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 December 1, 2025
The reaction to reports that the US military killed
survivors of a shipwreck feels like a tipping point in the effort to end
Trump’s lawless reign. For everyone already reaching for their keyboard to
send an email or post a Comment saying that dozens of other Trump depravities
have been wrongly declared to be “tipping points,” I say, “You’re
right.” We have been here before and been wrong in our
assessment. If the January 6 insurrection, 34 felony convictions, 4 criminal
indictments on 91 counts, and two impeachments aren’t “tipping points,” it is
hard to see how anything can be. But Trump is in mental decline, hemorrhaging support in
the polls, facing meaningful pushback from some of his most steadfast
supporters, and is so toxic that he rarely makes personal campaign
appearances for struggling MAGA candidates. If killing defenseless civilians is a tipping point, it
will be because two things are true: Killing survivors of a shipwreck is
universally regarded as criminal behavior, and Trump is perceived to be
vulnerable by Republicans looking for an opening to distance themselves from
Trump. Here is a brief summary of how we got here: 1.
The Washington Post reported last week
that two people with direct knowledge claim that Secretary of Defense Pete
Hegseth gave a verbal order to “kill everyone” on a boat allegedly smuggling
drugs. A member of the US Special Operations Command (SOCOM) implemented that
order by firing a second missile strike against two survivors clinging to the
wreckage of the drug boat that was destroyed by the first missile strike. See
WaPo, Hegseth order on first Caribbean boat strike, officials say:
Kill them all. 2.
According to the Post, “The two men were blown
apart in the water.” 3.
Members of both parties said that the conduct—if
true—would constitute a war crime and/or murder. See Politico, Lawmakers warn Hegseth may have committed war crimes following
second-strike report. 4.
Trump offered a weak defense of Hegseth, saying that he
(Trump) “wouldn’t have wanted a second strike,” but Hegseth denies
giving such an order, which is the end of the story so far as Trump is
concerned. See WaPo, Trump says Hegseth told him he didn’t order killing of alleged
drug boat’s crew. 5.
Hegseth followed Trump’s statement on Sunday with a truly
heinous and presumably alcohol-induced social media post. The post featured a
popular children’s book character, Franklin the Turtle, “wearing
combat gear and firing a bazooka from a helicopter on boats in the water
below, titled, “Franklin Targets Narco Terrorists.” See Raw Story, Hegseth slammed as ‘unserious’ for meme post about ‘war crimes’
allegations. (The ghoulish meme featuring Franklin the
Turtle is included in the Raw Story article. I have chosen not to reprint it
in my newsletter.) Against the above backdrop, members of House and Senate
committees with oversight jurisdiction over the military have demanded an
explanation from Hegseth and military leaders. See The Hill, Kelly says Senate will ‘put people under oath’ over reported
follow-up strikes in Caribbean. Per The Hill, Senator Kelly told
Kristen Welker on Meet the Press, We’re going
to have an investigation. We’re going to have a public hearing. We’re going
to put these folks under oath. And we’re going to find out what happened. And
then, there needs to be accountability. So, Senator Kelly will be examining Pete Hegseth under
oath, while Hegseth orders the Pentagon to consider recalling Kelly to active
duty to court-martial him. Senator Kelly will win that contest of wills,
hands down. Indeed, chances are good that Pete Hegseth will be
the former Secretary of
Defense when he appears before the Senate Armed Services Committee and will
invoke his Fifth Amendment Right against self-incrimination in response to
Senator Kelly’s questions. The illegality of the attacks on non-combatant civilians
suspected of being drug smugglers is not a close question, despite the
Pentagon’s circular reasoning memo claiming, “It’s legal
because Trump says it’s legal.” But even if the Pentagon uses absurd logic to justify the
initial attacks on the boats, the second strike to kill survivors has no
defense. A group of former members of the military Judge Advocate
General’s Corp has published a memo analyzing the actions against the alleged
drug smugglers. The memo is here: Statement of the “Former JAGs Working Group” on Media Reports of
Pentagon “No Quarter” Orders in Caribbean Boat Strikes As explained in the memo, If the US is involved in an “armed
conflict” (as Trump claims), [O]rders to “kill
everybody,” which can reasonably be regarded as an order to give “no
quarter,” and to “double-tap” a target in order to kill survivors, are
clearly illegal under international law. In short, they are
war crimes. If the US is not involved in an armed
conflict (as most experts agree), [T]hese orders to kill
helpless civilians clinging to the wreckage of a vessel our military
destroyed would subject everyone from [the Secretary of Defense] down to the
individual who pulled the trigger to prosecution under U.S. law for murder. So, there is a credible case that Hegseth—and everyone in
the chain of command involved in the attack—is guilty of war crimes or
murder. Trump’s tepid defense—“Pete told me he didn’t
give the order”—doesn’t address the underlying criminality of the
conduct. And does anyone really believe Hegseth’s denial? His
mockery of the allegations of war crimes shows that he does not possess the
intelligence or the morality to understand why his actions are war crimes or
murder. [I am not suggesting that a defense of “I am too stupid or depraved”
to commit a war crime is meritorious. Pete Hegseth will be held to the
standard of a reasonable person.] Indeed, Hegseth’s “investigation” of Senator Kelly shows
that he has no clue about the law governing the use of military force. As
many commentators on social media noted over the weekend, the military’s
legal guidance directly supports Senator Kelly’s statement and refutes
Hegseth's position. See Dept. of Defense Law Of War Manual (June-2015) Updated July 2023 The Law of War Manual says the following regarding the
duty to refuse illegal orders: 18.3.2
Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations. Members of the armed
forces must refuse to comply with clearly
illegal orders to commit law of war violations. In addition, orders should
not be construed to authorize implicitly violations of law of war. And, in a passage that should have Hegseth and those in
the chain of command staring at the ceiling as they try to sleep at night,
the Law of War Manual addresses the tactic of targeting survivors of
shipwreck: 18.3.2.1
Clearly Illegal Orders to Commit Law of War Violations. The requirement to
refuse to comply with orders to commit law of war violations applies to
orders to perform conduct that is clearly illegal or orders that the
subordinate knows, in fact, are illegal. For
example, orders to fire upon the shipwrecked would be clearly illegal. Pete Hegseth will spend much of the rest of his life
justifying his illegal orders to kill non-combatant civilians in
international waters and his order to “kill everyone on board,” a command
that implicitly ordered a violation of the law of war to target survivors. While justice may be slow in catching up with Pete
Hegseth and the military commanders who violated their oath, it will happen.
It is just a matter of time. And we can hasten the day when accountability
arrives by taking back Congress in 2026 and the presidency in 2028. Concluding Thoughts We have watched for three months as the US military has
killed civilians in violation of its internal guidance, military law, and
international law. Congress has been complacent in failing to challenge Trump
and Hegseth to prevent them from abusing the military and perverting its
mission. Their actions damage the military, the American public, and the rule
of law. Over the weekend, it appears that the tipping point was
finally reached. However horrific the facts appear now, they will likely
prove to be even more horrendous than imagined when congressional committees
take testimony. And the appearance of whistleblowers and anonymous leakers
will increase as those in the chain of command realize they have become
unwitting accomplices in war crimes and murder. Slowly but surely, the wheels are coming off the flaming
dumpster of the Trump administration. When the critical threshold is
exceeded—and it appears that has happened—events will unfold quickly. We must
be prepared to take advantage of the internal recriminations, chaos, and
desertions that will overwhelm the Trump administration. When that happens, we must not be distracted from our
primary goal—taking back control of the Congress in 2026 and the presidency
in 2028. Only then can we truly begin to reestablish the rule of law and
codify reforms that will prevent any president from repeating the abuses of
Donald Trump. |
