COLLUSION DELUSION!!!

You are a dime a dozen, run of the mill, Trump Derangement Syndrome bald-faced lying Democrat loser.

[David Nieporent]

Setting aside that you seem to be picking any random story that was in the news at any point, rather than things actually in the Washington Post:

1. The Washington Post never reported that.
2. This has been confirmed.
3. This is not only true, but on tape, except that you put words in quotes even though they don't represent a quote.
4. Minus the typo, also true.
5. A fair summary of Trump's comments, though not an exact quote, but, then, the Washington Post didn't report that either.
6. This was accurate. The Russians did work to get Trump elected and he was aware of their efforts and welcomed them. Found by both the nonpartisan Mueller investigation and the bipartisan-but-Republican-led SSCI investigation.

[Incunabulum]

You do not love in the US - you worry about your own country.

[Joe_dallas]

What if the WP story is true?

Given the stellar history of the WP, that would be a big if!

[Purple Martin]

If the reporting turns out to be accurate (that is, WaPo's two sources are not the SECDEF and Admiral, so at least four people know what happened), AMD Frank Bradley (four-star Admiral and Commander of U.S. Special Operations Command) was ordered by the SECDEF to issue an illegal order: Kill defenseless survivors of a military attack.

By not refusing to obey that order (not to mention originally ordering the military to conduct nonjudicial summary executions of civilians), he personally committed an illegal act in violation of the UCMJ. This differs only in degree from Lt. William Calley, whose defense was that he was following the orders of his commander, Capt. Ernest Medina. Calley was convicted by court-martial of the murder of 22 unarmed South Vietnamese civilians in the My Lai massacre during the Vietnam War. (Total number killed was 300-500. Capt. Medina was acquitted by the same Court Martial panel of giving such an order. No soldiers under Calley’s command were charged.)

During my military career (SMSgt, Ret. USAF), discussions around the obligation to refuse illegal orders were not uncommon. One common point of those discussions was that the greater the authority of the military member, the greater the responsibility to refuse a patently illegal order—and thus protect those under their command from having to make that decision. In other words, my responsibility as a Senior NCO was greater than that of a Staff Sergeant or Senior Airman, my commander's responsibility was greater than mine, and the General's responsibility was far greater than either.

Part of that is reflected in how the differing oaths military enlisted and commissioned officer members take influenced not just the finer legal points, but the culture and tradition of following orders. This is nicely explained by (LtGen, Ret., USA) Mark Hertling in this Bulwark piece:

https://www.thebulwark.com/p/what-americans-should-understand-about-the-military-disobeying-illegal-orders-two-oaths

I don't entirely agree with his opinion about what he believes to be my own traditionally—not legally—lesser responsibility, but it's well worth reading for the facts, culture, and process info.

[thesafesurfer]

When the truth comes out that their was never a confirmed anonymous source and people like you spread a complete lie will you apologize or retract one single word of this rant? Is that what you learned in the military? Perpetuating lies and completely unsubstantiated innuendo was not what was taught in the army during my enlistment from 1983 to 1989. So much for your appeal to expertise fallacy.

When you cite "The Bulwark" you figuratively tattoo the word "moron" on your forehead.

[NvEric]

Another day in paradise.

[F.D. Wolf]

One would have to be credulous to the point of retardation to accept this story without question, especially given its timing, coming right on the heels of the ad from the Seditious Six, led by a former CIA spook, which sought to undermine good order, discipline, and morale in the military. This transparent psyop, which brands American soldiers as "war criminals" has already resulted in the murder of one American servicemember, but that is a small price to pay if it helps Democrats electorally.

Before Jack Goldsmith had Trump Derangement Syndrome, he suffered from Bush Derangement Syndrome. He wrote a book about the administration he briefly served, The Terror Presidency (2007), in which he excoriated the administration for breaking international law and never going to Congress.''

And then President Obama took office. What did Goldsmith have to say about Obama's ubiquitous use of drones and missiles to, among other things, haphazardly kill American citizens (and their children) and to strike a wedding in Afghanistan, killing dozens of civilians. Unsurprisingly, he just defended all of it:

Nor is the White Paper a repudiation of democratic principles or our constitutional checks and balances. Shamsi complains that the president claims an authority to kill American citizens “without legal involvement.” What she fails to mention is that the ACLU brought a lawsuit against the administration concerning the killing of Anwar al-Awlaki, an American citizen and member of al Qaeda in the Arabian Penninsula who was an operational leader who planned attacks on the United States from Yemen, including the failed 2009 “underwear bomber” attack. The court dismissed the case based in part on “the impropriety of judicial review.” The court added that the Constitution places “responsibility for the military decisions at issue in this case 'in the hands of those who are best positioned and most politically accountable for making them'”—Congress and the president. Judicial review before killing an American citizen might sound like a good idea in the abstract. But at present there is simply no constitutional or statutory mechanism for judicial review that the president could have deployed before killing al-Awlaki. Congress might be able to create a system of secret judicial review in this context, though it has shown little interest in doing so and its authority to do so is far from clear.

In the meantime, the president faced a threat and had the responsibility to act. Our constitutional democracy does not require the president to remain passive in the face of threats such as al-Awlaki. To the contrary, he has a duty to meet this threat, regardless of the citizenship of its author. Consistent with the legal judgment of two presidential administrations and based on principles articulated by federal courts reviewing detentions in Guantanamo, al- Awlaki also falls within the September 2001 congressional authorization of presidential force against al Qaeda.

Jack Goldsmith, On Target, New Republic (Feb. 15, 2013). https://newrepublic.com/article/112337/112337

Indiscriminately kill dozens of civilians at a wedding? Bold, decisive action! Kill a couple of pirates shipping deadly poison into our country? "Dishonorable murder" of "helpless men". I think we all know the (D)ifference.

[bernard11]

One would have to be credulous to the point of retardation to accept this story without question,

Especially since we've now seen the unredacted video.

Oh. Wait.

[F.D. Wolf]

Will an "unredacted video" show what Pete Hegseth said?

I'm unclear on what exactly the claim is here. If a first strike intended to destroy a boat fails, then a second strike violates international law?

[bernard11]

It will show the second strike. That's plenty.

Somebody ordered it.

[David Nieporent]

I'm unclear on what exactly the claim is here.

No, you're not. You're just pretending to be.

[Sam Bankman-Fried]

You supported the Iraq War!! Haaaaa!!!

[David Nieporent]

which sought to undermine good order, discipline, and morale in the military.

There is nobody who is not brain damaged who believes this. I don't think FD Wolf is brain damaged. Therefore, he is just a lying asshole, who will say anything stupid and indefensible to support evil.

[Purple Martin]

Well, I would have gone with "who will parrot anything stupid and indefensible the evildoer says" but I do tend to wordiness so, yes, yours it better.

[thesafesurfer]

"One would have to be credulous to the point of retardation to accept this story without question."

HEAR! HEAR!

[ReaderY]

Mr. Trump may well have the raw power to shoot someone at random walking down Fifth Avenue and gate away with it that he boasted in his first campaign that he was amass. The current Justice Department with modern-day Richard Richards who accept a lot less than Wales as payment, Congress is very likely too much of a doormat to do anything, and if he tests a new gun or something while doing it it becomes an official act immune from future prosecution.

But thwe possession of raw power does not make it right.

[Purple Martin]

Yes. Andrew McCarthy detailed your point nicely in a National Review article last night:

‘We Intended the Strike to Be Lethal’ Is Not a Defense
By Andrew C. McCarthy | November 29, 2025 8:20 PM

It ends with...

Finally, I would observe that — again, if the Post report is accurate — Hegseth and his commanders changed the protocols after the September 2 attack, “to emphasize rescuing suspected smugglers if they survived strikes.” This is why two survivors in a subsequent strike (on October 16) were captured and then repatriated to their native countries (Colombia and Ecuador).

This was a ludicrous outcome: under prior policy, the boat would have been interdicted, the drugs seized, and the operators transferred to federal court for prosecution and hefty sentences. Under the Trump administration’s policy, if the operators survive our missiles, they get to go back home and rejoin the drug trade.

But put that aside. The point is that, if the administration’s intent to apply lethal force were a defense to killing shipwrecked suspected drug traffickers, the policy wouldn’t have been changed. It was changed because Hegseth knows he can’t justify killing boat operators who survive attacks; and he sends them home rather than detaining them as enemy combatants because, similarly, there is no actual armed conflict, so there is no basis to detain them as enemy combatants.

This is a very serious matter. The administration’s defense can’t be that “we killed them because our plan is to use lethal force.”

https://www.nationalreview.com/corner/we-intended-the-strike-to-be-lethal-is-not-a-defense/
(metered paywall—four articles per month)

[thesafesurfer]

You need to get professional treatment for your fatuousness.

[Lee Moore]

Leaving aside this particular event, and the strange notion that we should default to believing anything in the WP, including 'and" and "the"....

.....I'm not even slightly on board with the alleged ethical standard that combatants are morally obliged to take prisoners, when opposing combatants offer to surrender, still less when they haven't offered to surrender but merely appear to be helpless for the moment.

As far as I'm concerned enemy combatants are fair game until they're dead. Taking prisoners is a risky and expensive business. It might get you killed and it will certainly consume resources that could be used to win the fight you're in. You might choose to take prisoners for a number of reasons, eg :

1. in the hope that the enemy will treat your own captured combatants well
2. to encourage other enemy combatants to surrender rather than fight to the death - maybe even to come over to your side
3. to avoid your own combatants getting queasy
4. to advertise yourself to third parties as "the good guys", in the hope they'll start helping you

But these are all prudential reasons, not moral ones. If - aside from prudential reasons - you choose to show mercy by taking prisoners, you're welcome to do so. If you so choose.

I will concede that I am one of the ungodly. and I appreciate that the godly may have their moral obligations handed to them by a Higher Authority. But for heathens who have to make up their own moral rules, IMHO - mercy is a gift, not a moral obligation.

To take a well known example, which was, I believe, the subject of a mock law hearing in the 1990s, Henry V's decision to execute most of his French prisoners at Agincourt (though keeping the valuable ransomable ones) seems to me quite justifiable. They would have taken a lot of guarding, impeded his retreat and exposed his army to further attack. He took a perfectly justifiable military decision. I believe the 1990s mock hearing took the opposite view, which is just what you would expect from a bunch of lawyers yattering nearly six hundred years later, from the comfort of their air conditioned hall.

[bernard11]

The killing of the prisoners at Agincourt has been extensively discussed, even well before some lawyers in the 1990's decided to explore it.

But whatever you think about the incident (and it is interesting that even 600 years ago there were accepted norms of war that, among other things, forbade the killing of prisoners under normal conditions), Henry's situation was far different from our current case. The prisoners had arms within reach, and possibly outnumbered the English troops. There were also some signs that they were beginning to organize a counterattack.

Here we have two survivors clinging to the wreck. They are massively outnumbered and outgunned. There was no counterattack threatened, and no escape available. Taking them prisoner was neither expensive nor risky, and might have yielded useful information (though perhaps not information Trump wanted publicized).

Besides, the murder violated our own laws.

[Lee Moore]

Henry's situation was far different from our current case.

I mentioned Henry as an illustration to demonstrate that we have no moral duty to take prisoners. "Our current case" is dealt with by my opening words : Leaving aside this particular event

Taking them prisoner was neither expensive nor risky, and might have yielded useful information (though perhaps not information Trump wanted publicized).

Which, even stipulating to the WP's facts, is a prudential not a moral consideration.

Besides, the murder violated our own laws.

Again, even so stipulated, irrelevant to the question of whether we are under a moral duty to take prisoners..

[Jack Jordan]

Lee, what does morality matter here? This issue is governed by law, not morals. That's the point of our Constitution (Article VI) emphasizing that all "the Members" state or federal "Legislatures, and all executive and judicial Officers, both of the United States and of [all] States" are bound by "the supreme Law of the Land" and bound "to support" our Constitution and "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

[Lee Moore]

As Randal explains below, the laws of war promulgated by international organizations, and those incoporated into US law are, in part, justified by reference to moral considerations. Hence the relevance of morals.

Slavery was legal in much of the United States, for some considerable time, before being abolished. When those in favor of it and those against it discussed the matter, they did not, on the whole limit themselves to a discussion on what the current law actually said, and what it meant. They also discussed what they thought the law ought to say - which encompassed both moral and practical considerations.

This is quite normal - people who discuss laws often discuss the "oughts" behind the laws. And very often they jumble up their discussion of law and morals - sometimes because they are snake oil salesmen, but sometimes because they don't really appreciate that law and morals are different ideas.

I am doing you the courtesy of NOT confusing law and morals, and making it abundantly clear that I am making a moral point. There is no moral duty to take prisoners, whatever the law may or may not say. Taking prisoners or accepting a surrender, is, morally, an act of mercy. Not a moral duty. IMHO.

[Jack Jordan]

Lee, I appreciate the normal nexus between law and morality. My point is different. This issue is governed by law, not by morals. Morality cannot govern here.

I'm pretty sure that morality isn't even relevant here. These laws and treaties and conventions (and our agreement to such treaties or conventions) are designed to protect members of the U.S. Armed Forces and U.S. citizens, not our morals. We agree (and essentially promise) to behave a certain way toward others so that others will behave (or will be more inclined to behave) toward us in such a manner. It's transactional, not moral.

[Randal]

... the question of whether we are under a moral duty to take prisoners.

I suspect you don't think we've got a moral duty to do anything, and this post is about legal duties, not moral ones. So... doubly pointless?

[Purple Martin]

Well, commissioned officers have to study it in a lot more depth, but Senior NCO Academy included, in some detail, a section on The Laws of War (nine weeks, in-residence, Professional Military Education—yes, even we slob enlisted received career-long mandatory PME, which included topics covered in Goldsmith's article.) So...

DOD Law of War Manual, Section 5.4.7:
Prohibition Against Declaring That No Quarter Be Given.

It is forbidden to declare that no quarter will be given. 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. This rule is based on both humanitarian and military considerations [emphasis added]. This rule also applies during non-international armed conflict.

[Randal]

Oh, I'm aware that the laws of war are morally motivated in part. Lee is arguing that we should reject those parts.

[Purple Martin]

Yes, I'm aware you were not questioning me...you were just quoting the grey box who replied to you, who, in available context, seemed to need a reminder of the moral component inherent in the development of my military's formal rules of engagement.

[Lee Moore]

Lee is arguing about what Lee thinks is or is not moral. And as you say, what other people think - or at least claim to think - is moral, is the justification, in part, for the various rules that have been promulgated. Hence the relevance of morality to a discussion about the laws of war.

I'm just saying that I don't buy the idea that there's a moral duty to take prisoners - and consequently I don't buy, in the sense of support, a legal rule that is based on such an imagined duty.

There are, as I mentioned, a range of prudential reasons to take prisoners, but that is an entirely different matter.

[Randal]

The morality of not taking prisoners is roughly the same as the morality of wanton murder, so you might be a little bit of a sociopath, Lee.

[That ain't my name]

These men, if they existed, were not prisoners, which means any attempt to compare the two situations fails - quite obviously. These men could NOT BE prisoners, because an airplane is NOT CAPABLE of taking prisoners.

You cannot surrender to an airplane. You cannot be taken under control by an airplane. How, exactly, do you think the airplane was going to take them prisoner? Magic?

[Kleppe]

Let's say there is a group of enemy soldiers on the battlefield. The U.S. commander's intent could be to eliminate the enemy soldiers. So a military aircraft is vectored in and drops a bomb. After the dust settles, the aircrew sees that some enemy soldiers were killed and some were not, thus the strike did not achieve the commander's intent. In the real world, 10 times out of 10 the terminal attack controller will authorize the aircrew to perform an immediate reattack. According to the OP, we are supposed to believe this is a war crime -- that by inadvertently wounding enemy combatants instead of outright killing them, they acquire some sort of protective legal shield. This is, as Justice Scalia might say, pure applesauce.

[bernard11]

Your comment is what is applesauce.

The survivors of the initial attack were not combatants, and probably never were.

[Lee Moore]

1. You're fighting the hypo.

2. I'm intrigued by your second sentence, especially the appearance of "probably." If they were at some point combatants, at what point did they cease to be so - and how ? I understand how dead combatants cease to be combatants, but how do live ones manage it ? Begged questions aside.

[OpinionsVary]

Re-2, assuming for the sake of argument they were combatants to start with, they became "hors de combat" (and hence not lawful targets for further attacks) when they became shipwrecked - that is, in the water clinging to the wreckage as in this example.

This is spelled out in the DOD Law of War manual:
"7.3 RESPECT AND PROTECTION OF THE WOUNDED, SICK, AND SHIPWRECKED
Members of the armed forces and other persons mentioned in Article 13 of the GWS and the GWS-Sea, who are wounded, sick, or shipwrecked, shall be respected and protected in all
circumstances. Such persons are among the categories of persons placed hors de combat; making them the object of attack is strictly prohibited."

And article 10 of the Geneva Convention.

Article 10 - Protection and care

1. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected.

2. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones.

[thesafesurfer]

There is no demand to show a shred of respect individual likes yourself who repeatedly and endlessly spread gossip and hearsay like a roomful of sorority house girls. Have you ever had a shred of respect for due process?

[bernard11]

1. I don't think I'm fighting the hypo, though I'm never quite sure what that means - seems to be a law school term. Anyway, what I'm doing is that the analogy does not at all apply. The phrase "survivors of the initial attack," may not have been clear. I was referring to the survivors of the attack on the boat, not the survivors in Kleppe's scenario.

2. Live combatants cease to be combatants when they are taken prisoner, or are unconscious, or otherwise rendered hors de combat, including by being shipwrecked.

[OpinionsVary]

The laws of war at sea and more expansive than the laws of war on land in this respect. You might wish the US didn't sign the treaties to that effect but it doesn't change the fact the US signed them and wrote them into domestic military law too.

[Purple Martin]

Yes. When the President gives permission to members of our military to ignore their own long-standing rules of engagement, the UCMJ, and international law in non-combat killings of foreign civilians, he gives other countries an excuse to do the same to us.

The rule of law continues to erode under this President, and all of us, military or civilian, are less safe.

[thesafesurfer]

You might wish that the truth didn't require confirmed sources on the record.

[David Nieporent]

According to the OP, we are supposed to believe this is a war crime

If the reattack was to kill soldiers who were hors de combat, then yes. If the reattack was to kill soldiers who were still capable of fighting, then no.

[That ain't my name]

Yet again, you show that you have no idea what "hors de combat" means.
Law, especially military law, has a jargon and context that underlies all of the terms and phrases used. There are centuries of history behind the various terms and situations described.
You, quite obviously, are not a military lawyer. You have read some progressive website and are now copying words you do not understand from it. If you take a few years to become a military lawyer, with a focus on the laws of war (rather than, say, federal contract law) then you may understand why what you are saying here is complete nonsense.

[David Nieporent]

I am indeed not a military lawyer; I am a lawyer and have read the relevant law, though. You… are neither. You've just handwaved. What I said is accurate, which is why you didn't cite anything specific that was inaccurate.

[Lee Moore]

.

[JoeFromtheBronx]

Sen. Roger Wicker (R-MS) released a joint statement with his Democratic counterpart, concerned about this matter, promising "vigorous oversight."

https://www.mississippifreepress.org/wicker-directs-inquiry-into-hegseths-reported-kill-them-all-order-vowing-vigorous-oversight-of-boat-strikes/

To add additional context. The author of this blog entry is a conservative (sometimes also labeled a "libertarian").

He disagrees with the Administration in various respects, but also called out judges for allegedly going too far in checking its power.

He is not out there providing too many posts about the problems of this Administration. That is someone else.

He thinks this specific matter stands out.

[Stephen Goldstein]

Legal? Illegal? War Crime? I surely don't Know.

But, even if it was legal I am unhappy with it.

Who remembers the scene in innumerable WWII pixs . . . . A Navy pilot has ditched in the Pacific and here comes an evil Jap staffing our guy in the water. Or the crew has bailed out of a damaged American bomber somewhere over Europe and an evil German pilot comes one of our guys hanging from his parachute, floating slowly back to earth.

And just a few days ago we read about Army Spc Sarah Backstrom who was on National Guard duty in DC. Afghan Rahmanullah Lakanwal shot Backstrom then walked up to her prone body and fired a second round into her head! Evil × Evil!!

The point is that having US Armed Forces going back to the wreckage of the interdicted drug boat to take out any survivors might be legal but it's not right. I don't like this phrase but I'll use it anyway, It's Not Who We Are. At least it's not who I want to be.

Anyway, that what I think.

[Incunabulum]

Unrestricted

Submarine

Warfare.