Triumph

Washington- Scrutiny over the Trump administration’s attacks on suspected drug smuggling ships has intensified following the revelation that the first US attack on such a ship involved more than one attack, including one that killed survivors of the initial attack.

Members of Congress, mostly Democrats, were already raising questions about the legality of the attacks and warned that a continued campaign against suspected drug traffickers in the region could lead to war with Venezuela. New details about the September 2 attack have now led some lawmakers to openly question whether the attack on survivors was a war crime.

Navy Admiral Frank “Mitch” Bradley, the commander who oversaw the September 2 operation, briefed small groups of legislators about Thursday’s strikes.

Rep. Jim Himes of Connecticut, the ranking Democrat on the House Intelligence Committee, and Republican Sen. Tom Cotton of Arkansas, chairman of the Senate Intelligence Committee, told reporters after the classified briefings that Bradley said Defense Secretary Pete Hegseth had not ordered him to “kill everyone,” as the Washington Post reported last week.

But Himes added that lawmakers were shown video of the second attack and said “what I saw in that room was one of the most disturbing things I’ve seen in my time in public service.” Cotton defended the attack, saying he “saw two survivors trying to capsize a ship loaded with drugs bound for the United States so they could continue fighting.”

As lawmakers continue to investigate the events of what happened on September 2, questions remain about the legality of the current campaign against alleged drug ships, and experts and former officials say the attacks were shaky ground even before the latest revelations.

The ship crashes

Since the first attack on September 2, the United States has carried out another 20 attacks through Nov. 15, killing more than 80 people who the Trump administration says have been trafficking drugs in the Caribbean and eastern Pacific Ocean.

In a notification to Congress in mid-September, the Trump administration said the United States is in a “non-international armed conflict” with drug cartels it has designated as terrorist organizations. Drugs smuggled by these cartels kill tens of thousands of Americans each year and constitute an “armed attack” against American citizens, according to the White House.

“We have legal authority. We are allowed to do that,” President Trump told reporters on October 22. “They killed 300,000 people last year. The drugs, these drugs came. They killed 300,000 Americans last year, and that gives you legal authority.”

Analysis from The Free Press: Killing survivors of fast drug boats is a war crime

But the Justice Department’s Office of Legal Counsel’s opinion justifying the strikes remains classified. A group of Senate Democrats called for an “expedited declassification” of the legal opinion in a letter last week to Hegseth and Attorney General Pam Bondi.

“Few decisions are more consequential for a democracy than the use of lethal force,” they wrote. “Therefore, we believe that declassification and public release of this important document would improve transparency in the use of deadly force by our nation’s military and is necessary to ensure that Congress and the American people are fully informed of the legal justification behind these attacks.”

Congressional Consent

Legal experts and lawmakers critical of the attacks have argued that military action against suspected drug trafficking ships was already legally dubious before the recent revelations because the president lacked the authority to carry them out.

Under the War Powers Resolution of 1973, the president must consult Congress “in all practicable cases” before introducing armed forces into hostilities, unless there has been a declaration of war or other congressional authorization.

In emergency situations, the administration must report to Congress within 48 hours and cease hostilities within 60 days, absent congressional authorization. The 60-day period expired a month ago.

The law was enacted in response to the Vietnam War as a check on the president’s power to wage war without the consent of Congress.

When asked in early November whether the administration planned to seek congressional authorization, a senior administration official responded that “the 1973 resolution has been understood to apply to putting U.S. service members in harm’s way.”

The official suggested that the strikes do not pose a threat to service members, as the attacks have largely been carried out by drones launched from warships “at distances too far for the crews of the target vessels to endanger U.S. personnel.” The official added that the government does not consider attacks against suspected drug traffickers as “hostilities.”

Congress has not authorized the use of military force against Venezuela. Republicans have largely asserted that the president acts under his Article II constitutional authority, and Senate Republicans have twice blocked bipartisan efforts intended to prevent Trump from continuing military actions in the region without congressional approval.

But new details about the September 2 strike appear to have changed some opinions. The Republican-led Senate and House Armed Services Committees have opened bipartisan investigations into the circumstances of the first attack.

‘There’s nothing magical about calling something a terrorist organization,’ says former military prosecutor

The Trump administration’s claim of a “non-international armed conflict” is also flawed, experts say, because drug cartels are not considered organized armed groups under the law of armed conflict.

“There is no international armed conflict because, among other thingsthere are no hostilities between states nor the required degree of state control over the alleged drug cartels that operate the ships. And there is no non-international armed conflict, both because the cartels in question do not qualify as organized armed groups in the [law of armed conflict] sense, and because there were no hostilities between the United States and the cartels on September 2, much less hostilities that would reach the required level of intensity to cross the threshold of armed conflict,” legal experts Michael Schmitt, Ryan Goodman and Tess Bridgeman wrote in a December 1 article published by Just Security.

Designating drug cartels as terrorist organizations also does not give the administration authority to use military force in the way it has, said Brian Finucane, senior adviser to the International Crisis Group and former State Department lawyer.

“They have no military hierarchies, they have no ability to engage in combat operations, so it is absurd to claim that the United States is somehow in an armed conflict with them,” Finucane said.

Victor Hansen, a former military prosecutor and law professor at New England Law Boston, said drug cartels would remain subject to civilian law even with the terrorist group designation.

“There is nothing magical about calling something a terrorist organization and then giving the president the authority to respond militarily,” Hansen said.

Trump ‘wants it both ways,’ says expert

The Trump administration’s characterization of the attacks as an “armed conflict” imposes additional duties and responsibilities on how the attacks are carried out, according to Hansen.

If the attacks have not yet crossed a legal line, the intentional killing of the survivors may have.

The Geneva Conventions, which are the core of the law of armed conflict, prohibit attacking defenseless civilians or members of armed forces. International treaties adopted in 1949 also require that the wounded be “collected and cared for.”

The Department of Defense’s Law of War Manual says that “it is also prohibited to conduct hostilities on the basis that there will be no survivors, or to threaten an adversary with denial of quarter.” The rule applies “during a non-international armed conflict.”

“The president wants it both ways. He wants to call it armed conflict, but he doesn’t even want to follow the rules of armed conflict,” Hansen said.

The Post reported that a change in protocol was implemented after the Sept. 2 attack to emphasize rescuing survivors, a detail that News themezone has not confirmed. Two men who survived an attack in the Caribbean on October 16 were rescued by the United States Navy and repatriated to their home countries: Ecuador and Colombia. The Oct. 27 attacks in the Pacific left one survivor, and Mexico led the search effort but suspended the search after four days, according to media reports.

However, after Thursday’s briefing, Cotton said there had been no changes in the way the military treats survivors.

“There has been no change in the guidance or order that the secretary has given to our troops,” the Arkansas Republican said. “In later attacks, there is an example where the survivors were shipwrecked and distraught and did not attempt to continue their mission, and were treated as they should be, as non-combatants.”

The second strike and what laws may have been broken

There is growing debate over whether the subsequent attack that killed two survivors is a war crime.

Congressional Democrats have saying that if the reports are accurate, the action constitutes a war crime. Republican Rep. Mike Turner of Ohio, a member of the House Armed Services Committee, said “Face the Nation” on Sunday that it would be “an illegal act” that is “completely outside of everything that has been discussed with Congress.”

“I think there’s a broad consensus that it’s illegal to kill people who are clinging to rubble,” Republican Sen. Rand Paul of Kentucky told reporters Tuesday.

Lawmakers and military experts say the next question is what laws may have been violated, and that largely depends on the laws governing the attacks.

“If we’re not in an armed conflict to begin with, then the whole paradigm, the legal paradigm of the laws that govern an armed conflict, doesn’t apply,” Hansen said. “So what applies? Well, the national law. So, it’s murder under the national law because you can’t kill someone, even if you think they’re a criminal, without a sentence.”

“Arguably no order to kill them is legal,” Hansen added. “Because according to national law, we do not kill people without putting them on trial and without giving them due process.”

Finucane also believes that the attacks would be subject to national military legislation.

“It involves murder on the high seas, conspiracy to commit murder outside the United States, so the murder born is also a crime under the Uniform Code of Military Justice,” he said.

If the operation is an armed conflict, as the Trump administration suggests, the actions could constitute a war crime.

“The ‘kill all’ orders, which can reasonably be considered an order to ‘give no quarter’ and to ‘double knock’ a target to kill survivors, are clearly illegal under international law,” a group of former military lawyers noted in an assessment on Saturday. “In short, they are war crimes.”

Former Defense Secretary Leon Panetta called the second attack a war crime in an interview with News themezone on Monday.

“The basic rules of war that are involved here make it very clear that you don’t hit the wounded in the water to kill them. Basically, then you are responsible for trying to make sure that you do everything you can to try to protect their lives at that time. And that’s the concern right now, whether or not this actually violated the rules of war and constituted a criminal act.”

At a Cabinet meeting on Tuesday, Hegseth said the United States “has only just begun attacking narco ships and dumping narco terrorists to the bottom of the ocean.” He noted a recent lull in strikes and explained that “it’s hard to find ships to attack right now.”

“Deterrence has to matter,” he said. “Not arrest and deliver and then do it again, the rinse and repeat approach of previous administrations.”

On Thursday night, the US Southern Command announced that another attack had killed four people in the Eastern Pacific.