For days, President Donald Trump and his allies pilloried half a dozen Democrats for their video that urged troops to disobey any potential illegal orders from the administration
Now we have a case-in-point example of what those Democrats may have been talking about. The US military in early September conducted a follow-up attack — known as a “double-tap” strike — on an alleged drug vessel in the Caribbean after the first strike did not kill everyone on board, CNN reported last week.
The US military was aware that survivors remained, according to CNN’s sources. The news — which was first reported by The Washington Post and The Intercept — has caught the attention of lawmakers on both sides of the aisle.
The administration’s strikes on alleged drug vessels were already legally dubious, given there is no declared war in the Caribbean. But killing survivors takes things to a new level, given that the law of armed conflict prohibits the execution of an enemy combatant who is removed from the fight due to injury.
Indeed, killing the survivors of a shipwreck is often treated as an archetypal example of an illegal order and a war crime.
“They’re breaking the law either way,” Sarah Harrison, a former associate general counsel at the Pentagon, told CNN. “They’re killing civilians in the first place, and then if you assume they’re combatants, it’s also unlawful — under the law of armed conflict, if somebody is ‘hors de combat’ and no longer able to fight, then they have to be treated humanely.”
The administration initially lashed out at the reporting. But by Monday, White House press secretary Karoline Leavitt confirmed there was a second strike while claiming that it was lawful.
The situation is serious enough that even the Republican chairmen of the relevant House and Senate committees have vowed to investigate.
Below are some of the major questions about the brewing controversy.
How exactly did this go down?
The military assessed there were survivors after the first strike, according to CNN’s reporting. But as for the second strike, there is some question about who ordered what and when.
For instance, both CNN and the other outlets have reported that Defense Secretary Pete Hegseth ordered the military to make sure the strike killed everyone on board.
But CNN reports that it’s not clear whether Hegseth knew there were survivors before the second strike — or whether the military simply believed the follow-up attack was necessary to comply with an earlier order.
Trump said Sunday night that Hegseth “said he did not order the death of those two men.”
Leavitt said Monday the second strike was ordered by Adm. Frank M. “Mitch” Bradley, the commander of US Special Operations Command, and that “he was well within his authority to do so.”
None of which would impact the central question about whether this was illegal or a war crime. And Hegseth could still ultimately be responsible, given it seems to be his initial order that was being acted upon.
Hegseth said Bradley is “an American hero, a true professional, and has my 100% support” in a post on X later Monday that also pointed to Bradley’s “combat decisions.”
“I stand by him and the combat decisions he has made — on the September 2 mission and all others since,” Hegseth wrote.
Why is the administration giving mixed signals?
The administration’s response to this has been characteristically confusing.
Hegseth in his statement Friday slammed the “fabricated, inflammatory, and derogatory reporting,” while Pentagon spokesperson Sean Parnell said the “entire narrative was false.” And the White House this weekend claimed the story was made up.
But Hegseth didn’t directly deny the substance of CNN and others’ reporting — and actually seemed to justify such strikes.
“Biden coddled terrorists, we kill them,” Hegseth wrote on X.
Later in the weekend, he posted a mock-up of a children’s cartoon turtle launching missiles at apparent drug boats.
Trump said Sunday night that he “wouldn’t have wanted” the second strike and that Hegseth had denied ordering it. But the president didn’t deny there was a second strike.
By Monday, Leavitt confirmed the second strike — but indicated that Hegseth hadn’t directly ordered it. (The initial reports didn’t claim that he had.)
Leavitt didn’t directly respond when asked how a second strike would be legal and whether Bradley had been aware people were alive. She said the strike was “conducted in self-defense to protect Americans,” but didn’t say how the survivors posed a threat.
Even Trump’s comments seemed to keep the situation at arm’s length, suggesting he was just taking Hegseth’s word for having not ordered the follow-up strike and saying he didn’t know whether it had happened.
So after the news broke Friday, why did it take the White House until Monday to confirm that the second strike did happen?
The handling of this has been messy from the start, and that suggests there’s plenty to probe.
Why did the military apparently change its approach?
One of the more notable aspects of this episode is how the military handled a similar situation very differently about a month later.
After an October 6 strike also left survivors, the military did not follow up with a “double-tap” strike like it did on September 2. Instead, it rescued the men and sent them back to their home countries.
Releasing the men rather than holding them was already controversial, given the administration has claimed these men are “narco-terrorists.” (Declining to detain them had the very important benefit of avoiding a legal dispute over the boat strikes.) But now that October 6 strike appears relevant for a new reason.
Asked whether there had been a change in policy between the two strikes, Leavitt told reporters on Monday: “Not to my knowledge.”
Why did the commander in charge announce an early retirement?
October 6 is an important date for another reason. It’s when, CNN has reported, the admiral in charge of the relevant region clashed with Hegseth and Joint Chiefs of Staff Chairman Dan Caine over the boat strikes during a meeting.
Adm. Alvin Holsey, who oversees US Southern Command, announced an early retirement the following week, after just one year in charge. He is due to depart this month.
A valid question seems to be whether their clash had anything to do with the treatment of such survivors. (There were, of course, other issues that could have contributed, including the administration’s growing saber-rattling about war with Venezuela.)
We know relatively little about the circumstances of Holsey’s sudden retirement. But with House and Senate committees now preparing to probe the follow-up strike, the plot has been thickened.
These probes would seem to demand his testimony. And it looms large.
Did the administration lie to some lawmakers?
It’s not just the GOP chairmen of those committees who seem concerned. Some other Republicans are also speaking out.
Perhaps most notable among them on the Sunday news shows was Rep. Mike Turner of Ohio, a former chairman of the House intelligence committee.
Turner not only said that what has been reported about the double-tap strike would be illegal, but he also suggested it ran contrary to what the administration said when it briefed Congress about the strikes.
“This is completely outside of anything that has been discussed with Congress,” Turner told CBS’ “Face the Nation.”
Leavitt said Monday that Hegseth had spoken with lawmakers who expressed concerns about the strikes over the weekend.
The administration potentially misleading Congress about this could be read as tacit acknowledgement that the strikes, which have killed more than 80 people, were not OK.
What’s more, while GOP leaders have generally allowed Trump to treat Congress as more of a nuisance than a powerful branch of government, lawmakers might not take kindly to having the wool pulled over their eyes over something so serious.
What does it say about Trump’s control of the military?
At a higher level, the episode reinforces the threat of what Democrats warned about in that video about illegal orders.
While the administration and its allies have acted as though it’s beyond the pale for Democrats to even talk about this, the lawmakers aren’t making up this threat out of thin air. There is plenty of history here.
Trump as a candidate in 2016 floated giving apparently illegal orders on torture and killing terrorists’ family members. When pressed on whether soldiers would obey, he responded by saying they would. (Trump later backed off and assured he would give only legal orders.)
High-ranking officials from Trump’s first term repeatedly spoke about him trying to do or even ordering illegal things — things like shooting protesters in the leg.
And the follow-up strike aside, the potential legal problems with the boat strikes were already apparent. Indeed, as noted above, the administration appears to have gone out of its way to avoid allowing the courts to weigh in on the strikes’ legality.
The administration has made a show out of legally probing the six Democrats who cut the video, including Sen. Mark Kelly of Arizona. Now it’s looking like those Democrats raised a very salient issue at a very fortuitous time.
This story has been updated with additional comments from Pete Hegseth.
