The Post’s account of a deliberate attack on the survivors takes the situation to a new level of moral depravity and legal recklessness. On Friday, Jack Goldsmith, a Harvard Law School professor who served as the assistant attorney general for the Justice Department’s Office of Legal Counsel under George W. Bush, wrote that the Administration could make a “conceivable” argument in defense of the boat strikes. But, Goldsmith continued, “there can be no conceivable legal justification” for attacking the survivors. A group of about forty former senior military lawyers that was established in February, after Hegseth fired the Judge Advocate Generals for the Army, Air Force, and Navy (he called them “roadblocks to orders that are given by a commander in chief”) went further. “The Former JAGs Working Group unanimously considers both the giving and the execution of these orders, if true, to constitute war crimes, murder, or both,” they wrote. The group’s roster isn’t public, in part because of concerns about retaliation, but one member, Steven Lepper, a retired Air Force major general and a former Air Force judge advocate, told me that he thought Hegseth should be prosecuted for murder. “Kill them all—that is not an order that can be followed,” Lepper said.
If the Post story is accurate, Hegseth’s initial order, and the follow-up attack on the two survivors, violate two fundamental and intersecting principles of the law of war. One is the prohibition against orders to give “no quarter”—to refuse offers of surrender or to summarily execute detainees. The Defense Department’s Law of War Manual, which provides what it describes as authoritative legal guidance for military conduct, states flatly, “It is forbidden to declare that no quarter will be given.” The second is the protections provided to those who are considered hors de combat—removed from combat. Again, from the Law of War Manual: “Combatants, placed hors de combat must not be made the object of attack.” According to the Post, Admiral Bradley implausibly claimed that the survivors of the boat strike “were still legitimate targets because they could theoretically call other traffickers to retrieve them and their cargo.” The manual, however, rejects such justifications: “Persons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack.” Even the ordinarily bellicose Trump appeared uncomfortable with the killings, telling reporters that he was confident that Hegseth did not issue the order to take out the survivors, and adding, “I wouldn’t have wanted that. Not a second strike.” (On Monday, the White House press secretary, Karoline Leavitt, took a different approach, asserting that “Admiral Bradley worked well within his authority and the law, directing the engagement to ensure the boat was destroyed and the threat to the United States of America was eliminated.”)
As it happened, the Post report was published the week after six Democratic members of Congress, all with military or intelligence backgrounds, released a video reminding service members of their duty to disobey unlawful commands. “Our laws are clear: You can refuse illegal orders,” Senator Mark Kelly, of Arizona, a retired Navy captain, said. The Trump Administration took a whole-of-government stance on reprisal. Trump blasted the video as “SEDITIOUS BEHAVIOR, punishable by DEATH.” The Pentagon soon announced that it was investigating Kelly for “serious allegations of misconduct”—a move that could theoretically lead to Kelly being recalled to active duty and subjected to court-martial. (The other lawmakers fall outside of the Pentagon’s jurisdiction, because either they did not serve long enough to retire or, in the case of Senator Elissa Slotkin, of Michigan, they worked for the Central Intelligence Agency.) The lawmakers then reported that the F.B.I. was seeking to schedule interviews with them.
There is a chance that the horror of the strike on the survivors, combined with the Administration’s scant legal explanations for the boat strikes in general, may evoke a most elusive event: bipartisan pushback. In the aftermath of the Post story, the Republican and Democratic leaders of the Senate Armed Services Committee vowed “vigorous oversight to determine the facts related to these circumstances.” The chair and ranking member of the House Armed Services Committee followed with a pledge “to gather a full accounting of the operation in question.” Speaking on CBS News’ “Face the Nation” on Sunday, the Republican congressman Mike Turner, of Ohio, who sits on the House Armed Services Committee and previously chaired the House Permanent Select Committee on Intelligence, said of the Post report, “Obviously if that occurred, that would be very serious, and I agree that that would be an illegal act.” The Republican congressman Don Bacon, of Nebraska, said on ABC’s “This Week” that he was “very suspicious” that Hegseth “would be foolish enough” to have issued such an order. But, he continued, “if it was as the article said, that is a violation of the law of war. When people want to surrender, you don’t kill them, and they have to pose an imminent threat. It’s hard to believe that two people on a raft, trying to survive, would pose an imminent threat.”
No one who has witnessed the behavior of this Republican-controlled Congress during these past ten months should feel confident that these are the stirrings of a newly assertive legislative branch. But what happens if and when video of the incident—it exists, because the Administration released a redacted version—becomes available, showing the survivors and their killing? This could be a moment—like My Lai, like Abu Ghraib—when the country is shocked into remembering its aspirations. “We’re supposed to be the good guys,” Lepper told me. “We have always prided ourselves on being an honorable military. We have crossed the line here into clear illegality and clear dishonor.” ♦
