The U.S. military has engaged in three lethal strikes killing 17 people allegedly carrying illicit narcotics through the Caribbean Sea’s international waters en route to the United States. The President and his advisors framed the attacks as justifiable national “self-defense” against an imminent foreign threat. The White House argued that the attacks also complied with the law of armed conflict (LOAC), though its statement actually references the international law related to nations entering into wars based on principles of self-defense, whereas LOAC deals with limits on the means and methods of warfare and the protections for noncombatants and civilians during conflict. President Trump suggested the strikes are lawful because the targets were “positively identified, extraordinarily violent drug trafficking cartels and narcoterrorists,” and noted this sends a “clear message.” These legal arguments have been swiftly and comprehensively criticized, and the attacks condemned as unlawful under domestic and international law including by former lawyers in the Justice Department’s Office of Legal Counsel (Marty Lederman writing in these pages and John Yoo writing in the Washington Post). Nevertheless, Secretary of Defense Pete Hegseth has stated emphatically that the military will continue these lethal operations.
This article will not reprise or expound on those strong legal criticisms. Rather, I focus on the exposure of criminal liability for U.S. servicemembers due to the orders of the President and Secretary of Defense – and the future liability risks as long as this counterdrug campaign continues to use lethal force under the same conditions.
In describing the relevant criminal prosecution risks under U.S. domestic law, this post assumes that LOAC does not regulate this strike (because LOAC is lex specialis, applying only in an actual armed conflict). Further, it assumes Trump’s jus ad bellum self-defense argument is without merit. Finally, it assumes the attacks violate International Human Rights Law’s rights to life and fair trial and its prohibition on extrajudicial killings.
But even if these attacks can be considered part of an ongoing lawful military operation in a non-international armed conflict (NIAC) akin to the campaign against al Qaeda and its associated forces or an international armed conflict (IAC) with the Maduro regime, the killings would still be crimes under LOAC’s prohibition on making “civilians the object of attack.”
Theory of the Prosecution
It is undisputed that the vessels were civilian privately-owned boats, allegedly originating in Venezuela, crewed by civilians designated “narcoterrorists” by the Trump administration. There is no evidence or allegation suggesting the vessels were approaching or otherwise threatening other ships in the area. Nor is there evidence or any claim that the alleged narcoterrorists onboard were shooting at civilians or at the U.S. military. Nor is there any evidence or allegation suggesting they engaged in any form of piracy. Nor is there any evidence or allegation that they were attempting to escape capture and lesser means of force were unavailable to the U.S. military in pursuit. There is evidence that the first boat was turning around when it was destroyed, but this does not prove they were fleeing. Even if they had been fleeing the U.S. military, less-than-lethal force like disabling shots and warnings were apparently entirely practical and possible – as Secretary of State Marco Rubio stated – and were therefore legally required.
The correct framework for the three lethal boat strikes is that civilians – who were neither members of a declared hostile enemy nation’s military or an organized non-state armed group with whom the United States is at war, and who were not directly participating in hostilities – were killed by U.S. servicemembers during the commission of a serious but nonviolent crime outside of U.S. territory by the order of the commander-in-chief. As Mike Schmitt recently wrote,
If there is no armed conflict, human rights and other law enforcement-relevant rules are the principal sources of rules and obligations … In such circumstances, weapons may not be used “against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives” (Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; see also U.N. Human Rights Committee, General Comment 36, para 12).
Despite the clear absence of an “imminent threat of death or serious injury” or “grave threat to life,” the U.S. Coast Guard did not interdict the alleged criminal narcotrafficking in the way this conduct has been historically (and recently) approached. These suspected criminals were not arrested, prosecuted, convicted, and sentenced through a regular course of criminal procedure and neutral adjudication in a court. They were killed extrajudicially for conduct that could not be plausibly labeled a military attack, use of force, or even threat of imminent harm to anyone in the United States or any other nation, and despite the opportunity and ability to use less-than-lethal force to stop the boats. An extrajudicial killing, premeditated and without justification or excuse and without the legal authority tied to an armed conflict, is properly called “murder.” And murder is still a crime for those in uniform who executed the strike even if their targets are dangerous criminals, and even if servicemembers were commanded to do so by their superiors, including the President of the United States.
This essay first describes the two domestic criminal law regimes relevant to whether a servicemember may be prosecuted and punished for such strikes: general federal criminal law and the more specific federal Uniform Code of Military Justice (UCMJ). Under each of these codes, the servicemember could be prosecuted as a principal, accomplice, or co-conspirator.
Second, I will discuss two potential defenses: the traditional “mistake of law” defense (which presents a very narrow window of success because of a Trump executive order purporting to make him the final authority of legal interpretation within the executive branch) and the military-specific “obedience to orders” defense.
Third, I will examine the weak prospects of accountability in the present political environment, examining whether these servicemembers have derivative immunity (flowing from the President’s apparent criminal immunity for “official acts”) and the much more probable event of a pardon. As a former career judge advocate officer and former court-martial prosecutor, I will refrain from opining on whether the participating service-members ought to be prosecuted for these crimes, or on the moral injury inflicted by commanding unjust acts. Instead, my principal goal is to emphasize just how exposed to criminal sanction the President has left U.S. military servicemembers.
Criminal Liability
The Uniform Code of Military Justice
The first, and most obvious, potential offense for which the U.S. servicemembers may be implicated is murder, defined in Article 118 of the UCMJ. In pertinent part:
Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when such person— (1) has a premeditated design to kill; [or] (2) intends to kill or inflict great bodily harm.
As described in greater detail in the Manual for Courts-Martial (p. IV-79) murder is the [k]illing [of] a human being . . . when done without justification or excuse.” Further,
Premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended. . . . When a fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution. The existence of premeditation may be inferred from the circumstances.
[however]
An unlawful killing without premeditation is also murder when the accused had either an intent to kill or inflict great bodily harm. It may be inferred that a person intends the natural and probable consequences of an act purposely done.
As for who could be prosecuted, we can begin with Article 77 of the UCMJ, defining “principal” as any person subject to the UCMJ who:
(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or
(2) causes an act to be done which if directly performed by him would be punishable
This is the same definition as that found for principals who are “aiders and abettors” in the federal criminal code: 18 U.S.C. § 2. Under military case law, the elements of aiding and abetting are:
(1) the specific intent to facilitate the crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of the offense.
This definition would naturally include the person who “pulled the trigger” in the Caribbean boat attacks: the officers piloting the drones and firing the missiles. But the officers’ immediate supervisors who presumably authorized the kill shot would also be liable as a principal for “commanding it.” But that supervisor took orders from a higher commander as well, so – theoretically – every officer in the chain of command who received, tailored, added specificity to, and directed downward the initial order from the President or Secretary of Defense: all would likely fall within the meaning of traditional accomplice liability, and under the UCMJ may be charged as a principal for violating Article 118. So too would many of the staff planners responsible for “facilitating the strike”: everyone from the logisticians (and their supervisors) to intelligence analysts (and their supervisors), to the team that wrote and published the operation order (and their supervisors) – everyone who played a role in determining precisely where and when to strike, what airborne platform to use, and what weapon system to employ.
It takes little imagination to see how the routine and collaborative planning, preparation, rehearsal, and execution of a military targeting mission – even for a dynamic strike on a moving target on short notice – would likely satisfy the element of “premeditation.” At the very least, such a military operation would justify the inference that the servicemembers involved intended “the natural and probable consequence of an act purposely done.” Their mission was to destroy the boat and everything on it. They did so, and the natural and probable consequence was the death of all onboard. And aside from their potential culpability as principals (under an aiding and abetting theory), these staff officers and commanders might also be liable as co-conspirators under Article 81. According to military courts, “it is sufficient if the agreement is merely a mutual understanding among the parties; the existence of a conspiracy may be established by circumstantial evidence, including reasonable inferences derived from the conduct of the parties themselves.”
Given the scarcity of known facts about which unit (though presumably this Joint Task Force) and which individual servicemembers were involved and what specific actions they took, there is little value in speculating much beyond highlighting which UCMJ offenses are most likely implicated by unjustified and unexcused homicide. While murder is the most obvious, other UCMJ offenses subject to lesser punishments may be implicated too: under a theory that servicemembers have an affirmative duty to comply with the principles of the law of armed conflict, like distinction, regardless of operation and that breach of that is a form of willful “dereliction of duty” under Article 92(3); “reckless endangerment” under Article 114; or aggravated assault or “assault with intent to commit [another] specified offense” (e.g., murder) under Article 128. Due to the military’s preemption doctrine, acts or omissions that violate specific enumerated offenses like murder can’t be charged under the very broad “conduct of a nature to bring discredit upon the armed forces” under Article 134 or “conduct unbecoming an officer” under Article 133; however, acts or omissions related to the mission planning but not addressed to the unlawful killing itself might be framed under either of these statutes, but would most likely meet the elements of “dereliction of duty.”
As with murder, each participant on the relevant staffs and their commanders may be liable for these offenses as aiders and abettors or as co-conspirators.
Federal Criminal Law
While the UCMJ exerts worldwide jurisdiction over active-duty servicemembers, the Department of Justice may exercise concurrent jurisdiction if the offense also violates other (civilian) portions of the federal criminal code, even if the crime is committed on a military installation (e.g., the planning of the strike and operation of the drone, including the missile launch, probably occurred either on a military installation inside the U.S. or aboard a Navy vessel). Accordingly, the second offense the U.S. servicemembers may be implicated under, and prosecuted in a U.S. district court, is 18 U.S.C. § 1111, the federal murder statute. Similar to the UCMJ, murder is defined as:
the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing . . . is murder in the first degree.
As Professor Lederman has already highlighted, these killings in international waters – defined by statute as part of the “special maritime and territorial jurisdiction of the United States” – seem to easily fit the murder definition and its elements. Double jeopardy prevents the United States from prosecuting under both the civilian federal criminal code and the UCMJ (because they are both federal codes from the same sovereign), so it would have to be one or the other.
Aside from the UCMJ and the general murder statute, the Trump administration’s insistence that laws of war were satisfied because the boats posed an imminent threat implies that the United States is engaged in a NIAC against Tren de Aragua or some other designated foreign terrorist organization. This would mean the federal War Crimes Act is also a possible vehicle for prosecuting U.S. servicemembers for their relevant actions – targeting a civilian boat, crewed by civilians, who were not members of an armed group conducting hostilities against the United States or anyone else, nor individually “directly participating in hostilities.” This deliberate targeting of civilian noncombatants – whether they were “criminals” or not – violates 18 U.S.C. § 2441(d)(1)(D), which categorizes “murder” as a “grave breach of Common Article 3” to the Geneva Conventions – the treaty governing conduct during a NIAC:
The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.
The only legal theory in which these killings would not violate domestic or international law is if the United States is engaged in an international armed conflict with Venezuela and the boat crews were members of the Venezuelan armed forces (or members of an organized armed group fighting in a NIAC), making them lawful targets anywhere the belligerents are engaged in hostilities (assuming they are not surrendering or otherwise hors de combat). No facts – none – support such a theory and the Trump Administration has not attempted to make that case (other than loosely tying Tren De Aragua to the Venezuelan government for the purpose of invoking the domestic Alien Enemies Act).
Defenses
Mistake of Law
Generally, “mistake of law” is not a defense to a criminal prosecution, including in a court-martial (Rule for Court-Martial 916(l)(1)). Like most jurisdictions, the military justice system provides for a limited exception: “mistake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency.” If the servicemember claims that he believed his conduct was legal, this “reasonable reliance” on a government official’s statement is one plausible defense for the servicemembers charged with crimes stemming from the boat strikes.
On Feb. 18, President Trump signed an executive order asserting that he and the attorney general are the final arbiters of what is “legal” within the executive branch.
The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law.
Jack Goldsmith noted that new policy statement “is dangerous if applied to legal advice at the outset of the policy implementation process (where OLC typically weighs in), when the legality of presidential action is vetted. In that context, administration lawyers are not supposed to ‘zealously advance’ the client’s interest. They are supposed to apply the law to determine if the action is lawful.” No downstream legal opinion by any attorney in the DoD, including by judge advocates in the units assigned this mission, that challenged the legality of the boat strikes would be authoritative. The servicemember need only aver that the order to conduct the strike was deemed lawful by the President or Attorney General to avail themselves of this defense, whether in a court-martial, U.S. district court, or a state prosecution. That said, for the reasons that a patently illegal order would not aid a defendant as discussed below, the “mistake of law” defense would also be highly difficult to sustain.
Obedience to Orders
The second likely defense that any of these servicemembers might use is the military-specific “obedience to orders” affirmative defense (Rule for Court-Martial 916(d)). It is related to the “reasonable reliance” defense noted above, for it shields a subordinate from criminal liability when he or she acted “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.” Military law imposes a presumption of lawfulness: “An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime” (see Manual for Courts-Martial, part IV, para. 16.c.(2)(a)(i)). Because the order came from the President, was transmitted down through the chain-of-command, and potentially buoyed by the policy that a presidential determination of legality is “authoritative” within the executive branch, it is not obvious that the servicemember of ordinary sense and understanding would know this boat strike to be a “patently illegal order” that “directs the commission of a crime.” The servicemembers may be able to plausibly raise this defense.
However, the Administration’s insistence that this strike complied with the laws of war, implicitly accepting that the rules from the Geneva Conventions and customary international law apply, should work to undermine the chances of successfully raising this defense. Commanders – indeed all servicemembers – are trained on the basic protections afforded to civilians by the LOAC, including the fundamental rule that civilians are never to be made the object of the attack. Only a civilian’s direct participation in hostilities warrants an exception. The Administration’s feeble legal defense of the strike has been thoroughly criticized (see sources above) as no facts suggest that the civilians on board were engaging in a hostile course of conduct or threatening anyone with means of violence traditionally understood. Therefore, a military judge (who must make a finding on the lawfulness of the order) could easily determine that the presumption of lawfulness was overcome: all servicemembers would reasonably know this was an order to kill civilians who posed no lethal military threat to the armed forces or to any other civilian justifying use of force in self-defense and would therefore be “patently” illegal.
A short counterfactual illustrates. If a judge were to find otherwise, he or she would be implicitly impeaching the DoD’s long-established program of training its troops to comply with the laws of armed conflict and the Department’s entire promise that it regularly and consistently follows the laws of war, regardless of type of military operation: that the “law of war is of fundamental importance to the Armed Forces of the United States … [t]he law of war is part of who we are.” In other words, a military judge accepting this defense would indict the state of self-discipline and fidelity to the rule of law of the U.S. armed forces dating back many decades.
Prospects for Accountability
Aside from the defenses these servicemembers might raise if charged, there remain strong reasons to assess there will be no criminal accountability for these extrajudicial killings. One possible argument, yet to be tested in any court, is that a servicemember has derivative immunity for actions taken pursuant an illegal order from the President, provided that order was at least in the President’s “official” capacity. According to the logic of this argument, if the Commander-in-Chief is criminally immune for an official act, all those subordinates who facilitated the execution of that official act also remain immune. This was the essence of Justice Sotomayor’s “SEAL Team 6” hypothetical in her dissent in the Trump v. United States immunity decision last summer. But as I wrote previously:
The issue of presidential immunity for the commander in chief—whether absolute or presumed—is absolutely irrelevant to the underlying lawfulness of the order itself. From the point of view of the military agent commanded to do some act, an order does not become lawful (and therefore binding under penalty of court-martial) merely because an order is an “official” act of the commander in chief.
The Supreme Court has not said subordinates would obtain immunity in such cases, and the congressional prerogative to punish war crimes committed by U.S. servicemembers would presumably prevail in such prosecutions.
The more likely impediment to criminal accountability will be a presidential pardon. President Trump is the only president in American history to have pardoned servicemembers for murders that could have been prosecuted as war crimes. The most likely impediment to any accountability is the unwillingness of prosecutors, within their discretion, to bring charges. The widely-discussed firings of the service TJAGs back in February has likely chilled any ability or desire to independently pursue charges that JAGs reasonably believe will anger the President and Secretary of Defense. Career prosecutors within the Department of Justice have similar reasons to let sleeping dogs lie.
I see only one viable route to a prosecution: President Trump fails to grant the servicemembers pardons while still in office and a future administration pursues the cases (with no statute of limitations for murder).
* * *
Trump’s order to the military to kill alleged narcoterrorists on boats in international waters without any legitimate legal ground was morally abhorrent. But it also exposes the servicemembers participating in these attacks to a range of criminal punishments under two distinct legal regimes: federal criminal law (under both 18 U.S.C. § 1111 and the war crimes statute); and the UCMJ (murder and other military offenses like “service-discrediting conduct” and “dereliction of duty”). However, the disinclination of federal prosecutors to hold servicemembers accountable for following an order by the President and for which Trump himself is immune makes the prospect of criminal accountability highly improbable. But that should not cloud this simple truth: the President and Defense Secretary issued an illegal order; that order propagated down the chain-of-command; plans were formulated, mission orders were issued, and the targets were destroyed obediently following that original unlawful command. In this way, the commander-in-chief himself has prejudiced good order and discipline within the armed forces, placing U.S. servicemembers in the position of having to contemplate whether they’d escape justice.
