Will Congress rein in Pete Hegseth and his boat-bombing campaign?

It was a scandal waiting to happen, and now it has. For over three months America’s armed forces have conducted a relentless air campaign against suspected drug-smuggling boats in the Caribbean and Pacific. To date, they have carried out 21 confirmed strikes, which have killed at least 83 people, many of them apparently civilian smugglers. There has been little to no legal oversight. A meek Republican majority in Congress appeared content to abdicate its war powers to an imperial presidency.

No more. Republican and Democratic lawmakers alike are demanding answers about reports of an alleged war crime committed at the outset of the boat-strike campaign by American special forces. The controversy has put America’s secretary of war, Pete Hegseth, under scrutiny once again and may yet change the conduct of the Trump administration’s norm-smashing anti-drug operation.

Immediately at issue is what happened to 11 suspected drug traffickers killed during the campaign’s first attack on September 2nd. On November 28th the Washington Post reported that an initial missile strike against a vessel carrying the traffickers left two survivors clinging to the shipwreck. Commanders watching the operation unfold over a live-video feed reportedly spotted the two men, but Admiral Frank Bradley, the special-operations commander in charge, ordered a second strike, blowing them up.

If that description is accurate, it is likely that American forces committed a war crime. It is illegal to strike people who are hors de combat, that is, out of action and posing no threat. The Pentagon’s own manual on the law of armed conflict points out that it is “dishonourable and inhumane” to attack people incapacitated by shipwreck. Killing the survivors of an attack at sea is “literally the textbook definition of an unlawful order”, says Steven Lepper, who served as the air force’s second-highest-ranking lawyer.

Who is responsible? The White House has acknowledged the second strike but is hedging about how it happened. Mr Hegseth has made clear that his written order authorising the entire boat-strike campaign, known as an “execute order” in military-speak, demanded lethal action. Yet the secretary has denied authorising “no quarter” for survivors. Unless the text becomes public, it will remain hard to judge what requirements the secretary of war laid down for Admiral Bradley, who has been summoned to Congress to answer questions in private on December 4th.

In recent days the White House has shifted the onus onto the admiral, stating that he was responsible for ordering the second strike. “I stand by him and the combat decisions he has made,” Mr Hegseth posted to social media on December 1st. In the absence of clearer facts, what happens next may hinge on two questions. The first is whether Mr Hegseth’s execute order was illegal from the outset. The other is how robust the decision-making process and legal safeguards were in the operations room when Admiral Bradley reportedly approved the follow-on strike.

As is common, Mr Hegseth’s order appears to have delegated authority to carry out the strike through the chain of command to Admiral Bradley, then in charge of Joint Special Operations Command (JSOC), home of elite, secretive forces such as the army’s Delta Force and the navy’s SEALs. The admiral is well-respected in special-operations circles and had the right background to oversee the mission. “He is extremely experienced in this type of individual and lethal targeting,” says a former senior judge advocate-general (JAG), the military’s uniformed lawyers. “[He’s] spent most of his professional career doing this in Iraq or Afghanistan.”

Far-flung air and missile strikes are typically carried out from a joint-operations centre, a hub for co-ordinating missions with units in the field, linked by a live-video feed. Mr Hegseth watched the operation live on video, although he claims he did not “stick around” to witness the second strike. In any case, it would be highly unusual for a secretary of defence (now rebranded secretary of war) to intervene once the operation was under way, say officials familiar with the process. Admiral Bradley would also have been flanked by a gaggle of aides specialising in operations, intelligence, munitions and, crucially, a JAG, to advise on whether the strikes were legal.

Typically, commanders will survey the room to get sign-off from a JAG and other officers before launching a strike. Yet JAGs lack formal authority in the chain of command. They do not have a veto, points out Daniel Maurer, a former army lawyer now at Ohio Northern University.

According to the Post, Admiral Bradley justified the follow-on strike as necessary to remove a potential navigation hazard for other vessels. The Pentagon has fired multiple times on different drug boats to remove them as potential hazards. Yet legal experts argue that is a legally dubious rationalisation in a case where survivors are present. “The question is which would take priority—removal of the hazard or care for the wounded,” says the former senior JAG. “Care for the wounded is a function of international treaty law.”

A bigger question is whether America’s entire anti-drug campaign is legally defensible. Although the Trump administration argues it is engaged in an “armed conflict” with drug gangs, few legal scholars believe that blowing up drug boats fits that definition. In many ways the campaign is indicative of Mr Hegseth’s broader contempt for the laws of war. Since taking office he has gutted the Pentagon’s Civilian Harm Mitigation and Response Office and fired a multitude of senior JAGs.

Mr Hegseth often rails against what he claims are restrictive rules of engagement, which “tie the hands” of soldiers in the field. Morale within the JAG Corps is tanking. Many of the new lawyers installed in senior posts over recent months “don’t care what the right answer is”, bemoans the former senior JAG. “They spend all their time trying to figure out what the administration wants and then reverse engineer how to get to it.”

The controversy over the September 2nd strike may provide a service by focusing scrutiny on why the Trump administration is using disproportionate force against criminals in speedboats. Narco-gangs are not al-Qaeda or Islamic State. “Whether these boats justify this kind of interdiction is really the question,” says a former JAG who advised JSOC operations. “That’s the debate we should be having.”■