A retired general, UN experts and former senior military legal advisers were among those who warned that Hegseth and service members directly involved in the strike — as well as other attacks on more than two dozen boats in the Caribbean and eastern Pacific — could be responsible for war crimes or murder.
Raskin and Liu raised this concern directly to Bondi, writing: “The intentional targeting of incapacitated individuals constitutes a clear violation of the Department of Defense’s Law of War Manual, which expressly prohibits attacks on persons rendered incapacitated by shipwrecks. Such conduct would give rise to criminal liability under the War Crimes Act if the Department claimed to be involved in an armed conflict, or under the Federal Homicide Act in the absence of such a conflict.”
The administration has insisted that it is attacking the boats as part of an effort to stop drug smuggling out of Venezuela, and has claimed that the United States is in armed conflict with drug cartels there, although international and domestic intelligence agencies have not identified the country as a significant source of any drugs flowing into the United States. While President Donald Trump ordered the boat strikes, the administration also escalated tensions with Venezuela by seizing oil tankers, claiming to close its airspace, and demanding the departure of President Nicolas Maduro from power.
Critics from both parties in Congress have questioned the claim that the bombed boats posed a threat to the United States, and Raskin and Liu noted that the ship attacked on September 2 in particular did not appear to pose any threat, as it appeared to have been bound for Suriname, “not the United States, at the time it was destroyed.”
“The intentional targeting of incapacitated individuals constitutes a clear violation of the Department of Defense’s Law of War Manual, which expressly prohibits attacks on persons rendered incapacitated by shipwreck.”
“Congress never authorized the use of military force against Venezuela; the boat moving toward Suriname poses no clear and present danger to the United States; and the secret legal memos the Trump administration provided us to justify the attacks are completely unconvincing,” the lawmakers wrote.
Raskin and Liu stressed that Hegseth’s explanations for the September 2 strike in particular were “variable and contradictory.”
“Minister Hegseth claimed in various ways that he had not been privy to the details of the September 2 raid because of the ‘fog of war,’ and that he had actually left the room before issuing any explicit order to kill the survivors,” they wrote. “Later reports indicate that he issued a general order to kill all passengers on board before the raid, but delegated the specific order to kill the survivors to one of his subordinates.”
Democrats suggested that the known facts about the strike, as well as Hegseth’s muddled claims, warrant a Justice Department investigation.
“Issuing a general order to kill any survivors constitutes a war crime,” they wrote. “Similarly, carrying out such an order also constitutes a war crime, and the Manual for Military Courts explicitly states that ‘acting in accordance with orders’ is not a defense ‘if the accused knew that the orders were unlawful.’ Outside of war, the killing of defenseless, helpless men clinging to wrecks in open water is merely murder. Federal criminal law considers committing murder within the ‘special maritime and territorial jurisdiction of the United States,’ which includes ‘the high seas.’ Conspiracy to commit murder is also a federal crime.”
Raskin and Liu also stressed that the two memos issued by the Justice Department’s Office of Legal Counsel (OLC) “do not and cannot provide any legal protection for the Secretary’s conduct.”
A 2010 Office of Legal Counsel memo noted that the federal murder statute does not apply “when the target of a military strike is an enemy combatant in a congressionally authorized armed conflict.” “In stark contrast, in the case of the Venezuelan boats, Congress has not authorized the use of military force of any kind.”
A new classified memo also noted that “individuals who participate in military strikes on alleged drug smuggling boats in Latin America will not be subject to future prosecution,” and claimed that “the president’s inherent constitutional authority in any undeclared ‘armed conflict’ would shield the entire chain of command from criminal liability.”
“Experts in criminal law, constitutional law, and the law of armed conflict find this sweeping and unsubstantiated claim implausible, at best,” the Democrats wrote.
They also noted that even the author of the George W. Bush administration’s notorious “torture memo,” conservative legal scholar John Waugh, said Hegseth’s order on September 2 was clearly against the law.
“Attorney General Bondy, even those who have condoned and defended torture in the name of America say the Trump administration has violated federal law and the law of war,” Raskin and Liu wrote. “We urge you to do your duty as this nation’s chief law enforcement official to investigate the Secretary’s clear and serious violations of federal criminal law.”
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