Amid intensifying scrutiny over U.S. military strikes against alleged drug boats in the Caribbean, questions are emerging over who in the Trump administration’s chain of command is legally on the hook for what many see as war crimes.
Administration officials have insisted it was the decision of Adm. Frank Bradley, not Defense Secretary Pete Hegseth, to deploy a second attack in a Sept. 2 operation off the coast of Venezuela, in which the military struck a suspected drug boat and killed two shipwrecked survivors. Hegseth has even insisted he was not in the room at the time of the second strike.
As officials have argued over the legality of the strike, military experts, including several former judge advocate generals, say both Hegseth and Bradley could face future ramifications based on their roles in the attack.
Hegseth likely would have approved the rules of engagement (ROE) and been the target engagement authority — the senior official who gave the order to strike the boat — with the decision then delegated down to Bradley once Hegseth leaves the room, according to Carrie Lee, a senior fellow with the German Marshall Fund.
“The question, though, is should Bradley have then known better about differing laws of war when it comes to shipwrecked survivors, the answer is probably yes, and there’s still big questions about whether that second strike was at all lawful or not,” Lee told The Hill.
“What is very telling is that if Hegseth approved those rules of engagement, then it’s on him. … Ultimately, the responsibility lies with the person who approved those ROE,” she added. “I don’t think that the fact that Hegseth wasn’t in the room lets him off the hook.”
“Since orders to kill survivors of an attack at sea are ‘patently illegal,’ anyone who issues or follows such orders can and should be prosecuted for war crimes, murder, or both,” said the group, which was formed in February in response to Hegseth’s unexplained firing of the Army and Air Force judge advocates general.
The U.S. military has killed at least 87 people since early September through at least 22 strikes against boats that the Trump administration has claimed, without providing public evidence, were carrying drugs bound for the United States.
Details around the Sept. 2 boat strike, which came to light last month, have sparked an intense firestorm in Congress after it was reported that two people survived an initial strike and were clinging to the smoldering vessel but were later killed in a second strike ordered by Bradley, the commander overseeing the attacks.
Both the House and Senate Armed Services committees launched a review into the attack, with Democratic lawmakers arguing that the second strike was a war crime that violated international law as it targeted two incapacitated people with no hope to radio for help.
On Tuesday, Hegseth, along with Secretary of State Marco Rubio, CIA Director John Ratcliffe and Joint Chiefs of Staff Chair Dan Caine, held a classified briefing in Congress with the “Gang of Eight.” The closed-door session did not assuage the concerns of some Democrats, who said afterward that Hegseth said the Pentagon is still in the “review process” when it comes to potentially releasing the footage of the attack and his operational orders.
But the chair of the House Armed Services Committee, Rep. Mike Rogers (Ala.), on Wednesday announced his panel would end its inquiry into the matter as the classified briefings from the Pentagon and video of the operation were “sufficient to convince” the Alabama Republican that the U.S. military’s action was legal.
The administration has repeatedly defended its military strikes as necessary and lawful, alerting Congress in September that the U.S. was in a “non-international armed conflict” with drug cartels it designated as terrorist organizations.
The administration reasons that, because drugs smuggled into the U.S. by these cartels kill what it claims are tens of thousands of Americans per year, the boats constitute an “armed attack” against U.S. citizens.
“They killed 300,000 people last year, drugs, these drugs coming in. They killed 300,000 Americans last year. And that gives you legal authority,” President Trump told reporters on Oct. 22. “We’re allowed to do it.”
But given that drug cartels are criminal syndicates — not nation states or insurgencies — the legality around Trump’s so-called war on drugs and his administration’s legal justification for it are tenuous at best.
Before the strikes even began, the Justice Department this summer filed a classified, internal legal opinion giving the administration’s justification for attacks on the suspected drug boats, arguing that U.S. troops involved in the strikes would not be in legal jeopardy.
“I feel sorry for service members being put in this position, to be conducting this entire campaign,” said Rachel VanLandingham, a former Air Force judge advocate and now a law professor at Southwestern Law School. She called the Justice Department’s memo simply a “legal veneer” for military members.
“I can see that service members are between a rock and a hard place because they’re being told it’s lawful,” VanLandingham said. “That’s where I do feel some empathy for Adm. Bradley, because he’s going to be hung out to dry.”
She added, however, that Bradley’s order for a second strike to kill two shipwrecked people “was a clearly unlawful order he should never have given.”
“I feel like he was put in a horrible situation by this awful administration in this context. But he knew better. He should have known better, and so should the folks that followed that order for the second strike,” she said.
On Tuesday, a coalition of advocacy groups filed a lawsuit against the administration seeking the immediate release of the Justice Department memo, arguing that the American public deserves to see the justification for the deadly strikes. The filing in federal court in Manhattan requests that the Justice, State and Defense departments be ordered to release all records regarding the legal reasoning behind the strikes.
“The only fact that everybody agrees on, it seems like, is the boat was struck, it needed to be rescued, people were still alive, and we killed them. On those facts alone, there is nothing else I see that couldn’t be a crime,” said Margaret Donovan, a former federal prosecutor and judge advocate general officer.
She referred to Title 18 United States Code Section 1111, under which Bradley and everybody underneath him who helped facilitate the strike could be held accountable, with Hegseth also looped in under aiding and abetting for having given the original go-ahead.
“You probably could get everybody in the kill chain for that one,” she told The Hill.
For war crime prosecutions, however, “you often see everybody up the chain of command get implicated in some way, but in terms of being formally charged, it’s difficult to envision how that would play out without knowing exactly what the ROE looks like, what verbal orders Hegseth gave,” she said.
The Washington Post last month reported that Bradley’s order was meant to comply with Hegseth’s verbal command to “kill everybody” on the boat. Both Bradley and Hegseth have denied that such an order was given.
“This is why we need a thorough investigation to know where the culpability lies,” Donovan added. “It’s a complete failure of leadership no matter which way you look at it.”
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