Did Pete Hegseth Give an Illegal Order?

New reporting on the Caribbean boat strikes sparks congressional scrutiny.

Earlier this month, six Democratic members of Congress released a controversial video urging members of the military not to comply with illegal orders. President Trump quickly accused them of “SEDITIOUS BEHAVIOR, punishable by DEATH!” The Pentagon opened an investigation into one of the lawmakers, and the FBI sought interviews with the rest.

The video did not identify any specific illegal orders that had been or might be given. At the time, the Democrats said they were not aware of any being issued.

This was all a bit strange: it is assuredly not treasonous to post a vague video on the internet, but urging service members to defy the commander-in-chief is still something generally not done lightly. You would usually want to have a specific concern in mind before doing so; if the Democrats had one, they did not reveal it.

That was then.

It did not take long before allegations surfaced of a military order that several lawmakers — of both parties — have identified as potentially illegal. The furor concerns a Washington Post report, published this past Friday, about a September 2 strike against alleged drug traffickers in the Caribbean.

According to the Post, as commanders watched the boat ablaze after the strike, they saw “two survivors were clinging to the smoldering wreck.” The Special Operations commander overseeing the attack then ordered a second strike, the Post reported, to comply with an earlier directive by Defense Secretary Pete Hegseth to kill everybody on the boat.

The two men were “blown apart in the water” by the second strike, says the Post.

The September 2 strike(s) were the beginning of what has become 21 (and counting) American attacks against boats said to be ferrying drugs, primarily from Venezuela. Congress has offered no authorization for the strikes, which have killed at least 83 people. Presidential use of force without Congress already exists in a murky legal gray area, as we will explore below. But the Post report added fresh legal questions.

The laws of war have long prohibited countries from attacking individuals who are hors de combat (French for “out of combat”) — those who are injured and unable to fight back. American law prohibits it, too.

18 U.S. Code § 2441 states that “whoever, whether inside or outside the United States, commits a war crime…shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”

It lists several examples of war crimes made illegal by the statute; one of them is this (emphasis mine):

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 Defense Department’s Law of War Manual, which is supposed to inform Pentagon decisionmaking, states that “persons who have been rendered unconscious or otherwise incapacitated by wounds, sickness, or shipwreck, such that they are no longer capable of fighting, are hors de combat.” These individuals are in a “helpless state, and it would be dishonorable and inhumane to make them the object of attack,” the manual adds (while noting that someone must be “wholly disabled from fighting” to qualify for this protection).

Later, the manual also says that “members of the armed forces must refuse to comply with clearly illegal orders to commit law of war violations,” as the Democratic members of Congress stressed in their recent video. What kind of order would that include? “For example, orders to fire upon the shipwrecked would be clearly illegal,” the manual makes explicit.

An excerpt from the Defense Department’s Law of War Manual.

Unlike many other scandals that have erupted during the second Trump administration, a string of Republican lawmakers have reacted to this one with alarm. “Obviously, if that occurred, that would be very serious and I agree that that would be an illegal act,” Rep. Mike Turner (R-OH) said on CBS News yesterday about the Post report. “If it was as if the article said, that is a violation of the article of war,” Rep. Don Bacon (R-NE) echoed on ABC News, though he expressed skepticism that anyone at the Pentagon would be so “foolish” as to “go against common sense” in this way.

Defense Secretary Pete Hegseth referred to the Post story as “fake news,” although he did not deny a specific element of the report. “As we’ve said from the beginning, and in every statement, these highly effective strikes are specifically intended to be ‘lethal, kinetic strikes,’” Hegseth said, although that would seem to confirm, not debunk, the reporting.

“Our current operations in the Caribbean are lawful under both U.S. and international law, with all actions in compliance with the law of armed conflict—and approved by the best military and civilian lawyers, up and down the chain of command,” Hegseth added.

President Trump then told reporters Sunday that Hegseth “did not” give the order to kill everybody on the boat, and “I believe him, 100 percent.”

The administration’s response doesn’t appear to have quelled concerns on Capitol Hill, seeing as committees in both chambers of Congress quickly moved to launch bipartisan investigations into the second strike. Here is the statement from Senate Armed Services Committee chairman Roger Wicker (R-MS) and ranking member Jack Reed (D-RI):

The Committee is aware of recent news reports — and the Department of Defense’s initial response — regarding alleged follow-on strikes on suspected narcotics vessels in the SOUTHCOM area of responsibility. The Committee has directed inquiries to the Department, and we will be conducting vigorous oversight to determine the facts related to these circumstances.”

And here is the statement from House Armed Services Committee chairman Mike Rogers (R-AL) and ranking member Adam Smith (D-WA):

This committee is committed to providing rigorous oversight of the Department of Defense’s military operations in the Caribbean. We take seriously the reports of follow-on strikes on boats alleged to be ferrying narcotics in the SOUTHCOM region and are taking bipartisan action to gather a full accounting of the operation in question.

---

These allegations are notable on their face, of course, but the congressional response is also striking. Of everything that has happened in the 10 months since Trump returned to office — controversial pardons, DOGE, the Air Force One deal with Qatar, the president’s refusal to spend appropriated funds, prosecutions against political rivals, deployments of the National Guard, mass deportations — this is one of the few times that Republican committee chairs have responded by launching a major investigation.

There is currently a bipartisan House Oversight Committee probe into Jeffrey Epstein, which obviously has implications for the president, but isn’t really examining something the administration did. The Senate Health Committee held a hearing after the CDC director was fired amid a dispute over vaccine policy, although it is not clear that a broader investigation has been initiated. Sens. Wicker and Reed previously issued a bipartisan statement expressing concern about Hegseth’s use of Signal — but all they did was call on the Pentagon inspector general to launch an investigation, rather than starting a Senate Armed Services Committee probe themselves.

It is rare under any administration for lawmakers of the president’s party to launch an investigation into the White House, but historically it has still happened in especially grave circumstances, and it is now happening in regards to the second September 2 strike. What sets this scandal apart?

What’s being alleged, for one. A war crime is an incredibly serious offense: as noted above, it is punishable by death under U.S. law. The facts here also seem fairly cut-and-dried: you might expect the Pentagon to dispute that the individuals killed in the second strike were not hors de combat, perhaps by arguing that they were not “wholly disabled from fighting” as the Law of War Manual requires. Instead, Hegseth basically just responded to the Post by saying that the goal of the operation was to be lethal, even when — under these specific circumstances when the targets were allegedly disabled — lethality may have been illegal.

The fact that Hegseth did not dispute any specific elements of the Post story is a tell that there may be nothing to dispute.

Personalities are always involved, of course. The Armed Services Committees tend to attract (surprise, surprise) retired military personnel who take the laws of war very seriously and national security hawks who have already been losing faith in Hegseth on a range of matters. Wicker has repeatedly criticized the Defense Secretary, especially raising concerns about his handling of the Russia/Ukraine conflict; Wicker and Rogers, the two Armed Services Committee chairs, also released a joint statement in October saying that they “strongly oppose” the Pentagon’s drawdown of troops from eastern Europe.

These were already Republicans primed to take allegations against the Trump administration more seriously — and who seem to have concerns about Hegseth specifically — which makes it less surprising that they would respond to the Post report by launching an investigation.

It is also worth considering the stage of the administration we have reached: Trump is in a politically weaker state than during those previous scandals. Remarkably, according to Gallup, Trump’s approval rating is basically at post-January 6th levels: the polling firm’s latest reading recorded his approval rating at 36%, barely higher than his all-time low of 34% recorded after the Capitol riot. (His current average approval rating is low but not quite so low: 41%, per Silver Bulletin.)

You might think that, even still, attacks against alleged drug traffickers would be popular; that’s certainly what Trump allies are counting on. (“Democrats defending Narco-Terrorists is peak TDS,” Missouri Sen. Eric Schmitt posted, for example, referring to “Trump Derangement Syndrome.”) And yet, there is evidence that Americans aren’t firmly on Trump’s side here either: per a recent CBS News/YouGov poll, a slim majority (53%) approve using military force to attack boats suspected of bringing drugs into the U.S. — but a supermajority expressed concerns about a broader campaign.

76% of Americans said that the Trump administration has not clearly explained its position on military action in Venezuela, and 75% said the U.S. needs to show evidence that the boats it attacks are carrying drugs. 70% of Americans said they are opposed to the U.S. taking military action in Venezuela, which Trump is reportedly considering.

The thing about running (and winning) as an anti-interventionist is that voters expect (and want) you to govern that way.

Finally, the Post report wasn’t published in a vacuum. Not only did many Republican lawmakers already harbor concerns about Hegseth generally, they have also been skeptical about the Caribbean boat attacks specifically.

It is worth remembering that the attacks existed on tenuous legal ground even before the allegedly illegal follow-on strike. It is generally accepted that the president can use military force even when Congress has not given authorization or declared war (as it has not here) — but usually only in self-defense.

Here, the Trump administration has yet to offer any evidence that the alleged drug traffickers pose an imminent threat to U.S. national security that requires them to be killed (in the past, the U.S. has usually arrested such traffickers) — or even evidence that these individuals are drug traffickers at all.

The Post report adds just one more layer on top. Even if these individuals are drug traffickers and if those drug traffickers pose an immediate threat (neither of which have been proven to begin with), it would still be illegal to kill them if they are defenseless. If either of the first two ifs aren’t true, then the strikes were already illegal regardless of the Post report: hors de combat only refers to combatants who have been placed out of combat by way of injury. If the alleged drug traffickers already weren’t legitimate combatants, as some legal experts argue, then killing them was already tantamount to illegal murder.

More details are likely to emerge soon. Sen. Mark Kelly (D-AZ), a member of the Armed Services Committee, indicated that the panel plans to hold a public hearing putting personnel involved in the September 2 strike under oath. It is also possible that we will hear testimony from Adm. Alvin Holsey, who resigned as commander of Southern Command (or SOUTHCOM, the military command with jurisdiction over the Caribbean) amid concerns that the strikes against alleged drug traffickers were unlawful.

Meanwhile, all signs point to Trump expanding, not limiting, his campaign against Venezuela. According to the Miami Herald, Trump gave Venezuelan leader Nicolás Maduro an ultimatum in a phone call last week, telling him that the only way to save himself and his family would be to leave the country now. After Maduro remained in place, Trump declared Saturday that the airspace above Venezuela should be considered “CLOSED IN ITS ENTIRETY,” although he did not indicate why.

Asked yesterday if his message should be taken as an indication that the U.S. is planning to strike targets on Venezuelan land, Trump told reporters not to “read anything into it.”

Per CNN, Trump will hold an Oval Office meeting at 5 p.m. ET this evening with Hegseth, Secretary of State Marco Rubio, Chairman of the Joint Chiefs of Staff Gen. Dan Caine, White House chief of staff Susie Wiles, and deputy chief of staff Stephen Miller to plan his next steps in Venezuela.