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This is an adapted excerpt from the Dec. 6 episode of “Velshi.”
Was it a war crime, or wasn’t it? That’s the question at the heart of the latest scandal involving Defense Secretary Pete Hegseth, the man handpicked by Donald Trump to run his rechristened “Department of War.”
But before we get there, it’s worth zooming out for a moment.
From upending the economy and declaring war on American cities to weaponizing the legal system against critics and mostly failing, this administration’s approach seems anchored in unleashing unspeakable harm and chaos in service of feeding Trump’s ego, expanding executive power and distracting from a historically unpopular presidency.
It doesn’t matter whether the survivors on those boats were civilians, combatants or criminals.
This approach comes straight out of the Center for Renewing America, a right-wing think tank launched in 2021 to help prepare for a second Trump presidency. It was founded by Russell Vought, who you’ll recall is the architect of Project 2025 and Trump’s current director of the Office of Management and Budget, an incredibly powerful perch from which to oversee the deployment of that agenda.
Many of the leaders and senior fellows of the Center for Renewing America now serve inside Trump’s Cabinet, including Vought himself and FBI Director Kash Patel. It was that think tank that first drafted ideas like invoking the Insurrection Act against U.S. cities, firing civil servants en masse and dismantling internal legal constraints.
In a private 2024 speech, Vought said he didn’t “want President Trump having to lose a moment of time having fights in the Oval Office about whether something is legal or doable or moral.”
Which brings us to those boat strikes in the Caribbean. For several months, Hegseth has been directing a highly controversial military campaign in the region, without congressional authorization or oversight.
The Pentagon says it is targeting drug-smuggling boats carrying narcotics into the U.S. but has provided no evidence to support those assertions.
Criticism of the campaign escalated after The Washington Post reported that, according to two unnamed people with direct knowledge of the operation, Hegseth issued a verbal order before the very first strike on Sept. 2 to “kill everybody.”
In military parlance, that is a “no quarter” order, an instruction to leave no survivors. If true, a no-quarter order would violate both U.S. military law and international law.
Hegseth, the White House and Adm. Frank Bradley, the commander who oversaw the strikes, have all denied that the defense secretary gave such an order.
Crucially, it doesn’t matter whether the survivors on those boats were civilians, combatants or criminals. The order to kill survivors itself is a war crime if we take the administration at its word that it considers this an armed conflict. But if we aren’t in an armed conflict — which we aren’t — then the killing of the survivors, who would be considered civilians, is murder.
Members of Congress — many of whom were already critical of the broader Caribbean campaign, which seems to be targeting Venezuela more than it’s targeting drugs — have now opened inquiries into what happened that day.
Here’s what we know: On Sept. 2, U.S. forces struck a vessel allegedly involved in drug trafficking. The first strike disabled the boat, leaving survivors clinging to debris. Eleven people were killed in total, including two survivors who died in a follow-up strike, a so-called double tap that may also be considered a war crime under international law.
The Pentagon has carried out 22 strikes in total, killing at least 87 people.
For its part, the Trump administration claims the U.S. is engaged in a “non-international armed conflict,” a designation that matters because such campaigns also require congressional authorization. Under the War Powers Resolution of 1973, the president must consult Congress before introducing U.S. forces into hostilities unless Congress independently formally declares war.
But the administration has attempted to sidestep the law by arguing that the War Powers Resolution applies only when U.S. service members are placed “in harm’s way.” Because the strikes are conducted remotely, they claim, these do not qualify as “hostilities.”
In other words, the administration is saying, “Yes, we are in an armed conflict — but no, we technically haven’t introduced U.S. forces into any ‘hostilities,’ because technology allows us to strike from far away.”
Which effectively means we’re blowing boats out of the water with no evidence and no due process — something most of us have only ever understood to be murder.
In America, we are supposed to prosecute people for their crimes and try them. We are not supposed to kill them indiscriminately. If we tried these alleged drug dealers and found them guilty in a court of law, none of them would face the death penalty.
In what certainly seems like an admission, Trump himself said the quiet part loud back in October: “I think we’re just going to kill people that are bringing drugs into our country. OK? We’re going to kill them, you know, they’re going to be, like, dead.”
And that raises the central legal question: Is the United States actually in an armed conflict with the people on these boats? Or is our government just committing flat-out murder? This matters because two completely different legal frameworks apply, depending on the answer.
Many experts say the administration’s assertion of armed conflict is highly dubious. Under the laws of armed conflict, suspected drug cartels are not “organized armed groups” capable of the sustained, intense hostilities required to trigger international law.
But assume, for argument’s sake, that this is an armed conflict. If so, the laws of war apply, or what’s known as International Humanitarian Law, which clearly prohibits targeting civilians, killing wounded or defenseless survivors, failing to rescue those in distress, and issuing or obeying “no quarter” orders.
Deliberately killing survivors and issuing orders to “kill everybody” are, therefore, war crimes.
Former Defense Secretary Leon Panetta and many military lawyers have called the second strike on Sept. 2 a war crime.
A conflict does not become an ‘armed conflict’ simply because Trump calls it one.
The duty to rescue shipwrecked or wounded survivors is one of the oldest principles of international law. It protects civilians and service members alike, and it has endured because of a norm known as reciprocity: “We protect your survivors; you protect ours.”
The U.S. helped establish this norm during World War II, explicitly rejecting the Japanese navy’s “no survivors” policy and condemning the killing of helpless sailors as inhumane. America’s treatment of survivors in that war would become the foundation for modern maritime law. Crossing this line today endangers U.S. troops and shatters an 80-year framework that keeps them safe.
Now let’s look at the other option: Legally, when there is no armed conflict, then domestic law applies. Under U.S. law, killing people outside of combat without a trial is, quite simply, murder — an extrajudicial killing.
A conflict does not become an “armed conflict” simply because Trump calls it one. To qualify, the opposing forces with which America is in conflict must be an organized armed group engaged in sustained, intense hostilities.
Legal experts overwhelmingly agree: Drug cartels do not meet that standard.
So if this was not an armed conflict — and again, there has been no legal determination that it is part of an armed conflict — the killings instead fall under U.S. criminal law, the Uniform Code of Military Justice and maritime law, which governs peacetime navigation.
The rule in all of them is simple: You cannot kill people — criminals or otherwise — without due process.
Ali Velshi is the host of “Velshi,” which airs Saturdays and Sundays on MSNBC. He has been awarded the National Headliner Award for Business & Consumer Reporting for “How the Wheels Came Off,” a special on the near collapse of the American auto industry. His work on disabled workers and Chicago’s red-light camera scandal in 2016 earned him two News and Documentary Emmy Award nominations, adding to a nomination in 2010 for his terrorism coverage.
