By Andrew C. McCarthy

November 29, 2025 8:20 PM

An explosive Washington Post report, the subject of so much discussion the past two days, says that, in the first missile strike the Trump Defense Department carried out against operatives of a boat suspected of transporting narcotics on the high seas off Venezuela, two survivors were rendered shipwrecked. As they clung to the wreckage, the U.S. commander ordered a second strike, which killed them.

If this happened as described in the Post report, it was, at best, a war crime under federal law. I say “at best” because, as regular readers know, I believe the attacks on these suspected drug boats — without congressional authorization, under circumstances in which the boat operators pose no military threat to the United States, and given that narcotics trafficking is defined in federal law as a crime rather than as terrorist activity, much less an act or war — are lawless and therefore that the killings are not legitimate under the law or armed conflict. (See my Saturday column, with links to prior posts on this subject.)

Nevertheless, even if we stipulate arguendo that the administration has a colorable claim that our forces are in an armed conflict with non-state actors (i.e., suspected members of drug cartels that the administration has dubiously designated as foreign terrorist organizations (FTOs)), the laws of war do not permit the killing of combatants who have been rendered hors de combat (out of the fighting) — including by shipwreck.

To reiterate, I don’t accept that the ship operators are enemy combatants — even if one overlooks that the administration has not proven that they are drug traffickers or members of designated FTOs. There is no armed conflict. They may be criminals (if it is proven that they are importing illegal narcotics), but they are not combatants.

My point, nevertheless, is that even if you buy the untenable claim that they are combatants, it is a war crime to intentionally kill combatants who have been rendered unable to fight. It is not permitted, under the laws and customs of honorable warfare, to order that no quarter be given — to apply lethal force to those who surrender or who are injured, shipwrecked, or otherwise unable to fight.

According to the Post, two unidentified sources said, prior to the September 2 attack that killed at least eleven people, that Secretary Pete Hegseth gave a spoken directive, which one source described as “the order was to kill everybody.”

The operation, led by SEAL Team 6, was directed from Fort Bragg, N.C., by Admiral Frank M. “Mitch” Bradley, then the head of Joint Special Operations Command. Admiral Bradley is said to have ordered the attack against the two survivors of the first strike in order to comply with Hegseth’s directive to kill the boat’s operators. Two sources told the Post:

Bradley told people on the secure conference call that the survivors were still legitimate targets because they could theoretically call other traffickers to retrieve them and their cargo.

Hegseth, responding to the Post report on X, begins with the familiar pining about how all derogatory reporting about the Trump administration is “fake news,” but then doesn’t actually rebut any assertion in the report. He does state:

As we’ve said from the beginning, and in every statement, these highly effective strikes are specifically intended to be “lethal, kinetic strikes.” The declared intent is to stop lethal drugs, destroy narco-boats, and kill the narco-terrorists who are poisoning the American people. [Emphasis added.]

Neither Hegseth’s statement nor the explanation attributed to Bradley (and excerpted above) makes legal sense.

The laws of war, as they are incorporated into federal law, make lethal force unlawful if it is used under certain circumstances. Hence, it cannot be a defense to say, as Hegseth does, that one has killed because one’s objective was “lethal, kinetic strikes.”

Moreover, if an arguable combatant has been rendered hors de combat, targeting him with lethal force cannot be rationalized, as Bradley is said to have done, by theorizing that it was possible, at some future point, that the combatant could get help and be able to contribute once again to enemy operations.

The 1949 Geneva Conventions were ratified by the United States. Consequently, Common Article 3 (CA3) of the convention binds our government. CA3 prohibits “violence to life and person, in particular murder of all kinds,” of “persons taking no active part in hostilities” (emphasis added). According to CA3, persons taking no active part in hostilities include “those placed hors de combat by sickness, wounds, detention, or any other cause.”

That includes persons who have been wounded in an attack and are shipwrecked. If that were not obvious enough on its face, Jack Goldsmith, who headed the Justice Department’s Office of Legal Counsel in the Bush 43 administration, notes that the Department of Defense Law of War Manual defines hors de combat to include persons “otherwise incapacitated by . . . shipwreck.” (This appears in an essential post on Goldsmith’s Substack, Executive Functions.)

Congress has incorporated “grave breaches” of CA3 in the penal code’s war crimes statute — Section 2441 — when “committed in the context of and in association with an armed conflict not of an international character” (which is how the administration describes its operations in the Caribbean). These grave breaches include “murder,” defined as follows:

The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause. [Emphasis added.]

Other offenses under the subsection include “intentionally causing serious bodily injury.”

I don’t mean to be melodramatic (especially because, as I’ve discussed with Rich on the podcast, President Trump is undoubtedly going to pardon any administration officials in potential legal jeopardy), but the penalty for a war crimes violation is life imprisonment, or death, if the criminal act results in death.

Finally, I would observe that — again, if the Post report is accurate — Hegseth and his commanders changed the protocols after the September 2 attack, “to emphasize rescuing suspected smugglers if they survived strikes.” This is why two survivors in a subsequent strike (on October 16) were captured and then repatriated to their native countries (Colombia and Ecuador).

This was a ludicrous outcome: under prior policy, the boat would have been interdicted, the drugs seized, and the operators transferred to federal court for prosecution and hefty sentences. Under the Trump administration’s policy, if the operators survive our missiles, they get to go back home and rejoin the drug trade. But put that aside. The point is that, if the administration’s intent to apply lethal force were a defense to killing shipwrecked suspected drug traffickers, the policy wouldn’t have been changed. It was changed because Hegseth knows he can’t justify killing boat operators who survive attacks; and he sends them home rather than detaining them as enemy combatants because, similarly, there is no actual armed conflict, so there is no basis to detain them as enemy combatants.

This is a very serious matter. The administration’s defense can’t be that “we killed them because our plan is to use lethal force.”

https://www.nationalreview.com/corner/we-intended-the-strike-to-be-lethal-is-not-a-defense/

(http://www.autoadmit.com/thread.php?thread_id=5804280&forum_id=2#49471295)