Second Strike Scrutiny Obscures Larger Question About Trump’s Boat Attacks

Congress is focusing on two deaths in one strike. But nine other people died in that same attack, and the United States has killed 87 in all. Were any of those killings legal?

As Congress parses the details of a follow-on strike that killed shipwrecked survivors of President Trump’s first boat attack on Sept. 2, a much larger issue risks getting lost: whether Mr. Trump and Defense Secretary Pete Hegseth have caused the military to commit crimes in a score of attacks.

Adm. Frank M. Bradley, who commanded the Sept. 2 operation, on Thursday showed lawmakers a video of the attack. The briefing was part of a congressional effort to understand his decision to order a second strike and determine whether the survivors of the first one remained “in the fight” or were technically shipwrecked, making it a war crime to kill them.

There have been shifting narratives emerging from the Pentagon, each resetting the analysis. But all of the scenarios consist of analogizing the actions of suspected drug runners to traditional combat activities. The comparisons are strained at best, legal experts say, because the laws of war were not written for and do not fit a drug smuggling situation.

“Debate over when a shipwrecked crew member loses protection from attack misses the point,” said Geoffrey S. Corn, who was formerly the Army’s senior adviser for law-of-war issues. “The real problem here is the dubious and legally overbroad assertion that the United States is justified in using wartime authority against a criminal problem.”

As a matter of plain reality, an unarmed speedboat, even if it is carrying cocaine, is not a warship. And none of the 11 people aboard — not merely the two initial survivors, but also the nine people the U.S. military killed in its first strike — were fighting anyone.

The Sept. 2 boat attack was the first in Mr. Trump’s policy of directing the military to summarily kill people who are suspected of smuggling drugs at sea as if they are enemy soldiers on a battlefield. The military has gone on to attack 21 more such boats, killing 87 people in all, according to the administration.

The conversation about whether that campaign amounts to murder has largely taken place among experts in laws governing the use of armed force.

The United States has long handled the problem of maritime drug smuggling by using the Coast Guard to intercept boats and to arrest people. That echoes how it works on land: Police officers who believe people are dealing drugs arrest them, and if they are convicted, they serve time in prison. They are not executed.

It would be a crime if officers instead simply gunned down suspected drug dealers in the street. Similarly, a military force is not allowed to target civilians, and being a suspected criminal does not make someone lose civilian status. In peacetime, targeting a civilian is murder. In an armed conflict, targeting a civilian is a war crime.

To justify the killings, Mr. Trump has declared that the United States is in a formal armed conflict against drug cartels, and that smuggling boat crews are “combatants” — all because he has “determined” so.

While Congress has not authorized an armed conflict, a memo by the president’s appointees at the Justice Department’s Office of Legal Counsel accepts his claim that there is one. Based on that premise, it says the drugs suspected of being aboard the boats are lawful military targets because cartels could use the profits to finance their purported war efforts, according to people who have seen the memo.

It is difficult to find people knowledgeable about the relevant body of law and not working for Mr. Trump who think the United States is really in an armed conflict. The essential problem is that trafficking illegal drugs, while a serious crime, is different from an armed attack.

And to the extent the administration has tried to offer substantive justifications for Mr. Trump’s purported determination, they appear to collapse under scrutiny.

The White House has highlighted the deaths of tens of thousands of American drug users a year from overdoses. But even if those deaths somehow amounted to an armed attack, the surge in overdoses over the past decade was mostly caused by fentanyl that comes from labs in Mexico, which use Chinese chemicals. The dramatic increase has not been fueled by cocaine that comes on boats from South America.

The Trump administration has also suggested that it can used armed force against suspected drug runners as a matter of the collective self-defense of other countries whose security forces sometimes clash with well-armed cartel goons, such as Colombia and Mexico. But the presidents of both of those countries have condemned the boat attacks.

Against that backdrop, a broad range of experts in the laws governing the use of lethal force have called the administration’s armed conflict theory nonsensical. Mr. Trump and Mr. Hegseth, they argue, have been giving illegal orders to the troops under their command to commit crimes.

With the notable exception of Senator Rand Paul, Republican of Kentucky, most lawmakers who have been arguing that the boat attacks are murders have been Democrats, who do not control Congress.

Until recently, however, most of Mr. Trump’s fellow Republicans have shied away from exercising oversight. A Nov. 28 Washington Post article that renewed attention to the Sept. 2 attack — focused on the follow-up strike — has made some Republicans in Congress willing to ask harder questions.

The focus on the second strike and the nuances of the law of armed conflict could end up being a favor to the Trump administration. The idea that something was bad about that particular strike implicitly suggests the first one on that boat — and all the others attacks on other boats — were fine. And its premise reinforces the idea that the situation should be thought about through the lens of an armed conflict.

The larger question now is whether the belated bipartisan interest in that particular strike will generate momentum for a broader look at the entire killing spree that Mr. Trump and Mr. Hegseth have led the U.S. military to perform, said Rebecca Ingber, a professor at the Cardozo School of Law and a former State Department expert in the law of war.

“There is a risk that the focus on the second strike and specifically the talk of ‘war crimes’ feeds into the administration’s false wartime framing and veils the fact that the entire boat-strikes campaign is murder, full stop,” she said.

She added: “The administration’s evolving justification for the second strike only lays bare the absurdity of their legal claims for the campaign as a whole — that transporting drugs is somehow the equivalent of wartime hostilities.”

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