Are strikes against alleged 'nacro-terrorist' boats unlawful?

S1: Welcome in San Diego. It's Jade Hindman on today's show. How lawful are boat strikes in the Caribbean ? Our military and veteran affairs reporter Andrew Dyer , gets reaction from local military and legislative leaders on the lawfulness of boat strikes that have killed several people. This is KPBS Midday Edition. Connecting our communities through conversation. Lawmakers on both sides of the aisle are investigating both strikes. But the US military about the by the US military in the Caribbean rather. Last week , two survivors of a September 2nd strike on an alleged drug trafficking boat were killed while clinging to debris in the water. Reports say that Defense Secretary Pete Hegseth ordered there be no survivors. If that is true , it would violate human rights law. Joining me to talk about it is Andrew Dyer. He's military and veteran affairs reporter for KPBS. Andrew , welcome. Hi.

S2: Hi. Thanks for having me.

S1: Glad you're here. So bring me up to speed about the September 2nd strike. That's really at the center of this.

S2: That was the first of about 23 strikes on alleged drug boats in first in the Caribbean , and more lately , pivoting to the Pacific. Um , now the it was the first strike , but the thing that pushed it more in the news was over Thanksgiving , uh , a story that , uh , during this strike , uh , we knew that it hit a boat that killed people , but that there was survivors in the water who were then , uh , killed in a a second strike. Um , that has come out since then that , you know , 45 minutes passed between the first and second strikes. And , um , you know , this has raised a whole lot of issues with not just that strike , but the legality of all the strikes.

S1: Well , over the weekend , Defense Secretary Hegseth took some questions at a defense forum at the Ronald Reagan Presidential Library. He said he fully supports the September strike made by Admiral Bradley. Take a listen.

S3: I was told , hey , there had to be a re attack because there were a couple of folks that could still be in the fight. Access to radios. There was a link up point of another potential boat. Drugs were still there. They were actively interacting with them. Had to take that raid. I said , Roger , sounds good. Um , from what I understood then and what I understand now , I fully support that strike. I would have made the same call myself.

S1:

S2: Every time he talks publicly. He talks about bringing back warrior ethos to the military. He talks about , um , Taking the shackles off of military commanders and letting them make tough decisions. This all kind of goes back to his whole outlook on the military. If you look at all of his time on Fox News , he's been a big champion of , uh , service members accused of war crimes , um , advocating for them directly to the president during his first terms , his first term. So it all kind of just falls into his overall worldview about what the military can do.

S1:

S2: The initial reports was that he ordered , uh , you know , kill everybody on the boat. Um , and they came out and he denied giving a killer more order. That would be a war crime that is illegal. You cannot say no. Take no prisoners. That's a that's a war crime. So he was very quick to to to reject Rejected that. He had said that they pushed back against that. Um , then he said that he wasn't in there in the room when it happened. Uh , he was very busy that day. And , um , he said that he made it very clear that the person who made the decision to strike a second time was the admiral in charge of the special operations.

S1: So the story has changed. Um , let's zoom out a bit.

S2: Right. Uh , deaths from fentanyl and whatnot. Drugs are bad for the country. They're harming Americans. Therefore , part of national defense is defending against drug trafficking. Um , this has always typically been a function of law enforcement. The Coast Guard , specifically um , and DEA and other federal agencies. But Trump has this term turned the military on into the the drug war. And , um , yeah , they're basically treating , uh , drug trafficking as if they were members of ISIS in Ramadi in 20 1415.

S1:

S2: Everything is couched in language of of intelligence and and national security and whatever. Um , they have said that they are they know who they're hitting and they know what is on the boats , but they're not releasing publicly at least , uh , how they know what they know. But , um , they , they assure us that they know what they're doing.

S1: They released it to Congress.

S2: Congress has been briefed , but it's not been , uh , there's been a lot of complaints from Congress that they are not getting enough information.

S1:

S2: If what the Trump administration says that these designated terrorist groups of drug cartels are valid military targets , then the strikes fall under the law of armed conflict. And , you know , the law of war that the military functions under in times of war. Um , if , as has also been argued , um , the president cannot just designate anybody he wants as a terrorist , he does not have an authorization for use of military force. The AuMf , which the kind of the that was the permission slip for all of these drone strikes in the Middle East over over 20 years was under that initial nine over 11 AuMf. There is no AuMf for the for Central America. So um , regardless. DOJ says that these are legal. So if the if they are not legal right , then the Navy is functioning under human rights law. And human rights law says that a military can only engage , um , a target if they are like receiving fire from them. So if this drug boat was attacking a Navy ship , the Navy ship has a right to engage them and fire on them. Um , absent that , a drone strike , for example , going away , the drone strike would be legal is if these are legal military , these are legal combatants. Um , again , something that is in dispute , even if they are legal combatants , once they are in the water , and once they are no longer able to fight , they are no longer valid legal targets. That's why you hear the language of Hegseth and everybody from the administration , you hear them say every time that they're still in the fight. These guys were still in the fight. They were trying to radio for backup. They were trying to get back in the. They're doing something that makes them a valid legal target because absent that , it is a clear violation of of the law of armed conflict.

S1: Well , I understand there's actually historic precedent for these human rights rules dating back to World War II.

S2: And there's a lot of tradition and a lot of history there. But there is a very specific case for 1944 where a German U-boat , um , torpedoed a Greek steamer called the Peleus. Um , it sank , the U-boat left , and then they returned , um , a little while later and there were survivors in the water , and the captain ordered his men to to destroy the remaining debris. They wanted to hide the fact that there was a U-boat in the area , they didn't want any of the debris from the sunk ship. That's that was the the captain's argument. Um , so they machine gun survivors and threw grenades into life rafts. Um , but a few people did survive and played dead and ended up after the war testifying the British court martialed , um , five of these submarine , uh , U-boat crew members , um , five were found guilty of war crimes. Three of them , including the U-boat captain , were executed by a firing squad. So there is a the illegality of killing survivors of shipwrecked sailors is something that , uh , it goes back a long way. There's long precedent for it. And you can see that at least in one case , in World War two , there was some very harsh consequences for these violations.

S1: This has long been established. Um , you also got the reaction from San Diego Democratic Representative Sarah Jacobs. She served on the House Armed Services Committee. That's what she serves on now.

S2: She does not think there legal. Um , there is a lot of classified the the DOJ memo that says these boat strikes are authorized. This is that , um , they don't have the AuMf , like I said , but they're functioning under this permission slip from the Justice Department that says they're legal. Now , what that their legal justification is , is not public. That is another thing that they're not saying , but they have presented that to Congress. And Sarah Jacobs says she said she does not think find it very convincing. In fact , she called their rationale bonkers.

S1: Well , I want to talk briefly about Democratic Senator Mark Kelly , who's under scrutiny by the Department of Defense. Last month , he and several other Democrats posted a video telling U.S. service members they could refuse illegal orders. President Trump responded on social media , saying that making the video could be punishable by death.

S2: He is a retired officer. He can be recalled to active duty and face court martial. Um , should the Pentagon choose to pursue that track ? Um , now , military justice is doesn't quite work that way. They have to go in front of a judge and have a sort of a grand jury , the military's version of a grand.

S1: But I mean , given the current situation here , uh , was that that video , um , warranted ? Was it legal ? Sure. Um.

S2: Well , they're not wrong , right ? Um , it is illegal for a service member to follow an illegal order. And in fact , under the UCMJ , everybody in the military , um , you know , that's the old , that old Nuremberg defense that the Nazis used , that they were just following orders. Uh , that is not a defense. You cannot say you were just following orders. And that is kind of what they were reminding service members of the problem here in the difficulty , and why it puts military service members in such a difficult position , is that the presumption is always that your orders are lawful. You , you , you govern yourself every day. Understanding that you're being whatever you're being told is is okay. Um , now to second guess that like like the UCMJ says , you cannot follow an illegal order. You have to refuse it. But it's also against the rules to refuse a legal order. So you have to be ready to to face consequences for refusing to follow an order. Um , if you believe that something is is illegal , um , that's a very difficult position to put anybody in because the military is hierarchical. You know , everybody answers to somebody. So , um , it puts service members on the ground , the people pushing the buttons and dropping those ordinance and whatever. But someone were really tough , tough position.

S1: Real quickly in the last few seconds. Um , what happens next in this boat investigation , boat strike investigation and even in this video.

S2: Well , right now they're trying to get this video released publicly. The video of the second strike. There's a big push to to get that out there from both Democrats and Republicans. And um , you know , we're just kind of waiting to see. Um , both the Senate and the House Armed Services Committee are investigating , and I expect there to be hearings. We just don't know when those hearings will be.

S1: All right. We'll continue to follow it. I've been speaking with Andrew Dyer. He covers military and veteran affairs for KPBS. Andrew , thanks for your insight and expertise.

S2: Thank you.

S1: That's our show for today. I'm your host , Jade Hindman.

S4: Thanks for tuning in to Midday Edition. Be sure to have a great day on purpose , everyone.