The crisis exposed by the recent reporting on the September 2 Trinidad strike is not just about what U.S. forces may have done in the water. It’s about what the administration did on land. According to detailed reporting in The Washington Post and The Intercept, a suspected Venezuelan smuggling boat was destroyed, survivors remained afloat, and a follow-on strike killed them. That alone demands scrutiny, and Sunday, lawmakers from both parties—members of the Armed Services and Intelligence committees—called for exactly that.
Yet the Trump administration’s first move was not to address the substance of those concerns but to focus instead on the members of Congress who accurately described the law. The instinct to investigate truth-tellers rather than alleged illegality has marked some of America’s darkest constitutional moments. And it is the through line of this one.
The Washington Post reports of the episode—based on individuals with direct knowledge—are like something out of Apocalypse Now. After U.S. forces struck the suspected drug-smuggling vessel near Trinidad around Labor Day, survivors were left in the water, clinging to wreckage. U.S. Special Operations Forces then killed some or all of those survivors in a second strike, following what one source described as a verbal directive from Defense Secretary Pete Hegseth: “Kill everybody.” Admiral Frank “Mitch” Bradley allegedly ordered the follow-on attack after learning that survivors remained. He has suggested that the possibility that the survivors might call for help was sufficient grounds for their elimination.
These allegations remain contested; Hegseth denies ordering illegal action, and the Pentagon has opened a review. But if the facts are broadly accurate, the second strike appears to cross one of the clearest lines in the law of armed conflict.
As former Office of Legal Counsel head Jack Goldsmith has explained, even the administration’s own reported legal theory—that the campaign is part of a “non-international armed conflict” with transnational drug-trafficking networks—provides no legal basis for killing shipwrecked survivors. The Defense Department’s Law of War Manual prohibits declaring “no quarter,” forbids conducting operations “on the basis that there shall be no survivors,” 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. The 1863 Lieber Code treated killing an already disabled enemy as a serious offense; the 1907 Hague Regulations codified the same principle; modern manuals across militaries retain it. Under this body of law, the theoretical possibility that survivors might call for help is not a justification for attacking them.
Arizona Democratic Senator Mark Kelly—Navy combat pilot, astronaut, and one of Congress’s most credible voices on military professionalism—put the point in blunt personal terms: “Pete Hegseth is not a serious person. He should have never been put in this job. I think he is the least qualified Secretary of Defense in the history of our country, by far.” Coming from someone who has flown combat missions, it reads not as rhetoric but as a professional assessment of a breakdown in leadership.
It is against that backdrop that the six Democratic lawmakers’ recent 40-second video should be understood. In calm, precise terms, they reminded service members that lawful orders must be obeyed and patently unlawful ones refused. They did not attack the mission or the president’s authority; they merely stated the rule every officer learns in training. Their message tracked the very legal constraints the administration itself invokes.
The administration lost no time in attacking the lawmakers. Trump labeled their message “seditious behavior, punishable by death.” Hegseth echoed the president’s intemperate (and inaccurate) charges: “What they did was seditious—an attempt to undermine the chain of command in wartime. That kind of behavior cannot go unpunished.” And then the Pentagon announced it would investigate Kelly (the only one of the six subject to military law as a retired officer) for possible misconduct under the Uniform Code of Military Justice.
The administration now has reportedly directed multiple federal agencies to investigate whether the lawmakers had encouraged insubordination. Even setting aside that the lawmakers’ statements are accurate, the premise that members of Congress can be investigated for stating the law runs directly counter to the most fundamental tenet of First Amendment law on the books.
The constitutional guardrail here traces back to the Holmes-Brandeis dissent in Abrams v. United States (1919). In that case, the Supreme Court upheld sedition convictions against Russian immigrants who distributed leaflets criticizing U.S. military intervention in Russia. The majority saw danger; Holmes and Brandeis saw protected political speech. Their dissent introduced the principle that speech may be punished only where it presents a “clear and present danger” of causing serious, imminent harm—a foundation later refined into the “imminent lawless action” test in the 1969 holding in Brandenberg v. Ohio. Under that doctrine, the lawmakers’ video isn’t close to the line. It is protected political speech in its purest form.
But an even deeper problem lies beneath the surface. Modern First Amendment law recognizes that the government can violate the Constitution not only by prosecuting speech but by investigating it. Investigations impose stigma, chill future expression, and signal that certain viewpoints will draw state scrutiny. That is why the Supreme Court in the 1957 case Watkins v. United States cautioned that investigative power is “not unlimited,” and it’s why courts have scrutinized government surveillance and information gathering directed at political or religious advocacy even absent prosecutions.
When a government faces credible allegations of unlawful force and responds not with transparency but with investigations into those who restated the law, something fundamental has gone wrong. Indeed, it’s apparent that’s the reason for the FBI visits. The “evidence” of sedition, such as it is, is the tape itself; the visits chiefly carry the administration’s message of intimidation.
And it’s an all too familiar—and invariably regretted—story in American constitutional life. 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.
Which is why the administration’s reaction to the Trinidad allegations is so troubling. If the reporting is accurate, U.S. forces may have crossed a bright legal line. The lawmakers who said so were correct on the law. And the administration’s choice to investigate them instead of the underlying conduct is precisely the reflex that the First Amendment exists to restrain.
If it comes to subpoenas or compelled interviews, the answer should be straightforward: Members of Congress do not owe the executive branch their time or their testimony when the only thing they are being questioned about is protected political speech. They should be able to move the court to quash any subpoena and tell the FBI, politely but firmly, to take a hike. The Constitution gives them that right, and the country needs them to exercise it.
