Hegseth ordered a lethal attack but not the killing of survivors, White House officials say

The Trump administration on Monday defended the legality of a September 2 attack on a boat in the Caribbean Sea as calls grew in Congress to examine whether a follow-up missile strike that killed survivors amounted to a crime.

The lethal attack was the first in President Donald Trump’s legally disputed campaign of killing people suspected of smuggling drugs at sea as if they were combatants in a war. It has started coming under intense bipartisan scrutiny in recent days amid questions about the decision to kill the initial survivors and what orders were issued by Defence Secretary Pete Hegseth.

At the White House on Monday, press secretary Karoline Leavitt read a statement that said Mr Hegseth had authorised the Special Operations commander overseeing the attack, Admiral Frank M. Bradley, “to conduct these kinetic strikes.”

She said that Admiral Bradley had “worked well within his authority and the law directing the engagement to ensure the boat was destroyed and the threat to the United States of America was eliminated.”

According to five US officials, who spoke separately and on the condition of anonymity to discuss a sensitive matter that is under investigation, Mr Hegseth, before the September 2 attack, ordered a strike that would kill the people on the boat and destroy the vessel and its purported cargo of drugs.

But, each official said, Mr Hegseth’s directive did not specifically address what should happen if a first missile turned out not to fully accomplish all of those things. And, the officials said, his order was not a response to surveillance footage showing that at least two people on the boat survived the first blast.

Admiral Bradley ordered the initial missile strike and then several follow-up strikes that killed the initial survivors and sank the disabled boat. As that operation unfolded, they said, Mr Hegseth did not give any further orders to him.

The officials clarified the sequence of events amid the political and legal uproar that has followed a report in The Washington Post last week. It said that Admiral Bradley ordered the second strike to fulfil a directive by Mr Hegseth to kill everyone. The reaction has included questions about whether Mr Hegseth specifically ordered an execution of shipwrecked sailors in violation of the laws of war.

Speaking to reporters Sunday night, Mr Trump said that Mr Hegseth had denied ordering a second strike to kill two people who were wounded but still alive after the first one, saying, “Pete said he did not order the death of those two men.”

Mr Trump also sought to distance himself from the follow-up strike, saying he “wouldn’t have wanted that, not a second strike,” although he said the first one was “fine.” He defended his broader policy of having the military use lethal force against people suspected of smuggling drugs. Starting with the September 2 attack, his administration has said it has carried out 21 such strikes in the Caribbean Sea and eastern Pacific Ocean, killing 83 people.

Mr Hegseth called the Post’s reporting “fabricated” and “inflammatory.” “As we’ve said from the beginning, and in every statement, these highly effective strikes are specifically intended to be ‘lethal, kinetic strikes,’” he wrote on social media.

On Monday, Senator Roger Wicker, the Republican chair of the Armed Services Committee, said that he had spoken with Mr Hegseth and General Dan Caine, chair of the Joint Chiefs of Staff, about the strikes and that his committee would conduct a congressional investigation into the matter.

Mr Hegseth also spoke with Alaskan Republican representative Mike Rogers, chair of the House Armed Services Committee, according to a US official.

In interviews Monday, two US officials — both of whom were supportive of the administration’s boat strikes — described a meeting before the attack at which Mr Hegseth had briefed Special Operations Forces commanders on his execute order to engage the boat with lethal force.

That written order, they said, did not address what should happen if people survived the first strike.

Several people familiar with the congressional effort said lawmakers had asked to see a copy of the execute order and that the administration refused to turn it over.

The two officials also said Mr Hegseth made no verbal directive at the meeting that went beyond the written order. The Post article did not provide context on when Mr Hegseth gave what its sources described as a spoken order to kill everyone.

The two officials questioned whether the surviving people were Admiral Bradley’s intended target in the second strike, as opposed to the purported drugs and the disabled vessel. They argued that the purported cargo remained a threat and a lawful military target because another cartel-associated boat might have come to retrieve it.

One of the officials said the US military intercepted radio communications from one of the survivors to what the official said were narcotraffickers. If so, members of Congress could request those communications as part of its oversight investigation.

The suggestion that Mr Hegseth, Admiral Bradley or both targeted shipwrecked survivors has been galvanizing because that would apparently be a war crime even if one accepts the Trump administration’s disputed argument for why its boat attacks have been lawful.

Generally, a military cannot deliberately attack civilians, even suspected criminals, who do not pose an imminent threat. The administration has argued the strikes are nevertheless lawful because Mr Trump has “determined” that the United States is in a formal armed conflict with drug cartels, even though Congress has not declared any such war.

Mr Trump has also “determined” that the crews of the boats are “combatants.” A still-secret memo by the Justice Department’s Office of Legal Counsel accepts Mr Trump’s determinations, according to people who have read it, adding it concluded that suspected shipments of drugs are lawful military targets to prevent cartels from using them to finance their war efforts.

A broad range of legal experts reject that analysis. But even if this were an armed conflict, it is a war crime to kill enemies who are out of the fight. That category includes enemy fighters who have surrendered or are otherwise defenseless and pose no threat.

“Members of the armed forces must refuse to comply with clearly illegal orders to commit law of war violations,” the Pentagon’s law of war manual says, adding: “For example, orders to fire upon the shipwrecked would be clearly illegal.”

It also says that it is “prohibited to conduct hostilities on the basis that there shall be no survivors, or to threaten the adversary with the denial of quarter,” which means refusing to spare the life of an enemy who has surrendered or is unable to fight.

Geoffrey Corn, who was the Army’s senior adviser for law-of-war issues, said he believed the entire attack was illegal, because he rejects the administration’s argument that the situation can be legitimately treated as an armed conflict.

But even if it were one, he said, an order specifically to finish off shipwrecked survivors — whether or not Admiral Bradley believed he was carrying out Mr Hegseth’s instructions — would be unambiguously criminal.

Still, he said, if Admiral Bradley’s order was instead to finish destroying the vessel, even if people were clinging to it, that would be more complicated.

In a real naval armed conflict, he said, it is lawful to fire on a partly disabled enemy warship that is continuing to manoeuvre or fire its guns, even if there are wounded sailors aboard or shipwrecked sailors clinging to it. But if a warship signals it is out of the fight by ceasing firing and lowering its colours, he said, then it becomes illegal to keep firing upon it.

The problem with all that, he said, is that the speedboat was not a warship with guns to stop firing and colours to lower.

“This is the consequence of treating something that is not really an armed conflict as an armed conflict,” he said. The speedboat could not signal it was out of the fight because “it was not really fighting to begin with.”

Mr Corn, who now teaches military law at Texas Tech University, said that as lawmakers seek answers, they could look into whether the missile used in the second strike was configured as an anti-personnel device — one that is designed to produce lots of shrapnel — or was instead configured to cause maximal damage to a large object.

This article originally appeared in The New York Times.

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