The following is a lightly edited transcript of the December 9 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
Pete Hegseth’s defense of the killing of two men clinging to an incapacitated boat is falling apart on multiple fronts. Lawmakers who saw a video of this killing have shared damning details about what they witnessed, and were now learning that the boat very well might not have been bound for the United States to begin with. All this comes as some Republicans appear to be quietly moving away from defending Hegseth on this. And there are increasing signs that this video may actually end up getting released, which would almost certainly wreck Hegseth’s story even further. We’re working through exactly where we are right now with Tess Bridgeman, co-editor-in-chief of the Just Security website and former national security lawyer on the Obama administration, who’s been doing sharp commentary on all this. Tess, good to have you on.
Tess Bridgeman: Thanks so much for having me.
Sargent: So before we get into the specifics of this latest bombing, let’s remind everybody of this: The United States has killed over 80 people that Trump has designated narcoterrorists, bombing these small boats in the Caribbean Sea on the grounds that by smuggling drugs, the people in them are waging war on the United States. Tess, can you just briefly recap why that’s so depraved and why it’s almost certainly illegal?
Bridgeman: The thing to keep in mind zooming out is that The United States is quite simply not at war. There is no armed conflict going on between the United States and any criminal gang or cartel operating in the Western Hemisphere. Transporting drugs is not an act of war. It’s not a hostile act, and it can’t get you into an armed conflict. So whichever way you go about it, whether you look at the administration’s claim that transporting drugs that end up harming or killing some Americans constitutes an armed attack—that doesn’t hold water.
When you look at the idea that the people on these boats are somehow combatants engaged in hostilities themselves, that also is an absurd reading of the law that no serious expert would countenance. So whichever way you slice it—and they’ve tried to do it a couple of different ways—there’s simply no authority for the United States to be targeting these vessels or the people on them. And that means the law that does apply is domestic criminal law and international human rights law, making these killings murder and extrajudicial killings or summary executions, respectively.
Sargent: And they’re killing people who are civilians. Basically what experts have said is, OK, even if these people are doing bad things by smuggling drugs and doing things that could hurt the United States and hurt Americans, this should be subject to police action and the administration by turning this into a war, sort of reimagining it as a war, is essentially giving President Trump the authority to execute civilians, right?
Bridgeman: That’s right. And I’ve said repeatedly that I think the big story here is exactly what you just said, Greg: that there is underlying this entire campaign a notion that the president can—outside of the law, outside of armed conflict—can simply say, I’m designating these people terrorists, which is just a label, it doesn’t bring any authority with it to use force. Just labeling these people terrorists and asking the military to then kill them on that basis—that has never been done before in the history of the United States.
That is the clean break from the past that should be terrifying and chilling to us all. The idea that the president can misuse the military in this way and has thus far gotten away with it until Congress recently started applying some much-needed pressure—that is something that we should be focused on as the big story. Of course, there are lots of other wrinkles that we can get into, but asking the military to use force outside of the law and the military carrying that campaign out is the bottom line of what’s going on here.
Sargent: Absolutely. So in this particular case, we’re now talking about, on September 2, an initial strike demolished a boat carrying 11 people. Then the live feed showed military officials that two men were alive, clinging to the wrecked boat. They were then killed in a second strike. Generally, it contradicts the laws of war to kill people who are not in the fight, specifically those who are shipwrecked. Tess, again, understanding that the entire campaign is illegal, can you explain why this latest wrinkle is even worse and might be a war crime?
Bridgeman: Yeah, absolutely. So again, important to start with the premise, as you just said, that the laws of war don’t even apply here. So these aren’t war crimes on their face. They are murder. That applies to the first nine people who were killed on that first September 2 strike. And it applies to the two survivors who were killed in the subsequent strike.
But the big new revelation here is that even operating within this paradigm that the administration has manufactured—this idea that we are in a war based on the fake facts that they have marshaled to try to make it so—it is a textbook example of an unlawful order to order that shipwrecked people be fired on. And it is such a textbook example that it is, in fact, what the Department of Defense’s Law of War Manual uses as their example of a clearly illegal order.
So once it was clear—and it should have been clear as soon as the smoke cleared and you could see two individuals clinging to the wreckage of their burned-out vessel at sea, defenseless—it’s what the term of art in the law of armed conflict context is: hors de combat, which essentially means defenseless. It should have been obvious to anyone seeing that video or who was informed of it in real time that the two survivors clinging to the wreckage of their burned-out vessel were simply defenseless or hors de combat, as it’s considered in the law of armed conflict, which means they posed no threat. And in fact, there was a duty, if feasible, to rescue them.
That’s something that Admiral Mitch Bradley, who was overseeing this operation in his capacity as the JSOC commander, should have known. It’s something his military lawyer should have known and that, quite frankly, should have been clear up and down the chain of command. It’s a 101 example that you might get taught in an ops law class. It’s just something that you do not do.
Sargent: We’re now getting new details about how bad this actually is and how clear-cut it is. Lawmakers viewed the video of the second strike last week, and The New York Times reports that, according to people who saw it, the two men appeared to be waving at something, which indicated to these lawmakers that they were attempting to surrender or beckoning for a rescue.
Now, Tess, some Republicans have offered this ludicrous explanation that these two men could have tried to contact other cartel members or could have continued to deliver drugs. But Representative Adam Smith told me last week that no recording of any radio traffic exists and no drugs were visible in the video. All that aside, if these men were waving, doesn’t that further underscore the idea that they were not in any sense in the fight?
Bridgeman: Absolutely. And again, that’s what should have been crystal clear to anyone who was involved here. First and foremost, though, there was no fight for them to be surrendering from. And that’s why this really horrific set of events clarifies the mind about the broader campaign.
What exactly is it that Admiral Bradley, his lawyer, and those in the chain of command were looking for on that day? Were they looking for them to put down their weapons? Because there’s no allegation they had any to begin with. Were they looking at them to wave a flag of truce or surrender? Well, someone, even if they were trafficking drugs, someone trafficking drugs doesn’t have such a flag.
It’s absurd to think about the scenario through a law of war lens when you’re not at war, but even if you were operating in that paradigm, it is just blatantly obvious that you cannot strike these two survivors. And I think that’s something that congressional oversight will continue to get to the bottom of and will shed light on the broader campaign.
Sargent: Well, it gets even worse. I want to play something that Pete Hegseth said on Saturday. The context here is that Hegseth is recounting that he watched the first strike on the boat, the one that incapacitated it. Listen to this.
Pete Hegseth (voiceover): Later on, couple hours later, I was told, hey, there had to be a re-attack because there were a couple folks that could still be in the fight, access to radios. There was a link up point of another potential boat. Drugs were still there. They were actively interacting with them. Had to take that read. I said, Roger, sounds good. From what I understood then and what I understand now, I fully support that strike.
Sargent: So let’s note what Hegseth actually admitted here. He said that two men, “could still be in the fight.” I think that’s absolutely damning. He didn’t even know that they were in the fight. Tess, doesn’t that undermine their case further?
Bridgeman: Well, the thing to keep in mind here is that there’s absolutely nothing, no set of facts, right, that you could look at that would make these individuals in the fight, right? The fact of radioing for help, for rescue—that certainly doesn’t make a shipwrecked survivor of an attack on their boat “in the fight,” right? The idea that there might have been cocaine in the water—which, by the way, is contradicted by others who saw the video—that certainly wouldn’t make these survivors “in the fight” if there were still packages of cocaine bobbing around in the water. So there’s nothing that they could have been looking for, right, given there’s not even an allegation that these individuals were armed in the first place that could have made it lawful to presume they were still in the fight based on what was being seen on that feed.
Sargent: Well, now there’s the CNN report that Admiral Bradley, who oversaw the operation, told lawmakers in a briefing that this boat was linking up to another vessel headed for Suriname, a small country east of Venezuela. Then, amazingly, the admiral said that the larger vessel could still possibly have gone on to the United States. Tess, again, it’s these same words: “could,” “maybe,” “possibly.” They had no solid evidence of any kind that these men were still in any fight or that the drugs were still on the boat or that the drugs were headed for the U.S. Now, again, putting aside the fact that the entire thing is illegal, this specific case is in total collapse now, no?
Bridgeman: It is, and you know, again, within the paradigm that the law of armed conflict somehow magically applies to this purported criminal activity. What we’re looking at here might be a kind of legal theory that essentially holds that things being sold to finance a war effort are themselves targetable. And that’s known as war-sustaining objects.
That’s a controversial theory on its own, even within the law of armed conflict. But something that’s really important to note is that people transporting war-sustaining objects are not considered fighters. They’re not even considered to be civilians directly participating in hostilities. They are just civilians, full stop.
And that means even if there were drugs that were targetable as war-sustaining objects—which, again, is not the world we’re in because we’re not at war, but even if that were the case—the individuals themselves would not be targetable. And so the fact that they went back and blew up two more people after they had destroyed the boat with the drugs on it, it’s just unconscionable if that’s indeed the theory they were operating under.
Then extend that to the fact that they were simply looking at transporting drugs to another vessel, likely in Suriname, that then was most likely going to Europe. It’s very difficult to wrap your head around the idea that these could represent hostile acts or somehow represent attacks against the United States. So whether you’re looking at it through the war-sustaining objects lens or the idea that this is somehow actually hostilities or actually combat, neither of those is plausible.
Sargent: Well, there are signs that Republicans are quietly starting to move away from Hegseth. Senator Jim Justice says he’s quote-unquote “not comfortable” with the second strike. Representative Don Bacon strongly criticized Hegseth over another scandal involving sensitive information shared by text with a reporter, saying Hegseth’s recent decisions have “ruined his credibility.”
Now we’re learning that lawmakers have quietly inserted a provision into the annual defense bill that withholds one-fourth of Hegseth’s travel budget until unedited video of the strikes—meaning, I guess, all of them, but certainly meaning the one we’re talking about—is released to the House and Senate Armed Services committees. Tess, that would not happen without the quiet acquiescence of Republicans, correct?
Bridgeman: Correct. And that’s what’s been missing to date is some Republican support for basic oversight. And this is really basic oversight. It’s: Can the Armed Services committees view the video that their leadership was already permitted to see in unedited versions?
That should just be the beginning. There need to be subpoenas for witnesses, for documents all up and down the chain of command. I think it’s appropriate that Hegseth is in the hot seat. And this is something that’s going to be less palatable on the Republican side of the aisle. So I don’t think we’re going to see it in the near term, but we need to remember that this whole campaign also goes all the way up to the president. He is who ordered this all starting reportedly in the summer before we started seeing strikes in September. So if starting with Hegseth and starting with the September 2 second strike helps clarify the mind about the illegality of this entire campaign, I think that’s a great place for oversight to start.
If, on the other hand, it sort of shrouds the basic illegality of this entire killing spree, we may have a bigger problem on our hands. So I hope this is the beginning of true bipartisan oversight that gets to the bottom, not just of the September 2 strike, which was so manifestly unlawful that it boggles the mind how anyone in the chain of command could have countenanced it, but hopefully also the broader campaign as a whole that’s killed, I think, 87 people to date.
Sargent: Yes. And I think you do need something as jarring as this second strike killing two very visibly helpless people to kind of pry open the door a little bit, even to getting Republicans on board with some kind of oversight. So let’s look ahead. Are we going to get a full accounting of this? Remember, Democrats may take back the House, so we could see one then. And critically, is anyone going to be held accountable in any sense at the end of the day?
Bridgeman: That’s the question. I think we’ll see this play out in different ways over the short, medium, and long term. I think in the short term, we may get some version of accountability for that second September 2 strike, just through what Congress is now showing signs that it’s willing to look at, which is: Within the parameters even that the executive branch has set out, could this even be lawful?
As we were just discussing, I think that would miss the bigger picture and the need for accountability, especially up to the top for this entire campaign. And if that doesn’t happen, it normalizes the notion that the president can misuse the military by ordering them to use force outside of the law. And that’s why the oversight cannot stop with just that second strike on September 2. It has to go further.
I’m under no illusions that the Trump administration is going to start prosecuting people, let alone Secretary of Defense Hegseth for these crimes, because they are crimes at the end of the day, not war crimes, just regular crimes under U.S. federal law. I do think what we might start seeing over time, though, especially if congressional investigations get more facts brought to light, is we could see more cases brought in international tribunals.
We could see countries that have statutes on the books that let them prosecute particularly serious types of crimes where universal jurisdiction is an avenue. That could mean, for example, Hegseth has to be careful where he travels when he’s no longer in office. And I would hope that in the future, we see a U.S. executive branch that sees fit to hold its own to account. I think that’s what was missing in the post-torture years. And that’s what we need to see now if we ever want to turn the page on the idea that the most powerful people in our government can never be held to account no matter what they do. It should have been the case with torture. It has to be the case for murder.
Sargent: And I want to underscore for people that if you want oversight and accountability, you’re going to have to elect a Democratic House. That’s the only way we’re going to get the extensive oversight you’re talking about. Tess Bridgman, thank you so much for coming on. That is really harrowing stuff, though, I will say.
Bridgeman: It is. I wish we were talking about a different topic, but thanks for breaking it down and it was good to be on.