Pete Hegseth was put on notice over the weekend by two conservative lawyers, including a former prosecutor, who said the Defense Secretary’s defense to a major new scandal “makes no legal sense” and is not really “a defense.”
Observers’ eyebrows were raised after it was reported by the Washington Post in a bombshell story that Hegseth ordered the killing of two survivors of one of controversial drug vessel bombings. Some analysts questioned whether it was murder, or even a war crime.
Former prosecutor Andrew McCarthy, who served as an assistant U.S. attorney for the Southern District of New York, recently said he has no love for the “craven video” Sen. Mark Kelly (D-Ariz.) and five Democrats released to the public advising military members to ignore illegal orders. At the same time, McCarthy suggested President Donald Trump’s executive power abuses in reacting to it represent a whole “new level” of threat.
Now, in an essay late Saturday night, the conservative weighed in on Hegseth’s new scandal.
“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,” the attorney wrote.
McCarthy goes even further, suggesting 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.”
He continued, writing, “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.”
While Bradley reportedly claimed “the survivors were still legitimate targets because they could theoretically call other traffickers to retrieve them and their cargo,” and Hegseth issued a response saying these were always meant to be deadly attacks, McCarthy isn’t sold.
“Neither Hegseth’s statement nor the explanation attributed to Bradley… makes legal sense,” the former prosecutor wrote. “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.’”
Conservative attorney George Conway shared McCarthy’s essay and wrote, “Indeed, it’s a confession and admission of guilt to heinous crimes.”
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