Can The Secretary of War do Whatever He Pleases?
No.
No matter how serious the issue, the crime, the anger, the attack, etc.; you do not get to murder people. It is that simple. Apparently, others have a different understanding of what you can do. The results of an investigation will be heavily skewed.
Hopefully a couple of people I know who read here, will chime in as to why the administration is wrong.
“The Moment to Pick a Side Has Come”
Joyce Vance
“You must refuse illegal orders.”
That’s what was said in the video made by six Democratic members of Congress. Trump accused them of seditious behavior. The FBI launched an investigation.
Then, on Black Friday, the Washington Post ran with an exclusive story about the September 2, 2025, attack on a boat allegedly carrying drugs in the Caribbean, the first of a series of attacks that have involved strikes on at least 23 boats to date. The Post reported that in advance of the strike,
“Defense Secretary Pete Hegseth gave a spoken directive, according to two people with direct knowledge of the operation. ‘The order was to kill everybody.’”
That’s what the special operations commander overseeing the attack did. After the initial hit, live drone feed showed two survivors clinging to the wreckage. The commander “ordered a second strike to comply with Hegseth’s instructions … The two men were blown apart in the water.” The video Trump released later that day did not include the second strike.
The Post quoted Todd Huntley, a former military lawyer who had advised special operations on the illegality of the order: “Even if the U.S. were at war with the traffickers, an order to kill all the boat’s occupants if they were no longer able to fight ‘would in essence be an order to show no quarter, which would be a war crime.’”
My colleague Ryan Goodman, Professor of Law at NYU School of Law and the founding co-editor-in-chief of Just Security, an online forum focused on U.S. national security law and policy, will join us Sunday morning at 10:00 a.m. EST for an in-depth Substack live discussion of the issues raised here. Mark your calendars now and make sure you have the Substack App downloaded so you can join us for cutting edge legal analysis on this most important of issues. Ryan has been tracking these strikes and their legal implications since they first began. After the story broke in the Washington Post, he tweeted, “Textbook war crime/extrajudicial killing.”
Earlier this month, The Guardian reported that Britain had stopped sharing intelligence on Caribbean drug running with the United States “amid concerns information supplied may be used to engage in lethal military strikes by American forces.” They specified that the cooperation was “paused shortly after the US began a campaign of lethal strikes in September,” but there was no explicit mention of the order Hegseth issued as the cause.
Friday evening at 5:42 p.m., Hegseth tweeted:
“As usual, the fake news is delivering more fabricated, inflammatory, and derogatory reporting to discredit our incredible warriors fighting to protect the homeland.
As we’ve said from the beginning, and in every statement, 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. Every trafficker we kill is affiliated with a Designated Terrorist Organization.
The Biden administration preferred the kid gloves approach, allowing millions of people — including dangerous cartels and unvetted Afghans — to flood our communities with drugs and violence. The Trump administration has sealed the border and gone on offense against narco-terrorists. Biden coddled terrorists, we kill them.
Our current operations in the Caribbean are lawful under both U.S. and international law, with all actions in compliance with the law of armed conflict—and approved by the best military and civilian lawyers, up and down the chain of command.
Our warriors in SOUTHCOM put their lives on the line every day to protect the Homeland from narco-terrorists — and I will ALWAYS have their back.”
Hegseth did not deny that two defenseless people were killed. We still do not know what, if anything, they were guilty of. Certainly, as they clung to the wreckage of a boat in the ocean, they did not pose an immediate threat to the United States. The lawful thing to do would have been to rescue and prosecute the men. Instead, per Hegseth’s instruction, they were executed.
Hegseth doubled down a few moments later, tweeting:
“We have only just begun to kill narco-terrorists.”
By Saturday night, there was a growing call for, if not accountability, investigation, including by both House and Senate Republicans. The Washington Post wrote, “In a rare split with the Trump administration, GOP-led panels in the House and Senate say they want a full accounting in the September military attack.” Saturday night, Democratic Senator Ed Markey tweeted, “Pete Hegseth is a war criminal and should be fired immediately.”
There is a price to be paid for confirming a man as the Secretary of Defense who fails to understand the role he is being called upon to serve in, instead, relishing the title “Secretary of War.” Hegseth received a Bachelor of Arts in politics from Princeton in 2003 and a Master of Public Policy from Harvard’s Kennedy School of Government in 2013. He joined the Army National Guard as an infantry officer afterward. Nowhere along the road does he seem to have learned the fundamental lessons any Secretary of Defense should have known: The lesson of the Peleus trial.
In 1944, the captain of the U-boat U-852 sank the Greek steamer Peleus in the South Atlantic. There were 12 survivors, including an officer, who was given assurances they would be rescued the following day by Allied forces. But the U-852’s Kapitänleutnant Heinz Eck suddenly ordered his crew to fire on the 12 survivors and attack them with grenades when machine gun fire didn’t suffice to sink their life rafts.
Eck and four others were subsequently charged with war crimes. The charges were in connection with “the act of firing at the survivors and not the original sinking of the ship.” Eck argued “operational necessity,” claiming the survivors could have rallied and attacked the submarine. But all of the men were convicted.
It’s clear that even in wartime, an attack like the one on September 2 is a crime. If we are not at war—an issue the experts are now hotly debating and that we will track with Ryan Goodman in the morning—it’s quite simply murder.
Trump has claimed the attacks in international waters are about fighting a war against drug trafficking. But he doesn’t seem serious. He announced on social media that he was granting a full pardon to Juan Orlando Hernández, the former Honduran president convicted in the United States on drug trafficking charges that involved his protection of cartel activity and personnel. Trump said he would issue the pardon because “many friends” had asked him to. He said, referring to Hernández,
“They gave him 45 years because he was the president of the country. You could do this to any president on any country.”
Lawyers say res ipsa loquitur—the thing speaks for itself.
Saturday, Trump posted a photo of himself playing golf on social media in a red hat that read, “America is back.”
On an official White House website page labeled “media offender of the week,” Trump posted the video made by the six Democrats, repeatedly overlaying it with red stamps claiming he had never given an illegal order and labeling the Democrats “seditious.” The story in The Washington Post did not mention involvement by Trump in Hegseth’s order. But whether anyone above Hegseth was involved in the decision-making process will surely be on the table for congressional investigation.
Now, everyone involved will have to pick a side, and there is only one side to be on in an issue like this.
If you value clear explanations of complicated legal events, and the work I do each day to track the law, the history, and the stakes, I hope you’ll consider becoming a paid subscriber. Your support makes it possible for me to dig into critical questions—like tonight’s piece—and keep this analysis available to everyone. Thank you for helping to sustain Civil Discourse.
We’re in this together,
What’s stopping them? Until Congress–enslaved to Trump–asserts its Constitutional war powers, Trump can and will do whatever he wants. Since the SCOTUS has already ruled that anything and everything the POTUS does is ipso facto legal. Impeachment in the House and conviction in the Senate is the only way to stop this, and the votes simply aren’t there in the Trump GOP. Stalin would be proud.
Is that Wayne Gretzky?
“The first thing we do is fire (kill) all the lawyers.” Hegseth’s done that while hypocritically claiming that the actions in question have been approved by military and civilian lawyers “up and down the line”.
Pretty hard to say what military personnel should do in this situation when the initial order, itself, is open to debate as to its lawfulness and the administration’s legal memo in support not available The actual firing on the surviving boat occupants is another matter. That’s just murder.
Jack:
The question? “What is a lawful order or what is unlawful?
Unless you have a ton of cash stacked away or influence, you will more likely than not, follow an order given to you. One is on terrible ground to not follow an order by an NCO or Officer as so much can be construed either way in the military.
You are more likely to lose.
Clearly it’s unreasonable to expect non lawyers to do sophisticated legal analysis but when people are in a command position and giving kill orders, more than just their knee jerk opinions should be required. That’s what JAG’s were supposed to help with. Hegspeth didn’t want to be involved with them because they might tell him not to do what he wanted. The duties of troops receiving orders are, or should be, less severe. In My Lai, were Calley’s troops prosecuted or disciplined? I suppose they could have been. The situation was obvious enough to that helicopter pilot who intervened.
One question I’d have for Goodman if I had the opportunity is to ask about DoD reporting obligations. He is not alone in calling this a “textbook” war crime. So far, I have not read of any internal reporting to ombudsman-type officials in DoD about this. The attacks were September 2. It seems like a monumental failure of training if actions that could be called textbook war crimes if they were not reported somewhere in DoD very shortly thereafter. Although I never read the original WaPo story, it is supposedly based on 2 individuals with direct knowledge of the circumstances. Is there an office for reporting events like this and was it used? Was it reported but without any perceived investigation so that individuals went to the WaPo? The counternarrative is too easy to imagine: a couple of Democrats in DoD or Navy see this, get in touch with Congressional Democrats (members or staff). They crank up a video on the topic, then when there is a lot of attention on the topic of orders, drop the story on the WaPo. Clearly, that’s speculation, but understanding if there was any DoD obligation to report this and what then happened (or didn’t) would be an interesting thing to look into. It wouldn’t change whatever actually went down, people would be more fully informed.