Trump defense secretary crossed 'a bright legal line': constitutional law expert

The White House on Monday confirmed prior reports that Secretary of Defense Pete Hegseth directed U.S. forces to fire a second time on survivors of an initial strike on a boat in the Caribbean Sea. Writing for the New Republic, former U.S. Attorney and constitutional law expert Harry Litman accused Hegseth of breaking a "foundational" rule of warfighting and crossing a "bright legal line."

The Trump administration has been engaged in a widely criticized campaign of strikes on boats in the Caribbean, claiming with little to no evidence that the crafts are linked to Venezuelan drug smuggling. According to a report from the Washington Post, on September 2, U.S. forces fired a second time against survivors of an initial strike, in line with an order from Hegseth to "kill them all." Such a strike would, according to legal experts, very likely amount to a war crime, with U.S. laws specifically singling out attacks on "shipwrecked" individuals as a clear example of an unlawful military action.

White Press Secretary Karoline Leavitt on Monday confirmed that the strike occurred, but also appeared to pass direct blame from Hegseth to a subordinate officer, Admiral Frank M. Bradley, and insisted that the strikes were conducted in accordance with laws governing armed conflicts.

In his piece from Monday, Litman characterized this incident in unsparing terms, calling the reports "like something out of Apocalypse Now" and arguing that the "the second strike appears to cross one of the clearest lines in the law of armed conflict."

"The Defense Department’s Law of War Manual prohibits declaring 'no quarter,' forbids conducting operations 'on the basis that there shall be no survivors,'" Litman wrote. "And states unequivocally that 'persons placed hors de combat [out of the fight] may not be made the object of attack,' including those incapacitated by shipwreck, unless they commit a fresh hostile act or attempt escape.

"This rule is foundational," he stressed.

Litman further wrote that the Trump administration's efforts to investigate six Democratic lawmakers over a video urging military members to disobey "unlawful orders," when contrasted against the reports about the second boat strike, create a grim reminder of some of the darkest chapters in U.S. history, when the government opted to go after people who spoke about official misconduct rather than the misconduct itself.

"It’s an all too familiar — and invariably regretted — story in American constitutional life," Litman wrote. "From World War I sedition prosecutions to McCarthy-era investigations to parts of the post-9/11 surveillance apparatus, some of the country’s worst civil liberties violations began with the assumption that dissent was a threat. In nearly every case, the government insisted at the time that extraordinary circumstances justified extraordinary measures. In nearly every case, history delivered a harsher verdict."