War This, War That, Fleet Sent to Kill and Does, But We Aren’t at War?

  Admiral Frank Bradley 

Sec of War Pete Hegeth

Criminals or Patriots?

                             

War This, War That, Fleet Sent to Kill and Does, But We Aren’t at War?

Secretary of War (not Defense), War Department, Fog of War, War on Narco-Terrorists

“The underlying judgment that frames this entire operation is that if there is a boat with narcotics and people that are affiliated with a narcotics trafficking organization, that that’s a legitimate target?… I’ve still got questions about that.” 

Democratic Sen. Chris Coons of Delaware, December 4th, after viewing footage of the two 9/2 Naval attacks on purported narco-terrorists

“Any American who sees the video that I saw will see the United States military attacking shipwrecked sailors — bad guys, bad guys, but attacking shipwrecked sailors…Yes, they were carrying drugs. They were not in the position to continue their mission in any way… The end result was two individuals without any weaponry, without any tools of any kind, clinging to a wrecked boat … the decision was taken to kill them and that is in fact what happened. And that was pretty hard to watch.” 

House Intelligence Committee, Ranking Member, Jim Himes, Democrat of Connecticut, Dec. 4th

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.” 

Department of Defense’s Law of War Manual (2023) , Also in the Uniform Code of Military Justice.

“It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” 

Manual for Courts-Martial. Rule 916(d)

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water” 

Power granted to Congress under Article I of the Constitution and not given to the President under any provision of the Constitution (notably Article II)

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;… nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 

Due process excerpt from the 5th Amendment.

One of the most obvious and telltale pieces of evidence that a person is lying is continuously re-describing the “facts” to fit newfound or clearly inconsistent information. While the President may find solace in the 2024 Supreme Court Trump vs US ruling, granting him absolute immunity for official acts, that “get out of jail free” card is not available to either our anti-narco-boat fleet commander, Frank “Mitch” Bradley (pictured in uniform above), or the solidly inexperienced Secretary of War, Pete Hegseth. But the President is not completely out of the water, inasmuch as international tribunals are not subject to Supreme Court rulings.

The United States does not recognize the jurisdiction of the International Criminal Court, which accepts the U.N. Convention Against Torture and the Inter-American Convention on the Forced Disappearance of Persons prohibit superior orders as a defense in national legislation implementing their prohibitions. Further, if this matter is deemed to be under the notion of armed conflict, the Geneva Conventions apply… and if is not deemed such a wartime aggression, the analysis falls under statutes almost everywhere against “murder.” But a post-term Trump has to worry about countries that do recognize those courts… if he travels to one.

So that morphing official response from Adm Bradley and Sec Pete Hegseth, shifted from blaming the “fog of war” for not clearly seeing the second strike (Hegseth who watched it evolve) to they were about to radio their leaders (Bradley, until he discovered from the footage that if there were any radios or other communications devices on board, the first strike clearly eliminated them) and they were attempting to resume the transportation of narcotics, which would have been difficult while desperately clinging to a piece of wood. Despite substantial evidence that Hegseth issued a master order, “kill everyone,” he denies that he said that, and virtually every Republican willing to comment on that, including the President, says they believe him.

Due process, as articulated above, combined with the exclusive right the to declare or initiate war as set forth in Article I noted above, is the threshold issue. And if Trump can usurp the right to create global tariffs/taxes despite that power given exclusively to Congress, can he initiate a war without either congressional or judicial approval? Can Trump unilaterally declare a peaceful protest here in the US to be rebellion or insurrection, and thus order federal troops to kill those in the protest? I’m sure the vast majority of Americans would never imbue such a blanket right unilaterally to condone soldiers shooting peaceful civilians, but the Supreme Court has granted Trump too many unilateral rights already. Let’s see how they rule on his usurpation of the right to implement his economy-destroying tariff program.

Back to whether there is any criminality in the US boat strikes, with and without killing survivors. An excellent military analysis appears in the December 1st Just Security: “From the perspective of those receiving them, unlawful orders raise two issues. The first is whether there is a duty to refuse them. The United States clearly imposes such a duty. In particular, the emphasizes the obligation, giving, as a paradigmatic example, an order to kill shipwrecked persons.

“The second issue raised by orders is whether they constitute a defense available to those acting unlawfully, but pursuant to them. It has long been the case under customary international law that ‘superior orders’ is no defense for war crimes. The Charter of the International Military Tribunals at Nuremberg and Tokyo excluded the defense (arts. 8 and 6, respectively), as did the 1950 Nuremberg Principles (prin. IV). The absence of a superior orders defense has also been confirmed in the statutes of modern war crimes tribunals, including those of the International Criminal Court…

“The Sept. 2 strikes on the purported drug boat neither violated the law of armed conflict nor amounted to war crimes, because they did not occur during an armed conflict. However, if the facts are as reported, there is little question that the order by Secretary Hegseth and the ensuing order by Admiral Bradley to conduct the second strike were unlawful, because the killing of the two survivors was a serious violation of international human rights law.

“Moreover, both orders were clearly unlawful. Under well-established law, those who complied with the orders cannot escape individual criminal responsibility for the killing of the two survivors in the event they are brought to trial in a U.S. military court-martial, a federal trial, or a domestic criminal proceeding in another State that has jurisdiction, for instance, based on the nationality of the victims. If actually issued, these orders irresponsibly and unlawfully placed all those involved in the attack in serious legal jeopardy. If the reporting is accurate, those orders should, as a matter of law, have been refused.”

It can take months, even years, to generate a clear and precise understanding of what has happened… but as we have seen over the years, generally, sooner or later, the truth will out. Just as biased Republicans call the January 6, 2021, attack on the Capitol to have been a peaceful demonstration of patriotic Americans, notwithstanding unambiguous video evidence to the contrary, so too, responsibility for any proven wrongs here will find and punish any culprits.

I’m Peter Dekom, and absent a transition to a Trumpian autocracy, the slow wheels of justice do turn… and almost always reach a reasonable determination.