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

From The New York Times, >> [music]. >> I'm Rachel Abrams and this is The Daily. >> [music]. >> It's been 3 months since the American. military began firing on boats from. South America, killing more than 80. people [music] and prompting Democrats. to raise urgent questions about whether. these attacks might be illegal. [music]. But now We're going to conduct oversight. and. >> [music]. >> 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 [music] 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 [music] in. Today, my colleague Charlie Savage. explains the renewed debate [music] and. how the administration is justifying its. actions.

It's [music] 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.

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 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 bones. [music]. This new 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. Hegseth said to kill. 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. Mhm. The administration has. put forward a legal theory that this is. an armed 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 boats smuggling these. drugs, supposedly for the drug cartels, are not 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. Mhm. 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 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 Hegseth did or did not do in. relation to that September 2nd strike? Like, what do we know about the order he.

gave? So, Hegseth has acknowledged from. the beginning that he authorized a. lethal strike on this boat. This was not. a 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 orders he gave. contemplated that the first missile. wouldn't accomplish all those things and.

that there might be shipwrecked. survivors. And if that happened, should. they be killed too? Or was the order silent on that. possibility? But whatever was in those orders. we have been told that Hegseth gave no. additional instructions to Bradley once. the attack commenced. Mhm. 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 Hegseth. said. or. intended, the next question is what did. Admiral Bradley understand his orders to. be? Is his intent. we want to kill those 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? Then 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. that are 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 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 Hegseth, 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 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 has stressed that Hegseth.

did not specifically order the killing. of the two initial survivors. and has suggested that that is a. misinterpretation. 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 on Sunday night.

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 in the second. strike. The first strike was very legal, it was. fine. And if there were two people. around, but Pete said that didn't. happen. Does that make you. >> 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. Well, why not? And And it's it 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. Hegseth 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 Hegseth has a general counsel. And he's 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. >> Mhm. and that few career. military lawyers were allowed into the. room. >> [music]. >> There weren't a lot of lawyers, uniform. lawyers, non-politically appointed. lawyers being allowed into the. deliberations. Pete Hegseth 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 JAG offs 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 hostility. And. the first thing he does. is he fires the top JAGs of the.

services. You you know, he's been trying. to replace them with. not career [music]. 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. 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 the. 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 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. Mhm. 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 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. Mhm. 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? Mhm. Was it the boat? Or was it the people? Was it all of them. in some confusing 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'm 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 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 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 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, well, 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. like some of them are acting kind of. like police officers. It could be this. boat's 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 a. legal 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. >> Mhm. >> [music]. >> This legal cloud has been apparent since. early September. And Congress, controlled by the.

Republican Party, has [music] 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.

>> [music]. >> 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. 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 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. Hegseth, 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, >> [snorts]. >> Congress could demand. and then see if the Trump administration. is willing. to turn over. I I 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, it's not its job to bring. charges against anyone. 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 confirm. Trump appointees until the.

administration stops doing this thing it. hypothetically thinks it ought to stop. doing. >> [gasps]. >> 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 two-thirds 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 of the. bounds of the what that memo authorized,

is anybody vulnerable to any. consequences? So, the 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 then 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. assurances. 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.

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. check on that. It's a It's a just a 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 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 Yoo who had a. idiosyncratically broad view of. executive power. that most people thought was wrong. And under his view, the president could. authorize anything he thought was. necessary to protect national security, things like wiretapping without. warrants, torturing prisoners. These. memos are later rescinded, but they were there while this stuff was. 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 assurances 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, the OLC said. it 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 the 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. >> [snorts]. >> That's a point where, despite the OLC. memo, you could see a later prosecutor, I. guess this would be in the court-martial. system, were there the political will to do so, taking a hard look at that. Right. Basically, if the intent 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. >> Mhm. And it exists as a standing court. to prosecute. war crimes, crimes against humanity, 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 in. which, in theory, American officials could be prosecuted. in The Hague. for actions, let's say, inside. Venezuela, against Venezuelans. In the. same way, right now, the court in The. Hague has an arrest warrant for Vladimir. Putin, even though Russia is not a member of.

the 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 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 [snorts] 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 this. 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 they remain to, you know, getting the answers, but it. looks kind of like the way congressional. oversight is supposed to function. And [snorts] people are interested in. something that is objectively very. 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. 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, hangs over the entire thing. >> [music]. >> 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 at issue. There have been 21 boat strikes. [music]. 83 people have been killed. And [music] if it's not an armed. conflict, then all 83 of those killings. were arguably. >> [music]. >> just murder. Charlie Savage, thank you so much. [music] Thank you. >> [music].

>> On Tuesday, Defense Secretary Pete. Hegseth said that he had watched the. September 2nd operation live on video, >> [music]. >> 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. You personally. >> 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's This is called the fog of war. This is what you and the press.

don't understand. You sit in your. air-conditioned. >> Hegseth also stood by Admiral Frank. Bradley's decision [music] 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 [music] the boat. and eliminated the. We'll be right back. Here's what else you need to know today. I don't want them in our country. I'll.

be honest with you, okay? Some would. say, "Oh, that's not politically. correct." I don't care. I don't want. [music]. >> 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 was an outburst that captured the. raw nativism that has animated his. approach to immigration. >> [music]. >> And they complain. and do nothing but. >> [music]. >> 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. recent investigation into fraud within. the Somali [music] community in. Minnesota, where federal prosecutors charged dozens. of people with felonies, including. accusations [music]. that people stole hundreds of millions. of dollars from a government program. meant to keep children fed [music]. during the COVID-19 pandemic. And [music]. Matt Van Epps, a Republican former state. official and Army veteran,

>> [music]. >> 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 [music]. 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 [music]. slimmer. But the relatively tight margin in a. deep red district still represents a.

warning shot [music] about the party's. vulnerabilities ahead of next year's. midterms. Today's episode [music] was produced by. Rob Zipko and Jessica Chung. It was edited by Lisa Tobin and Paige. Cowett. [music]. Today's music by Alicia at YouTube and. Diane Wong. It was engineered by Alyssa Moxley. >> [music].

>> That's it for The Daily. [music]. I'm Rachel Abrams. See you tomorrow.