Since The Post’s blockbuster report that the U.S. military executed a follow-on strike on an alleged drug boat on Sept. 2 — hitting the boat once, then hitting it again after survivors were seen in the wreckage — the administration’s allies have offered two lines of defense.
The first is that Defense Secretary Pete Hegseth never specifically ordered the killing of survivors of the first strike. The order for the follow-on strike was given by Adm. Frank M. Bradley, as The Post reported. But that’s only a defense of Hegseth if he’s trying to pin blame on Bradley. He’s not. The secretary of defense is fully backing Bradley and emphatically endorsing his decision to strike again at the disabled boat and its survivors. Whatever the wording of Hegseth’s orders at the start of the operation, Bradley’s decision apparently complied with them.
The second defense is therefore that the follow-on strikes were justified. Republican and Democratic congressmen who watched videos of the strikes Thursday offered differing accounts. While Democrats say the survivors of the first strike were helpless or shipwrecked, Republicans argue that they were not: The men might have been trying to save their cargo, or trying to communicate with other drug traffickers, or trying to flip the bombed-out boat. Therefore, Republicans argue, they were still active “narco-terrorists” subject to further attack under the laws of war.
That legal question is a rabbit hole. Even if the Pentagon releases the full footage of the attacks, partisans will see what they want to see. The Defense Department manual forbids attacks on people who are “incapacitated by wounds, sickness, or shipwreck, such that they are no longer capable of fighting.” Were the survivors “incapacitated”? It’s a subjective judgment, and pundits can spend hours arguing both sides of the question in TV studios based on the men’s movements in the video.
That legalism risks becoming the focus of this scandal. But it’s beside the point: Nobody is going to be criminally prosecuted. The legal advice the military acted on probably confers a measure of immunity, and President Donald Trump can pardon those involved anyway.
So Congress should resist missing the forest for the trees. The second strike might be subject to a unique legal analysis, but the notion that the president has inherent constitutional powers to summarily kill people he suspects of trafficking cocaine is bankrupt to begin with. Applying the “laws of war” to drug interdiction — a civilian law enforcement duty — is incoherent. This “double-tap” scandal is a blaring exclamation point on that basic problem.
Imagine if, in a war over Taiwan, China sent special forces on speedboats to attack the nearby American military base in Okinawa, Japan. And imagine the secretary of defense gave naval commanders orders to destroy the speedboats and kill the enemy soldiers on board. That would not be a scandal, even if the footage of individual strikes was almost identical to the footage of the strikes in the Caribbean in September. The legal ambiguities about whether the survivors were “incapacitated” turn to a large extent on whether the use of force is legitimate self-defense to begin with.
“If you think these strikes are justified and righteous, as I do,” Senate Intelligence Committee Chairman Tom Cotton (R-Arkansas) told reporters, “then of course the second strike” is as well. “You have two survivors who are trying to flip their boat back over, and continue on their mission, remain in the battle,” he argued. Cotton has a point — if you accept the preposterous assertion that selling cocaine puts a civilian “in the battle.”
In other words, the middle ground in this controversy is evaporating. Either you oppose the campaign of summary killings of civilians allegedly running drugs in the Caribbean, or you endorse all of it. To endorse the policy but oppose its execution in this one instance is a politically thin reed. (Trump himself initially occupied that middle ground, saying he “wouldn’t have wanted” the second strike, but the White House has since flipped to full support of the operation).
Congressional oversight investigations often take the form of legal inquisitions. The allegations of illegality around the Sept. 2 strikes piqued Congress’s interest. But the military remains far more respected than politicians. Congressmen second-guessing the good-faith judgment of men like Bradley as to whether a particular target was legally legitimate seems like a dead end. Nor should the investigations prompt a tightening of the military’s rules of engagement. Efforts to make wars “humane” often fail, and can even extend conflicts. War should be fast and lethal — and rare.
The problem here is not any particular order in the chain of command. It’s that the Trump administration has defined war as something it isn’t. That rotten policy — that attack on common sense — needs to be the subject of any successful congressional response to what happened on Sept. 2.
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