Report: Hegseth Gave Order to Kill Boat Operators Because They Were on a Target List

Is the Trump administration claiming the power to do what previous administrations have done: compile lists of 'enemy combatants' and kill them?

D efense Secretary Pete Hegseth ordered the Navy commander of the September 2 missile strikes against a suspected drug boat to kill everyone on board because all eleven of them were on a list of approved military targets, NBC News has reported.

The report is based on three anonymous sources — “two U.S. officials” and “one person familiar with the congressional briefings” that were provided last week by the commander, Admiral Frank M. Bradley. If the report is accurate, it lends more credence to the original (and much criticized) Washington Post report, which asserted — also according to anonymous sources — that the gist of Hegseth’s order was “to kill everybody” on board.

Assuming the accuracy of the NBC report about a target list, I have a theory about what is going on here.

Hegseth and other administration officials have analogized the killings of boat operators off the coasts of South and Central America, who are suspected of transporting illegal narcotics (mainly cocaine), to the killing of jihadists in the decades-long, post-9/11 campaign against al-Qaeda.

Throughout the campaign against al-Qaeda, as was notably reported during the Obama administration, government intelligence agencies developed target lists — jihadists who were believed to be affiliated with the terrorist organization. As I discussed last week, for example, President Obama ordered hundreds of drone strikes (the best estimate seems to be 563). How many people were killed is disputed, especially when collateral damage is factored in. The Obama administration lowballed the number of civilian casualties to no more than 116; independent investigations suggest that the civilian casualties exceeded 800, with more than 2,000 civilians and jihadists killed overall. (A deeply anti-Obama Harvard Political Review analysis puts the total at approximately 3,800.)

But here is the difference: The al-Qaeda-related drone strikes by Obama, as well as by Presidents George W. Bush, Trump, and Biden, were all pursuant to the post-9/11 congressional authorization of the use of military force (AUMF), which went into effect with overwhelming bipartisan approval a week after al-Qaeda killed nearly 3,000 Americans in our homeland, destroying the World Trade Center and striking the Pentagon. That is why there was not more scandal attached to the use of lethal force away from the battlefield — or, as I outlined in the piece on Obama’s drone strikes, to the killing of hundreds of civilians and to the 2011 drone strike that killed Anwar al-Awlaki (a dual American and Yemeni citizen) along with several of his companions in Yemen.

When Congress declares war or otherwise authorizes the use of military force, the government may lawfully kill enemy combatants wherever they are encountered (although rules against the killing of the wounded, captured, and those otherwise rendered hors de combat apply). Moreover, while civilians may not be intentionally targeted, the law of war triggered by a congressional AUMF authorizes our military to use lethal force against enemy combatants and assets, even if such strikes foreseeably result in civilian casualties.

If the NBC report is accurate, then Trump and Hegseth are obviously claiming the power to do what these other administrations did: compile lists of purported “enemy combatants” and kill them, presumably wherever those “enemy combatants” are confronted. The administration’s theory is that these people are terrorists, so they should be treated just as al-Qaeda terrorists. The administration implies, therefore, that there can be no objection to the September 2 “double tap” strike against the two survivors of the eleven-person crew. After all, they were on the list of “narco-terrorist” “enemy combatants,” against whom the president and his defense secretary approved the use of lethal force, and even though the two survivors were shipwrecked, they were not wounded and could still have “completed their mission” of transporting their “weapons” (i.e., the packages of cocaine they were allegedly attempting to deliver to another ship).

This is a specious theory. As I explained at length on Saturday, the fact that the executive branch designates a person or organization as a foreign terrorist does not confer any authority on the president to use lethal force. The designation process is created and regulated by statute; it does not stem from the president’s power as commander in chief under Article II of the Constitution. In that process, Congress has authorized the executive branch to seize terrorist assets and to prosecute people or entities who provide material support to terrorists. The designation process is not an AUMF.

Again, al-Qaeda jihadists were legitimate military targets because of the AUMF. The fact that al-Qaeda was a designated foreign terrorist organization, and its operatives were terrorists, did not justify the use of force. In the case of the Caribbean, Congress has not enacted an AUMF, and Trump’s dubious designation of drug cartels as terrorist organizations does not permit the use of force (no matter how many times administration officials use the epithet “narco-terrorists,” which has no standing in federal narcotics or terrorism law).

The Washington Post’s controversial report on the day after Thanksgiving claimed that the gist of Hegseth’s order was to “kill them all” (meaning all eleven people on the boat). The report was criticized for suggesting that Hegseth himself had made a statement along those lines. The Post report further inferred that, by conveying a crude instruction along such lines, Hegseth could effectively have been saying that “no quarter” should be given. (A “no quarter” order that there are to be no survivors, even if surrenders are offered, or if targets are wounded or otherwise hors de combat, is a violation U.S. and international law.) If the NBC report is correct, then the main thing the Washington Post missed was the information about a target list. If, in substance, Hegseth said that the eleven people in the boat were on the list, and therefore that they should be targeted with lethal force, that is essentially what the Post said. As NBC points out, an order to kill everyone on a list of enemy combatants is not the same as a no-quarter order, and the Post didn’t say that Hegseth gave a no-quarter order (although that was arguably implied).

I suspect that is why, in his initial, haughty responses, Hegseth seemed incredulous that the Post didn’t grasp that the whole point of the attack was to be “lethal and kinetic” — i.e., to kill the people on the boat. The defense secretary even made the point in a social media post that “we have only just begun to kill narco-terrorists” and followed that up with an even more unseemly Franklin cartoon image of an American helicopter firing a missile at “Narco Terrorists.”

As I pointed out last weekend, if it is alleged that one has illegally killed the boat operators, particularly the two in the double-tap strike, then it’s not a defense to reply, in effect, “But it was our intention to kill them.” Yet, if in Hegseth’s mind, (1) the boat operators are just like al-Qaeda terrorists, and (2) he has a list of “enemy combatants” that was just like Obama’s list of terrorist enemy combatants, then one can understand why he would believe that all he needed to say was, in effect, “We’re killing terrorists, so what’s the problem?”

The problem, alas, is that Hegseth is fundamentally wrong: Narcotics traffickers are not analogous to jihadist terrorists, narcotics-trafficking is not terrorist activity under federal law (as I’ve explained here), and the government is permitted to drone-strike the al-Qaeda-connected jihadists because Congress authorized it, not because the executive branch designated them as foreign terrorists.

These rudimentary distinctions inexorably caused the press and the public to question the double-tap strike in a way they would not have questioned a follow-on strike against actual terrorists (especially if, say, such terrorists had been transporting explosives rather than cocaine). In response to the intense criticism (as I related here), President Trump distanced himself from the double-tap strike, and an effort was made to distance Hegseth from it. The administration also pivoted to a defense that focused on the boat and its cargo rather than the operators against whom Hegseth had said it had been his intent to apply “lethal, kinetic strikes.”

This seemed to work for a few days because, habitually zeroing in on the wrong thing, the anti-Trump press had made the issue about whether the double-tap strike was a war crime, whereas the real issue is whether the campaign of lethal strikes against suspected drug boats without congressional authorization is illegal. Once it was clear that Hegseth hadn’t issued a second order specifically telling Admiral Bradley to kill the shipwrecked survivors, many lost interest in the underlying, flawed analogy between drug traffickers and jihadists and between cocaine and bombs.

Nevertheless, the NBC report regarding Bradley’s briefings to Congress shifts the spotlight back onto the boat operators. Indeed, according to NBC’s sources, when asked if Hegseth gave an order along the lines of “Kill them all,”

Bradley told lawmakers that the orders he received from Hegseth were to kill the individuals on the approved target list, which included everyone on the boat, then destroy the drugs and sink the boat.

Translation: the priority was killing the people who were on the boat; the drugs and the boat were secondary concerns. Now, while I am not a military veteran, it doesn’t make sense to me to think about the missile strikes in such sequential terms. The U.S. strikes simultaneously kill people, destroy cargo, and damage vessels to the point that at least some of them are instantly sunk — you don’t kill the people, then destroy the drugs, then sink the boat. Still, if NBC’s version of Bradley’s account is correct, what matters is that the top military priority was the people. That’s why there’s a list of them.

As Rich Lowry observed in his column (and I contended in the aforementioned discussion of Obama’s drone strikes), such a priority makes perfect sense when one is dealing with actual terrorists or the military forces of a foreign enemy. Of course the military wants to deny jihadists and enemy soldiers their weapons and conveyances. The main challenge of terrorism, however, is the terrorists — if they survive, they will regroup and try to murder Americans. That’s why Congress authorized military force: to kill them before they could kill us.

But it is impossible to apply such logic to drug traffickers, which is why federal law’s extensive definitions of terrorist activity do not include narcotics-dealing. With drug dealers, the priority is always to prevent illegal narcotics from entering the U.S. market. Capturing and prosecuting the drug dealers is important but secondary. (You may notice that the Justice Department and law enforcement agencies host big press conferences every time they seize a significant narcotics shipment or stash, even on occasions when they arrest few if any of the drug traffickers.)

I believe it’s fair to say that Secretary Hegseth gave an order the gist of which was to kill everyone on the boat because he was working off a list of cartel associates to be killed and equating that list with prior administrations’ lists of al-Qaeda-tied jihadists to be targeted in drone strikes. That does not mean that he gave a no-quarter order — he didn’t. But it does mean that, when Admiral Bradley ordered a double-tap strike to kill the two survivors of the first strike, he was complying with what he reasonably understood Hegseth to have ordered.

Bradley was also adhering to the Trump administration’s conceit that the boat operators are terrorists and that the cocaine packages are akin to bombs. By his lights, then, even though this seems perverse, it was okay to kill the boat operators as long as they weren’t too badly wounded. That is, if they were hors de combat (such that it would have violated the laws of war to kill them), there would have been no double tap. But, since they were still alive and functioning, they remained viable targets for “lethal, kinetic strikes” because they could theoretically have continued their “mission” of transporting the “weapons” (cocaine packages) that were strapped inside the remnant of the ship’s hull to which they clung.

Again, this is ludicrous, but this is their theory — and Bradley is not the one who came up with it.