Did a U.S. Boat Strike Amount to a War Crime?

From the New York Times, I'm Rachel Abrams and this is the Daily.

It's been 3 months since the American military began firing on boats from South America, killing more than 80 people and prompting Democrats to raise urgent questions about whether these

attacks might be illegal.

But now >> we're going to conduct oversight and uh we're going to try to get to the facts and um >> new questions about one of those operations in which the military killed

survivors with a second missile have prompted congressional Republicans to join those calls for accountability.

There are very serious concerns in Congress about the attacks on the so-called drug boats down in >> my colleague Charlie Savage explains the

renewed debate and how the administration is justifying its actions.

It's Wednesday, December 3rd.

Charlie, we had you on the show a couple months ago to talk about the Trump administration's campaign of boat strikes in the Caribbean against boats that they argued were carrying drugs from Venezuela to the United States. And

from the beginning, there were questions about the legality of these attacks.

Right. And those questions took on new urgency this week with lawmakers, notably Republicans, announcing plans to investigate. And that's where I'd like

investigate. And that's where I'd like to start today with the Washington Post story that seems to have kicked all of this off.

>> So the day after Thanksgiving, the Washington Post published a very good story about the first of Trump's boat attacks way back on September 2nd.

Now, that had always been the most questionable of the 21 attacks that have happened so far. And part of the reason for that is that there were some additional complicating details that had come to light in September, including

that the boat had turned around before it had attacked. That there were more missile strikes on the boat before it sank than just the one that was shown in

a video that Trump had put out. And the

Intercept had reported that there were initial survivors of the first missile strike that died in the subsequent strike. But that was all kind of bare

strike. But that was all kind of bare bones. This news story added significant

bones. This news story added significant and rich detail about this strike. And

among the other things it reported was that Admiral Frank Bradley, who was running the operation, had ordered the second strike to kill the survivors of the first one because Secretary of

Defense Pete Hegsath had said to kill everyone. And this set off a furor that

everyone. And this set off a furor that had not happened back in September when the basic outlines of these facts had first come to light.

So explain that for a second, Charlie.

Why is it that this is now producing this kind of bipartisan outrage?

>> So to understand that, I think you have to work through the administration's explanation of what it's doing.

>> The administration has put forward a legal theory that this is an armed conflict. This is a war that Trump has

conflict. This is a war that Trump has decided we're at war, even though Congress has not authorized one. a war

with drug cartels and that the people on the boat smuggling these drugs supposedly for the drug cartels are not criminals. They are combatants. And a

criminals. They are combatants. And a

lot of people do not think that is a legitimate interpretation of the law and think this is not an armed conflict. But

even if you accept it, under the laws of armed conflict very explicitly, you cannot fire upon people who are out of the fight, >> people who have surrendered, people who

are incredibly wounded and unable to fight you back or explicitly shipwrecked sailors cannot be fired upon. That is a war crime. So based on what you just

war crime. So based on what you just outlined, this first strike in September that destroys the boat, kills most of the people, but leaves a couple of survivors, that second strike that kills

the remaining survivors because of the rules of war about not striking people that basically pose no imminent threat to you seems illegal on its face. And

that is why this Washington Post story catches everybody's attention.

What exactly do we know though about what Heg Seth did or did not do in relation to that September 2nd strike?

Like what do we know about the order he gave?

>> So Hegsth has acknowledged from the beginning that he authorized a lethal strike on this boat. This was not a capture operation. They weren't aiming

capture operation. They weren't aiming to disable the engines and then go arrest the guys. The aim was to kill the people on the boat, >> sink the boat, destroy the purported

drugs on the boat. So that's not in dispute. But the question is whether the

dispute. But the question is whether the orders he gave contemplated that the first missile wouldn't accomplish all those things and that there might be

shipwrecked survivors. And if that

shipwrecked survivors. And if that happened, should they be killed too? Or

was the order silent on that possibility? But whatever was in those

possibility? But whatever was in those orders, we have been told that Hegsth gave no additional instructions to Bradley once the attack commenced.

>> In other words, he didn't see or hear that there were initial survivors and then say something. But this is something Congress needs to figure out.

Mhm.

>> And regardless of what Hegsth said or intended, the next question is what did

Admiral Bradley understand his orders to be? Is his intent we want to kill those

be? Is his intent we want to kill those two people? Does he say anything that

two people? Does he say anything that leaves a contemporaneous record that would explain whether he thought he was specifically trying to kill shipwrecked

survivors or was just hitting a what he thought was a lawful target? Again, this

starts to get kind of esoteric because what difference does it make if his intent was to specifically kill these people versus destroy the vessel? if the

same missile is hitting the same object causing the same damage regardless.

And this is part of the reason why trying to apply the laws of armed conflict to this situation starts to

become very unsatisfactory because these rules are written for naval engagements between warships of nation states that

have guns. They're flying colors and if

have guns. They're flying colors and if a ship wants to surrender, it can lower its colors and stop firing its guns and

then it's out of the fight. But this is not a warship. This is a speedboat that may or may not be carrying an illicit consumer product. So basically what

consumer product. So basically what you're saying is that if the intent here from Bradley was to simply kill the two remaining survivors, it would be really

pretty clear-cut what he had done and whether it was legal in terms of the laws of war. But if he was aiming to sink the boat or destroy the drugs,

which was also part of the initial mandate and order from Hegse, that's where it gets a bit murkier, right?

>> That's where it gets murkier. Of course,

even for that initial order to be lawful, this has to be an armed conflict, which very, very few people outside of the administration think it is. And so, if it's not an armed

is. And so, if it's not an armed conflict, the first missile was murder, the second missile was murder, they were all >> right, >> unlawful.

>> How has the administration responded so far?

>> The administration as a whole has defended the entire operation. It is stressed

that Heg Seth did not specifically order the killing of the two initial survivors >> and has suggested that that is a mis

interpretation of what happened.

Nevertheless, it has defended the actions of Admiral Bradley in ordering the follow-up strike, insisting it was lawful, and that's the administration as a whole. That said, very interestingly,

a whole. That said, very interestingly, on Sunday night, >> if there were a second strike that killed wounded people in >> President Trump was asked about this by

reporters and he distanced himself from the second strike, >> but no, I wouldn't have wanted that. Not

a second strike. The first strike was very lethal. It was fine if there were

very lethal. It was fine if there were two people around. But Pete said that didn't happen.

>> Does that make you sense?

>> I have great confidence. He said the first one was fine, including the fact that it was lethal, but he wouldn't have wanted the second one. Why not? And the

suggestion is he has some kind of discomfort with that follow-up strike.

This all makes me wonder how this sort of thing would normally work. Like the

legality of these strikes in this kind of detail is the thing at issue. And so

I'm curious about who is advising the people involved like Commander Bradley or Pete Hegsth about what is legal and what is not in the moment.

>> Well, the way it's supposed to work is the military commanders at each level of the chain are supposed to have staff

judge advocate general officers, JAGs, who are advising them about the laws of war and what would cross the line. and

Pete Hex has a general counsel and is part of an administration that is advised by the Justice Department. But

one of the things we know about this operation as it was getting put together in July, August, early September leading

up to this initial attack is that the deliberations were very closely held

>> and that few career military lawyers were allowed into the room.

There weren't a lot of lawyers, uniform lawyers, non-politically appointed lawyers being allowed into the deliberations. Pete Hagsath comes up as

deliberations. Pete Hagsath comes up as a platoon leader in war, not a senior commander, and he seems to have acquired

a hostility towards the idea of military lawyers. He talks about them as jagoffs

lawyers. He talks about them as jagoffs in his memoir. He seems to blame them for rules of engagement that he found to be unduly restrictive about when his

troops could open fire on someone they saw as a threat. And he seems to misunderstand that the Jags are not the ones setting those rules, the commanders are. And he acquires from that this

are. And he acquires from that this hostility. And the first thing he does

hostility. And the first thing he does is he fires the top Jags of the services. you know, he's been trying to

services. you know, he's been trying to replace them with not career active duty jags that have come up through the Jag Corps, but with National Guardsmen who

are sort of more political officials coming out of states.

So, Charlie, what would the legal rationale be for Bradley to order that second strike? Like, what would that be

second strike? Like, what would that be based on? It's hard to answer not

based on? It's hard to answer not knowing the details of the sort of questions that we've been talking about that remain fuzzy. And one of the issues

here that listeners ought to understand is that we now know that behind the scenes, a couple days after this strike, the Justice Department's Office of Legal

Counsel, which is a very powerful node in the Executive Branch legal system, produced or signed a memo that said

it accepted Trump's determination that this is an armed conflict against these drug cartels and that all this stuff was lawful.

And part of the public justification of all this has been how is it that the cartels are attacking us? They're not

attacking us. They're selling an illicit consumer product. That's bad, but it's

consumer product. That's bad, but it's not an armed attack on us. And the the rhetorical justification has been, yes, but tens of thousands of Americans are dying from overdoses each year, and

that's equivalent to an attack.

>> So once it's an armed conflict, you can hit the boat supposedly. One of the things that this memo says that is different than the public rhetoric the

administration has been putting forward is that the drugs, the purported cargo on these boats is a lawful military

target. Why? Because the drug cartels

target. Why? Because the drug cartels could sell those drugs. They could get the profits and spend them on military equipment to sustain their supposed war

efforts against the United States. H.

>> And so part of this murkiness around what is the reason the US fires on this boat in the first instance keeps firing

on it until everyone is dead then the boat is at the bottom of the ocean is was the target of those follow-up strikes especially was it the drugs?

>> Was it the boat or was it the people?

Was it all of them in some confusing way? Because if Commander Bradley did

way? Because if Commander Bradley did that second strike in order to target the drugs on the boat and the killing of the two survivors was collateral damage, then theoretically that could be a

defense under what the DOJ laid out as kosher right?

>> Yes. Admiral Bradley is in a much stronger position if that's what he says and if there's contemporaneous evidence backing him up. Again though,

only if you accept in the first place that this is an armed conflict and this is the right lens to be bringing to bear on this at all. Because if it's not, they didn't have a right to kill the people in the first place.

>> It sounds like there are compelling reasons why the killing of the survivors of that initial strike could be a war crime if the intent was to kill them, which we do not know. And in fact, there

is so much that we don't know that we cannot say it sounds like anything definitively.

And because of that, I am reminded of the video that those six Democratic lawmakers released a couple weeks ago, which urged service members to ignore illegal orders. Given everything that

illegal orders. Given everything that we've discussed, how are service members supposed to understand what is legal and what is not?

It is an exceedingly difficult dilemma when you're faced with a commander-in-chief who's issuing orders

backed by a Justice Department memo that very few people outside of the current executive branch of government think holds water. What are soldiers supposed

holds water. What are soldiers supposed to do?

>> Right? And just to be clear, when the lawmakers made that video, were they aware of any of this? Were they talking about this? So, one of the interesting

about this? So, one of the interesting things about that video from those lawmakers who are all military intelligence veterans telling soldiers

you should not obey illegal orders is they don't say what illegal orders they have in mind. So, one of the complaints actually by the Trump administration of what are you talking about? Are you

saying we've given illegal orders? Which

ones? And you know, it could be something about the fact that Trump has been deploying troops into cities and some of them are acting kind of like police officers. It could be this boats

police officers. It could be this boats operation. But the Trump administration

operation. But the Trump administration responds very fiercely to that video and calls them insurrectionists and opens investigations of them for daring to say

this thing, which is actually just illegal truism. And that I think is a

illegal truism. And that I think is a contributing factor to why as the country's attention is returned to legal

controversies surrounding Trump's killing of people on these boats. The

reaction has been more fierce now than in September when it was still kind of a new thing that people were trying to wrap their heads around.

This legal cloud has been apparent since early September, and Congress, controlled by the Republican party, has

not been particularly interested in performing much oversight until now.

And so as this effort unfolds in coming days and weeks, it will be interesting to see how broad the focus is, what

questions lawmakers ask, and what information they're able to extract.

We'll be right back.

Charlie, before the break, you told us about these congressional calls for investigation.

What might that look like if it happened? And what power does Congress

happened? And what power does Congress actually have here?

>> So, now that some Republicans on the Armed Services committees appear to be interested in getting some answers, at least about this second missile strike

in this first attack. Congress is

therefore awakening. We do not know at this stage how far this oversight effort will go. It could be very searching. It

will go. It could be very searching. It

could be very limited. And all of that is going to depend on the appetite of Republicans to make life uncomfortable for the Trump administration, which as

any observer of politics knows is not something that is easy for them to do.

If they really want to get to the bottom of this, they have a number of things they can ask for and demand and push the limits to try to get

>> such as >> they can call witnesses and have them give sworn testimony. Heg

Seth, obviously Admiral Bradley, obviously there are things they could ask for as well. the the administration has released, as we know, this sort of

30 second edited surveillance clip that doesn't show the follow-up strikes. It

doesn't show people surviving the first attack, but they've, you know, they've got that video. In fact, the New York Times has filed a lawsuit for the

unedited video of that strike. Congress

also could demand that video. a retired

very senior JAG told me that one of the questions that could maybe be parsed through actual evidence is what kind of

missile was it that was fired at the boat the second time because they can be configured to be anti-personnel or anti-material.

anti-personnel missile can produce a lot of shrapnel to try to kill people as opposed to one that's trying to produce a big hole in a large object. So, which

kind did they shoot and did they have the other kind available? These are all the kinds of sort of evidentiary questions that if you're really drilling down into the nuances of these

nitty-gritty things of what was said and done at each moment, what was the intent, what was the understanding, Congress could demand and then see if

the Trump administration is willing to turn over.

>> I just want to understand what these investigations could even amount to. So

hypothetically, if Congress determines that the military broke the law, what then?

>> So obviously, Congress itself is a political body and it performs oversight and it appropriates funds and it passes laws. It doesn't prosecute people. So

laws. It doesn't prosecute people. So

it's not its job to bring charges against anyone.

>> Sure. It could cut off funds to the military for further boat strikes if it had the political will, meaning majority votes to do that in future

appropriations bills. It could refuse to

appropriations bills. It could refuse to confirm Trump appointees until the administration stops doing this thing it hypothetically thinks it ought to stop

doing. You know, ultimately, in theory,

doing. You know, ultimately, in theory, it could impeach Trump and remove him from office, but we all know as a matter of political reality that that's unlikely to happen. Even if Democrats

retake control of one or both chambers, they won't have the twothirds necessary to convict in the Senate.

>> What about that DOJ memo that we were talking about, though? Like, if the military broke the law, but they didn't go outside the bounds of what that memo authorized, is anybody vulnerable to any

consequences? So, what you're asking

consequences? So, what you're asking about now is if someone broke the law here, whether it's the entire operation or just this follow-up missile strike,

is there a place where theoretically someone could be charged, let's say, with murder or war crime down the road?

>> Mhm.

>> And the answer to that is it's very difficult to see where that could happen.

The fact is that right now while these actions are happening, the Justice Department's official position is this is lawful and that you can't prosecute someone just for doing anything that you yourself, that is the Justice

Department, said was lawful at the time.

They're relying on your asurances. You

can't bait and switch people. This is a matter of due process. And so this OLC memo, the Justice Department memo, a former head of OLC who teaches at Harvard now named Jack Goldsmith has

famously called them get out of jail free cards. Golden shields. You can just

free cards. Golden shields. You can just write down some nonsense on a piece of paper on OLC letterhead and suddenly people are free to do whatever that memo

says. And there's just not really a

says. And there's just not really a check on that. It's a it's just the way the structure the system is structured.

I just want to pause here because what you're saying is kind of remarkable. I

mean, you cannot write a contract, for instance, and have two parties sign it that breaks the law and say, "Well, we have a contract." What you are saying is that if the DOJ writes a memo and says that something is lawful, that protects

anybody carrying out orders within the bounds of that memo, even if by any other analysis, those actions are determined to be illegal. Just the fact that that memo exists, it sounds like,

protects people from prosecution, >> domestic, federal prosecution. That's

right. This is this is the power of the office of legal counsel within the Justice Department. And we saw an

Justice Department. And we saw an earlier round of this 20 years ago when after 9/11, the Bush administration had

in its office of legal counsel a lawyer named John Yu who had a idiosyncratically broad view of executive power that most people thought

was wrong. And under his view, the

was wrong. And under his view, the president could authorize anything he thought was necessary to protect national security. things like

national security. things like wiretapping without warrants, torturing prisoners. These memos are later

prisoners. These memos are later rescended, but they were there while this stuff was happening. And when Eric Holder, the

happening. And when Eric Holder, the liberal attorney general under Barack Obama, comes in in 2009 and opens a criminal investigation into the

treatment of detainees by the CIA under the Bush administration. Because of this problem of the OLC's asurances at the

time, he says, "We are only going to look at actions that went beyond the guidance that was blessed by the OLC."

So the OLC said you can waterboard people and you waterboarded people. Even

if everyone else says drowning people is torture and it's illegal, OLC said it was okay. We're not going to prosecute

was okay. We're not going to prosecute you for that.

>> Mhm. Now, the catch, of course, and this is where we circle back to this conversation about this second strike is the memo says apparently

because this is supposedly an armed conflict, strikes that comport with the law of war, the law of armed conflict are permissible.

>> Right? the second missile strike in the first attack which kills the shipwrecked survivors of the first missile strike

arguably does not comport with the law of armed conflict. And so that's one place where this particular strike as opposed to all the others might be more

vulnerable to later legal scrutiny because especially if there's evidence that Admiral Bradley's specific intent was to target the still living crew

members as opposed to the boat or the supposed cargo. That's a point where

supposed cargo. That's a point where despite the OLC memo, you could see a later prosecutor, I guess this would be in the court marshall system, were there

the political will to do so, taking a hard look at that, >> right? Basically, if the attempt was to

>> right? Basically, if the attempt was to kill the survivors of that first strike, it arguably would be outside the bounds of that memo and outside the bounds of what is considered legal warfare. So

therefore, the people who launched that strike potentially could be prosecuted >> potentially down the road if there's no sweeping preemptive pardon. Now, of

course, there's also international law.

There is a court in the Hague in the Netherlands called the International Criminal Court >> and it exists as a standing court to prosecute

war crimes, crimes against humanity, genocide. And I should note that we are

genocide. And I should note that we are not a party to the International Criminal Court.

>> We are not a party. The countries of Venezuela and Colombia among others are parties. And so there are circumstances

parties. And so there are circumstances in which in theory American officials could be prosecuted in the HEG for

actions, let's say, inside Venezuela against Venezuelans. In the same way,

against Venezuelans. In the same way, right now the court in the HEG has an arrest warrant for Vladimir Putin even though Russia is not a member of the

treaty that creates the court for his actions in Ukraine because Ukraine is a member.

>> Mhm.

>> But these boats attacks are for now at least all in international waters. And

these boats are not flying as far as we know or have seen on the videos any country's flag. They're not registered

country's flag. They're not registered to Venezuela or Colombia. They're just

little boats. They're not ships. And so

without being registered to a country, without being in the country's territory, there's no jurisdiction for the International Criminal Court over these attacks.

>> So nothing for now, unless this operation spreads to Venezuela, as it might, but for now, nothing on these attacks, including the September 2 attack, would come before the International Criminal Court.

Charlie, our conversation today was prompted by, as we discussed, more scrutiny about the second strike on that first boat and whether that violates the rules of armed conflict. But our

conversation was not prompted by the question of whether the entire operation to fire on these boats is illegal.

Right. And I am curious as somebody who has been following every turn of the story and is a national security expert, what do you think about this focus very

specifically on the second strike?

>> So on the one hand, it is good that people are paying attention. We're

seeing congressional oversight committees swinging into action, asking hard questions. We'll see how committed

hard questions. We'll see how committed they remain to, you know, getting the answers, but it looks kind of like the way congressional oversight is supposed

to function. And people are interested

to function. And people are interested in something that is objectively very important. On the other hand, the

important. On the other hand, the questions of who said what, when, with what intent, and with what interpretation about the second strike

are very narrow once you start really drilling down on it. in a way that is arguably distracting

from the broader issue that has been apparent from the beginning and is not limited to the second missile strike but to all the missile strikes. Mhm.

>> The United States is engaged in an extraordinary legally edgy to say the least operation

with literally deadly consequences.

And the broader issue of is this an armed conflict? Is this a war at all?

armed conflict? Is this a war at all?

Hangs over the entire thing.

And if it's not a war, if it's not an armed conflict, even if Trump says he's determined that it is one, then it's not

just those two deaths from that second missile on September 2nd that are an issue. There have been 21 boat strikes.

issue. There have been 21 boat strikes.

83 people have been killed.

And if it's not an armed conflict, then all 83 of those killings were arguably just murder,

>> Charlie Savage. Thank you so much.

>> Thank you.

On Tuesday, Defense Secretary Pete Hgsithth said that he had watched the September 2nd operation live on video, but said that he quote didn't stick

around to see the second strike.

>> So, you didn't see any survivors to be clear after the first strike?

>> I did not personally see survivors, but I stand cuz the thing was on fire. It

was exploded and fire and smoke. You

can't see anything. You got digital there. This is called the fog of war.

there. This is called the fog of war.

This is what you and the press don't understand. You sit your air condition

understand. You sit your air condition also stood by Admiral Frank Bradley's decision to order the second strike.

>> And by the way, Admiral Bradley made the correct decision to ultimately sink the boat and eliminate the threat. He sunk

the boat, sunk the boat, and eliminated it.

We'll be right back.

Here's what else you need to know. Dave,

>> I don't want them in our country. I'll

be honest with you. Okay. Somebody say,

"Oh, that's not politically correct." I

don't care. I don't want >> President Trump unleashed a xenophobic tirade against Somali immigrants on Tuesday.

>> And we're going to go the wrong way if we keep taking in garbage into our country. Elon,

country. Elon, >> it was an outburst that captured the raw nivism that has animated his approach to immigration. and they complain and do

immigration. and they complain and do nothing but We don't want them in our country. Let

them go back to where they came from and fix. The administration has focused on a

fix. The administration has focused on a recent investigation into fraud within the Somali community in Minnesota, where federal prosecutors charged dozens of people with felonies, including

accusations that people stole hundreds of millions of dollars from a government program meant to keep children fed during the CO 19 pandemic.

And Matt Van Eps, a Republican former state official and Army veteran, won a special election for the House on Tuesday in Tennessee, holding off a

surprisingly stiff Democratic challenge in an overwhelmingly Republican district that drew a flood of national attention and money.

The result is a boon in the short term for President Trump and the Republican party, which had worried that its narrow House majority would grow even slimmer.

But the relatively tight margin in a deep red district still represents a warning shot about the party's vulnerabilities ahead of next year's midterms.

Today's episode was produced by Rob Zipco and Jessica Chung. It was edited by Lizo Balin and Paige Cowat, contains

music by Alicia Beetup and Diane Wong, and was engineered by Alyssa Moxley.

That's it for the daily. I'm Rachel

Abrams. See you tomorrow.