Insane Clown Pentagon

Its critics may be hypocrites, but the Trump administration has created a massive mess for itself with its Venezuelan boat-bombings

This time, it’s not fake news. Donald Trump, War Secretary Pete Hegseth, Admiral Frank Mitchell Bradley, and soldiers involved with the September 2nd boat-bombing operation that allegedly involved firing a second time on survivors really do face serious legal exposure, with Trump and Hegseth even handing enemies potential grounds for impeachment through their own statements.

The administration’s behavior since Monday has been a master class in political dysfunction. Trump, Karoline Leavitt, and especially Hegseth created major political problems both by clumsily throwing troops under the bus at the first sign of scandal, and also by inadvertently giving evidence against themselves at the exact moment they’re facing a destabilizing challenge from Senators like Mark Kelly. How bad is it? Law professors and military analysts struggled to find words.

“Fucking shameful, and I voted for these guys,” says a former Army officer who served in Iraq and Afghanistan.

“It’s the kind of thing that makes military lawyers’ heads explode,” said Eugene Fiddell, who teaches military justice at Yale.

“Totally crazy,” added Michel Paradis, an author and human rights lawyer known for representing Guantanamo Bay detainees. “Even if I could come up with some sort of legal theory for why we can start bombing drug boats indiscriminately, you can’t shoot survivors.”

“It’s pretty remarkable that the United States has decided that at the — I’m not going to use the word whim — that at the discretion of the president, he can designate any criminal organization as a terrorist organization and start killing people as a measure of first resort,” said Geoffrey Corn, professor of law and a retired Army Lieutenant Colonel.

Former CIA analyst Larry Johnson described talking to service members who are struggling with these orders, adding that these missions also cross a line for him in a big way. “We’ve sort of enshrined under the banner of fighting terrorism this concept of extrajudicial killings,” he said. “Well, we’re now the goddamn Salvador death squads. It’s outrageous.”

Recapping:

The Washington Post Friday ran a piece titled “Hegseth order on first Caribbean boat strike, officials say: Kill them all,” that claimed a senior officer (later identified as Admiral Frank Bradley) fired a missile at a suspected drug boat carrying 11 people, then fired a second shot at two men clinging to a “stricken, burning ship.”

Leaving aside the already-fraught issue of whether or not the operations against drug traffickers are legal, it’s important to note that firing upon “the wounded, sick, and shipwrecked” is one of the Pentagon’s own paradigmatic examples of war crimes. Yes, the Post story was built on two layers of anonymous sourcing and Hegseth’s alleged “kill everybody” quote is far from proven, but the “if true” reporting may not matter, because statements about the mission by Trump, his spokespeople, and especially Hegseth all speak to a fundamental misunderstanding of criminal and military law that is problematic on its own.

The second Trump presidency has been marked by a dependably self-harming political cycle. First comes broad goal-setting (let’s crush DEI gravy trains, deport illegals, stop fentanyl imports), followed by bold action (slashing university funds, ICE raids, boat bombings), then predictable outrage of the “Fascism Scholars Flee for Canada” type, in turn inspiring ad-libbed tweets/truths/videos from officials that generate new problems (Trump’s “Agitators will be imprisoned!” post, FCC chair Brendan Carr’s “easy way or hard way” rant about Jimmy Kimmel, etc). Throughout, despite needing maximum popular support to advance their controversial policies, Trump and his top lieutenants trash whole demographics using language that invites obvious historical comparisons, while making one wonder if they know how to use the Google machine. Did Kristi Noem really not know Hitler also liked to call people “leeches”? More to the point, did Hegseth really not read the My Lai case before he replied to the Post’s “Kill them all” story?

In addressing the “fake news” report, Hegseth didn’t challenge the tale of shipwrecked survivors, but followed the pattern of creating new problems by tweet:

These highly effective strikes are specifically intended to be “lethal, kinetic strikes.” The declared intent is to stop lethal drugs, destroy narco-boats, and kill the narco-terrorists who are poisoning the American people… The Biden administration preferred the kid gloves approach… Biden coddled terrorists, we kill them.

“It’s almost word-for-word the order [Captain Ernest] Medina gave at My Lai,” says one attorney with experience in military justice cases. Ernest Medina was the infamous commander who reportedly told subordinates before a search-and-destroy mission in an area north of Quang Ngai, Vietnam, nicknamed “Pinkville” that “everything was to be killed,” including people and animals. “That sounds an awful lot like killing everybody on that boat,” the lawyer added.

“Secretary Hegseth has made many statements that he may come to regret politically, if not legally,” said Fiddell.

There’s already evidence of that regret. On the topic of the boat bombings, the Trump Administration made a sharp course change in the last few days.

As late as Monday, the message from the White House and the Pentagon was full-throated support of the mission and Bradley. The Admiral, said Trump spokesperson Karoline Leavitt, “worked well within his authority and the law, directing the engagement to ensure the boat was destroyed.” Meanwhile, Hegseth kept upping the ante on Twitter. Two days after the Post story he tweeted a drawing that put a rocket launcher on the shoulder of “beloved Canadian icon” and children’s book character Franklin the Turtle, showing it blowing up drug boats:

This of course drew condemnation from the Kids Can Press. Trolling Canadian honor is almost always effective, but dragging child readers into the argument that blowing up civilians is a big laugh made this effort a rare miss. By the next day Hegseth was tweeting again: “Admiral Mitch Bradley is an American hero, a true professional, and has my 100% support… America is fortunate to have such men protecting us. When this @DeptofWar says we have the back of our warriors — we mean it”:

After that, he said “we’ve only just begun… putting Narco-Terrorists at the BOTTOM OF THE OCEAN,” then took aim at critics who don’t understand the “fog of war” in which “American heroes” like Bradley operate.

The resolute talk began squeaking backward Monday. On that day, five “U.S. officials” went to the New York Times to say that yes, it’s true Hegseth “ordered a strike that would kill the people on the boat,” but that his “directive did not specifically address what should happen if a first missile turned out not to fully accomplish all of those things.” By the next morning, Tuesday, the Times ran an ominously detailed profile of the “stoic and cerebral SEAL known as Mitch,” describing Admiral Bradley as the scandal’s central character, who was now in “legal peril.” Never a good sign to see yourself introduced as the lead role of a coming scandal.

That same day, Hegseth went from “We have the back of our warriors” to saying he “didn’t stick around” for a second strike. Trump by then had already said he “wouldn’t have wanted” such a strike, leaving the Times to conclude:

The public comments of the president, Mr. Hegseth and Ms. Leavitt all leave Admiral Bradley exposed.

There’s an obvious caveat. Trump spent most of his first term fighting off media “bombshells” that often later fizzled, and his most recent problems are also tied to a Washington Post story built atop anonymous sources and authored by a Russiagate all-star. Cornell Professor and former Army judge advocate Brian Cox pointed out that a lot rests on whether or not Ellen Nakashima’s co-bylined Post story can be proven true in all its parts. For instance, if the boat was not destroyed but merely disabled, he believes that would change the whole picture.

“If it’s true that we have two survivors clinging to burning wreckage in the Caribbean, then attacking them would be a war crime,” Cox said. “But if their boat rather than being destroyed is disabled, and still qualifies as the military objective, then the attack is permissible.”

That assumes however that the ostensible justification for the operation holds up, which few lawyers I spoke with believed was possible (Fiddell wouldn’t even concede that this was a “real armed conflict,” making the issue not war crimes but “just crime”). What is that justification? The White House originally said Trump “determined” the United States was in an “armed conflict” with drug cartels and filed notice to Congressional committees, as if following the process prescribed under a section of the War Powers Resolution. A classified Office of Legal Counsel (OLC) memo reportedly fleshed out the idea, saying the Administration was acting in collective self-defense of countries like Mexico, under attack from cartels that use cocaine sales to finance the use of force.

The OLC memo as reported diverges from Trump’s public statements justifying the strikes to stop “massive amounts of drugs coming into our country to kill a lot of people.” Administration sources later began claiming authority under post-9/11 law permitting force against terrorist organizations, a designation the Cartel de los Soles earned two weeks ago. Under this theory, the government of Venezuelan leader Nicolás Maduro can be attacked using the same blanket force authorizations prior presidents claimed to justify actions against a long list of other designated “terrorist” organizations. But even some Republicans and erstwhile supporters of Trump are having trouble squaring the concept of invoking terror law to wipe out drug dealers.

Paradis points out that even if Hegseth didn’t give the “kill everybody” order and had nothing to do with any second shot, both Trump and more particularly Hegseth still have exposure based on the concept of Command Responsibility. This idea dates back to a 1946 Supreme Court case involving the Japanese Commander of the Philippines, Tomoyuki Yakashita, who was held responsible for “permitting [soldiers] to commit” war crimes, even if he didn’t have direct knowledge. The resulting doctrine obligates commanders to “prevent and investigate” once they become aware of illegal behavior by soldiers.

There’s already a long list of public statements and actions by Trump and Hegseth that raise the question of whether they even know what “Command Responsibility” is, but the most glaring might be the Administration’s weirdly relentless trolling on the subject. Even if one stipulates that the people in these boats are drug dealers, asking professional soldiers to kill (sometimes unarmed) civilians is a pretty major ask.

“With these boats, if the Coast Guard were approaching them and they started shooting at us, then we could blow ‘em out of the water. They bought the ticket,” said Johnson. “But that’s not what’s happening. They’re saying, ‘Oh, we think they’re carrying lethal drugs. But you don’t know. In my 40-year experience, sometimes the intelligence is wrong.”

Professor Corn, who spent 21 years in uniform, similarly became emotional over the topic of the still-serving military. “They’ve got legal opinions from within the government, the Department of Justice, probably the DOD general counsel that validate this claim of armed conflict and that we’re acting in self-defense against an ongoing armed attack,” he said. “I think their duty is clear, but I’d suspect that many of them are deeply uncomfortable with what they’re being asked to do and that’s tragic.”

If the administration can’t summon sympathy for foreign “garbage,” “animals,” and “leeches,” they should at least be able to empathize with the soldiers asked to execute these operations and amp down the yuksterism. Sadly, they don’t seem capable. Trump and J.D. Vance both made the same “I wouldn’t go fishing right now” joke. Vance replied to a tweet describing the operations as war crimes by snapping, “I don’t give a shit what you call it” (to be fair, in response to a Krassenstein). Hegseth, between his “Franklin the Turtle” gag and weird workout selfies, has been a one-man comedy show. He and Trump shared a laugh about how hard it is to find targets now before promising again to commanders in “difficult situations,” making “judgment calls” that “We have your backs”:

This is more than an issue of taste. Joking about war crimes in a way is actually evidence of a failure of command responsibility, in that it demonstrates a lack of interest in punishing or monitoring such crimes. Fiddell doesn’t buy the argument that these Venezuela missions are part of a war, but “if you do adopt that position, then the president could hardly complain if the law of armed conflict concerning command responsibility winds up, let’s say, biting him in the foot.”

Then there’s the issue of letting subordinates twist for your decisions. The Times quoted Carrie Lee, head of the department of national security at the Army War College, who said: “For the top two civilians in the Pentagon and the White House to effectively wash their hands of it and claim no responsibility, while simultaneously saying that they stand by the decision, goes against any kind of ideas of responsible command.”

This story would look totally different if Hegseth did in fact have the backs of the personnel asked to pull off these crazy-ass missions. An argument Racket heard from more than one person, including from former human rights investigators, is that the world has changed and authoritarian behaviors need to be viewed differently. “Maybe it’s just a different America,” is how former Army infantryman, writer, and professor Matt Farwell put it.

If that’s what Trump believes, his people have to be willing to risk sharing the brig with those carrying out the orders. But it looks like Hegseth and the White House are already pulling the Shaggy/It Wasn’t Me move with regard to Bradley, whose crime —beyond following the orders in the first place — seems mainly to be failing to “coddle” a couple of survivors.