Rachel Abrams (3:16)

So explain that for a second, Charlie. Why is it that this is now producing this kind of bipartisan outrage?

Charlie Savage (3:25)

So to understand that, I think you have to work through the administration's explanation of what it's doing. The administration has put forward a legal theory that this is an armed conflict. This is a war that Trump has decided we're at war, even though Congress has not authorized one, a war with drug cartels, and that the people on the boat smuggling these drugs, supposedly for the drug cartels, are not criminals, they are combatants. And a lot of people do not think that is a legitimate interpretation of the law and think this is not an armed conflict. But even if you accept it, under the laws of armed conflict, very explicitly, you cannot fire upon people who are out of the fight, people who have surrendered, people who are incredibly wounded and unable to fight you back, or explicitly, shipwrecked sailors cannot be fired upon. That is a war crime.

Rachel Abrams (4:24)

So based on what you just outlined, this first strike in September that destroys the boat, kills most of the people, but leaves a couple of survivors, that second strike that kills the remaining survivors because of the rules of war about not striking people, that basically pose no imminent threat to you, seems illegal on its face. And that is why this Washington Post story catches everybody's attention. What exactly do we know, though, about what Hegseth did or did not do in relation to that September 2nd strike? Like, what do we know about the order he gave?

Charlie Savage (4:57)

So Hegseth has acknowledged from the beginning that he authorized a lethal strike on this boat. This was not a capture operation. They weren't aiming to disable the engines and then go arrest the guys. The aim was to kill the people on the boat, sink the boat, destroy the purported drugs on the boat. So that's not in dispute. But the question is whether the orders he gave contemplated that the first missile wouldn't accomplish all those things and that there might be shipwrecked survivors, and then if that happened, should they be killed, too? Or was the order silent on that possibility? But whatever was in those orders, we have been told that Hegseth gave no additional instructions to Bradley once the attack commenced. In other words, he didn't see or hear that there were initial survivors and then say something. But this is something Congress needs to figure out. And regardless of what Hegseth said or intended, the next question is, what did Admiral Bradley understand his orders to be is his intent we want to kill those two people? Does he say anything that leaves a contemporaneous record that would explain whether he thought he was specifically trying to kill shipwrecked survivors or was just hitting what he thought was a lawful target? Again, then this starts to get kind of esoteric, because what difference does it make if his intent was to specifically kill these people versus destroy the vessel if the same missile is hitting the same object causing the same damage regardless? And this is part of the reason why trying to apply the laws of armed conflict to this situation starts to become very unsatisfactory. Because these rules are written for naval engagements between warships of nation states that have guns, they're flying colors. And if a ship wants to surrender, it can lower its colors and stop firing its guns and then it's out of the fight. But this is not a warship. This is a speedboat that may or may not be carrying an illicit consumer product.

Rachel Abrams (7:28)

So basically what you're saying is that if the intent here from Bradley was to simply kill the two remaining survivors, it would be really pretty clear cut what he had done and whether it was legal in terms of the laws of war. But if he was aiming to sink the boat or destroy the drugs, which was also part of the initial mandate and order from Hegseth, that's where it gets a bit murkier. Right?

Charlie Savage (7:55)

That's where it gets murkier. Of course, even for that initial order to be lawful, this has to be an armed conflict, which very, very few people outside of the administration think it is. And so if it's not an armed conflict, the first missile was murder, the second missile was murder. They were all unlawful.

Rachel Abrams (8:14)

How has the administration responded so far?

Charlie Savage (8:17)

The administration as a whole has defended the entire operation. It is stressed that Hegseth did not specifically order the killing of the two initial survivors and has suggested that that is a misinterpretation of what happened. Nevertheless, it has defended the actions of Admiral Bradley in ordering the follow up strike, insisting it was lawful. And that's the administration as a whole that said very interestingly, on Sunday night.

Rachel Abrams (8:51)

If there were a second strike that.

Charlie Savage (8:54)

Killed wounded people, President Trump was asked about this by reporters and he distanced himself from the second strike. But no, I wouldn't have wanted that. Not a second strike. The first strike was very lethal. It was fine if there were two people around, but Pete said that didn't happen.

Rachel Abrams (9:12)

Does that make you feel.

Charlie Savage (9:12)

I have great confidence he said the first one was fine, including the fact that it was lethal. But he wouldn't have wanted the second one. Why not? The suggestion is he has some kind of discomfort with that follow up strike.

Rachel Abrams (9:26)

This all makes me wonder how this sort of thing would normally work. Like the legality of these strikes in this kind of detail is the thing at issue. And so I'm curious about who is advising the people involved, like Commander Bradley or Pete Hegseth, about what is legal and what is not in the moment.

Charlie Savage (9:44)

Well, the way it's supposed to work is the military commanders at each level of the chain are supposed to have staff Judge Advocate general officers, JAGs, who are advising them about the laws of war and what would cross the line. And Ptegseth has a general counsel and is part of an administration that is advised by the Justice Department. But one of the things we know about this operation as it was getting put together in July, August, early September leading up to this initial attack, is that the deliberations were very closely held and that few career military lawyers were allowed into the room. There weren't a lot of lawyers, uniform lawyers, non politically appointed lawyers being allowed into the deliberations. Pete Hegseth comes up as a platoon leader in war, not a senior commander, and he seems to have acquired a hostility towards the idea of military lawyers. He talks about them as JAG offs. In his memoir, he seems to blame them for rules of engagement that he found to be unduly restrictive about when his troops could open fire on someone they saw as a threat. And he seems to misunderstand that the jags are not the ones setting those rules, the commanders are. And he acquires from that this hostility. And the first thing he does is he fires the top jags of the services. You know, he's been trying to replace them with not career active duty JAGs that have come up through the JAG Corps, but with National Guardsmen who are sort of more political officials coming out of states.

Rachel Abrams (11:46)

So, Charlie, what would the legal rationale be for Bradley to order that second strike? Like, what would that be based on?

Charlie Savage (11:53)

It's hard to answer, not knowing the details of the sort of questions that we've been talking about that remain fuzzy. And one of the issues here that listeners ought to understand is that we now know that behind the scenes, a couple days after this strike, the Justice Department's Office of Legal Counsel, which is a very powerful node in the executive branch legal system, produced or signed a memoir that said it accepted Trump's determination that this is an armed conflict against these drug cartels and that all this stuff was lawful. And part of the public justification of all this has been, how is it that the cartels are attacking us? They're not attacking us. They're selling an illicit consumer product. That's bad, but it's not an armed attack on us. And the rhetorical justification has been, yes, but tens of thousands of Americans are dying from overdoses each year, and that's equivalent to an attack. So once it's an armed conflict, you can hit the boat. Supposedly. One of the things that this memo says that is different than the public rhetoric the administration has been putting forward is that the drugs, the purported cargo on these boats, is a lawful military target. Why? Because the drug cartels could sell those drugs, they could get the profits and spend them on military equipment to sustain their supposed war efforts against the United States. And so part of this murkiness around what is the reason the US Fires on this boat in the first instance, keeps firing on it until everyone is dead, then the boat is at the bottom of the ocean. Is, was the target of those follow up strikes? Especially was it the drugs? Was it the boat, or was it the people? Was it all of them in some confusing way?

Rachel Abrams (13:55)

Because if Commander Bradley did that second strike in order to target the drugs on the boat and the killing of the two survivors was collateral damage, then theoretically that could be a defense under what the DOJ laid out as kosher, right?

Charlie Savage (14:10)

Yes. Admiral Bradley is in a much stronger position if that's what he says and if there's contemporaneous evidence backing him up. Again, though, only if you accept in the first place that this is an armed conflict and this is the right lens to be bringing to bear on this at all. Because if it's not, they didn't have a right to kill the people in the first place.

Rachel Abrams (14:31)

It sounds like there are compelling reasons why the killing of the survivors of that initial strike could be a war crime if the intent was to kill them, which we do not know. And in fact, there is so much that we don't know that we cannot say it sounds like anything definitively. And because of that, I am reminded of the video that those six Democratic lawmakers released a couple weeks ago which urged service members to ignore illegal orders. Given everything that we've discussed, how are service members supposed to understand what is legal and what is not?

Charlie Savage (15:06)

It is an extremely difficult dilemma when you're faced with a commander in chief who's issuing orders backed by a Justice Department memo that very few people outside of the current executive branch of government think holds water. What are soldiers supposed to do.

Rachel Abrams (15:26)

Right. And just to be clear, when the lawmakers made that video, were they aware of any of this? Were they talking about this?

Charlie Savage (15:34)

So one of the interesting things about that video from those lawmakers who are all military intelligence veterans, telling soldiers you should not obey illegal orders is they don't say what illegal orders they have in mind. So one of the complaints actually by the Trump administration of what are you talking about? Are you saying we've given illegal orders? Which ones? And, you know, it could be something about the fact that Trump has been deploying troops into cities and some of them are acting kind of like police officers. It could be this boats operation. But the Trump administration responds very fiercely to that video and calls them insurrectionists and opens investigations of them for daring to say this thing, which is actually just illegal truism. And that, I think, is a contributing factor to why, as the country's attention is returned to legal controversies surrounding Trump's killing of people on these boats, the reaction has been more fierce now than in September, when it was still kind of a new thing that people were trying to wrap their heads around. And this legal cloud has been apparent since early September. And Congress, controlled by the Republican Party, has not been particularly interested in performing much oversight until now. And so as this effort unfolds in coming days and weeks, it will be interesting to see how broad the focus is, what questions lawmakers ask and what information they're able to extract.

Rachel Abrams (17:31)

We'll be right back.

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Rachel Abrams (19:13)

Sold. Charlie, before the break, you told us about these congressional calls for investigation. What might that look like if it happened? And what power does Congress actually have.

Charlie Savage (19:25)

Here? So now that some Republicans on the Armed Services Committees appear to be interested in getting some answers, at least about this second missile strike, in this first attack, Congress is therefore awakening. We do not know at this stage how far this oversight effort will go. It could be very searching, it could be very limited. And all that is going to depend on the appetite of Republicans to make life uncomfortable for the Trump administration, which as any observer of politics knows, is not something that is easy for them to do. If they really want to get to the bottom of this, they have a number of things they can ask for and demand and push the limits to try to get. Such as they can call witnesses and have them give sworn testimony. Hegseth Obviously, Admiral Bradley, obviously there are things they could ask for as well. The administration has released, as we know, this sort of 30 second edited surveillance clip that doesn't show the follow up strikes. It doesn't show people surviving the first attack, but they've, you know, they've got that video. In fact, the New York Times has filed a lawsuit for the unedited video of that strike. Congress also could demand that video. A retired very senior JAG told me that one of the questions that could maybe be parsed through actual evidence is what kind of missile was it that was fired at the boat the second time? Because they can be configured to be anti personnel or anti material, anti personnel missile can produce a lot of shrapnel to try to kill people as opposed to one that's trying to produce a big hole in a large object. So which kind did they shoot and did they have the other kind available? These are all the kinds of sort of evidentiary questions that if you're really drilling down into the nuances of these nitty gritty things of what was said and done at each moment, what was the intent, what was the understanding Congress could demand and then see if the Trump administration is willing to turn.

Rachel Abrams (21:50)

Over. I just want to understand what Congress can actually do here and what these investigations could even amount to. So hypothetically, if Congress determines that the military broke the law, what.

Charlie Savage (22:03)

Then? So obviously Congress itself is a political body and it performs oversight and it appropriates funds and it passes laws. It doesn't prosecute people. So it's not its job to bring charges against anyone. Sure, it could cut off funds to the military for further boat strikes if it had the political will, meaning majority votes, to do that in future appropriations bills. It could refuse to confirm Trump appointees until the administration stops doing this thing it hypothetically thinks it ought to stop doing. You know, ultimately, in theory, it could impeach Trump and remove him from office, but we all know as a matter of political reality that that's unlikely to happen. Even if Democrats retake control of one or both chambers, they won't have the two thirds necessary to convict in the.

Rachel Abrams (22:55)

Senate. What about that DOJ memo that we were talking about, though? Like, if the military broke the law, but they didn't go outside of the bounds of what that memo authorized, is anybody vulnerable to any.

Charlie Savage (23:06)

Consequences? So what you're asking about now is if someone broke the law here, whether it's the entire operation or just this follow up missile strike, is there a place where theoretically someone could be charged, let's say, with murder or a war crime down the road? And the answer to that is it's very difficult to see where that could happen. The fact is that right now, while these actions are happening, the Justice Department's official position is this is lawful and that you can't prosecute someone just for doing anything that you yourself, that is the Justice Department, said was lawful at the time. They're relying on your assurances. You can't bait and switch people. This is a matter of due process. And so this OLC memo, the Justice Department memo, a former head of OLC who teaches at Harvard now named Jack Goldsmith, has famously called them get out of jail free cards, golden shields. You can just write down some nonsense on a piece of paper on OLC letterhead, and suddenly people are free to do whatever that memo says. And there's just not really a check on that. It's just the way the system is.

Rachel Abrams (24:19)

Structured. I just want to pause here because what you're saying is kind of remarkable. I mean, you cannot write a contract, for instance, and have two parties sign it. That breaks the law and say, well, we have a contract. What you are saying is that if the DOJ writes a memo and says that something is lawful, that protects anybody carrying out orders within the bounds of that memo, even if by any other analysis, those actions are determined to be illegal. Just the fact that that memo exists, it sounds like protects people from prosecution, domestic federal.

Charlie Savage (24:49)

Prosecution. That's Right. This is the power of the Office of Legal Counsel within the Justice Department. And we saw an earlier round of this 20 years ago when after 9 11, the Bush administration had in its Office of Legal Counsel a lawyer named John Yoo, who had a idiosyncratically broad view of executive power that most people thought was wrong. And under his view, the President could authorize anything he thought was necessary to protect national security. Things like wiretapping without warrants, torturing prisoners. These memos are later rescinded, but they were there while this stuff was happening. And when Eric Holder, the liberal Attorney General under Barack Obama, comes in in 2009 in, opens a criminal investigation into the treatment of detainees by the CIA under the Bush administration because of this problem of the OLC's assurances at the time, he says, we are only going to look at actions that went beyond the guidance that was blessed by the olc. So the OLC said, you can waterboard people and you waterboarded people, even as everyone else says drowning people is torture and it's illegal. OLC said it was, okay, we're not going to prosecute you for that. Now the catch, of course, and this is where we circle back to this conversation about the second strike, is the memo says, apparently because this is supposedly an armed conflict, strikes that comport with the law of war, the law of armed conflict are.

Rachel Abrams (26:31)

Permissible.

Charlie Savage (26:31)

Right. The second missile strike in the first attack, which kills the shipwrecked survivors of the first missile strike, arguably does not comport with the law of armed conflict. And so that's one place where this particular strike, as opposed to all the others, might be more vulnerable to later legal scrutiny, because especially if there's evidence that Admiral Bradley's specific intent was to target the still living crew members as opposed to the boat or the supposed cargo. That's a point where despite the OLC memo, you could see a later prosecutor, I guess this would be in the court martial system were there the political will to do so. Taking a hard look at that.

Rachel Abrams (27:22)

Right. Basically, if the intent was to kill the survivors of that first strike, it arguably would be outside the bounds of that memo and outside the bounds of what is considered legal warfare. So therefore the people who launch that strike potentially could be prosecuted potentially.

Charlie Savage (27:38)

Down the road if there's no sweeping preemptive pardon. Now, of course, there's also international law. There is a court in the Hague, in the Netherlands called the International Criminal Court, and it exists as a standing court to prosecute war crimes, crimes against humanity, genocide, and I should note.

Rachel Abrams (28:01)

That we are not a party to the International Criminal.

Charlie Savage (28:03)

Court. We are not a party. The countries of Venezuela and Colombia, among others, are parties. And so there are circumstances in which, in theory, American officials could be prosecuted in the Hague for actions, let's say, inside Venezuela against Venezuelans in the same way. Right now, the court in the Hague has an arrest warrant for Vladimir Putin, even though Russia is not a member of the treaty that creates the court for his actions in Ukraine, because Ukraine is a member. But these boats attacks are, for now at least, all in international waters. And these boats are not flying, as far as we know or have seen on the videos, any country's flag. They're not registered to Venezuela or Colombia. They're just little boats. They're not ships. And so without being registered to a country, without being in the country's territory, there's no jurisdiction for the International Criminal Court over these attacks. So nothing for now, unless this operation spreads to Venezuela, as it might. But for now, nothing on these attacks, including the Sept. 2 attack, would come before the International Criminal.

Rachel Abrams (29:20)

Court. Charlie, our conversation today was prompted by, as we discussed, more scrutiny about the second strike on that first boat and whether that violates the rules of armed conflict. But our conversation was not prompted by the question of whether the entire operation to fire on these boats is illegal. Right. And I am curious, as somebody who has been following every turn of this story and is a national security expert, what do you think about this focus very specifically on the second.

Charlie Savage (29:52)

Strike? So on the one hand, it is good that people are paying attention. We're seeing congressional oversight committees swinging into action, asking hard questions. We'll see how committed they remain to, you know, getting the answers. But it looks kind of like the way congressional oversight is supposed to function, and people are interested in something that is objectively very important. On the other hand, the questions of who said what, when, with what intent, and with what interpretation about the second strike are very narrow. Once you start really drilling down on it in a way that is arguably distracting from the broader issue that has been apparent from the beginning and is not limited to the second missile strike, but to all the missile strikes, the United States is engaged in an extraordinary, legally edgy, to say the least, operation with literally deadly consequences. And the broader issue of is this an armed conflict, is this a war at all? Hangs over the entire thing. And if it's not a war, if it's not an armed conflict, even if Trump says he's determined that it is one, then it's not just those two deaths from that second missile on September 2nd that are at issue. There have been 21 boat strikes, 83 people have been killed. And if it's not an armed conflict, then all 83 of those killings were arguably just.

Rachel Abrams (31:51)

Murder. Charlie Savage, thank you so.

Charlie Savage (31:56)

Much. Thank.

Rachel Abrams (31:57)

You. Foreign. Defense Secretary Pete Hegseth said that he had watched the September 2nd operation live on video, but said that he, quote, didn't stick around to see the second.

Charlie Savage (32:16)

Strike. So you didn't see any survivors? To be clear, after the first strike, I did not personally see survivors, but I stand because the thing was on fire. It was exploded and fire, smoke, you can't see.

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Charlie Savage (32:30)

Digital. This is called the fog of war. This is what you and the press don't.

Rachel Abrams (32:34)

Understand. Hegseth also stood by Admiral Frank Bradley's decision to order the second.

Charlie Savage (32:40)

Strike. And by the way, Admiral Bradley made the correct decision to ultimately sink the boat and eliminate the threat. He sunk the boat. Sunk the boat and.

Rachel Abrams (32:50)

Eliminated. We'll be right.

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Rachel Abrams (34:25)

Stops. Here's what else you need to know.

Charlie Savage (34:29)

Today. I don't want them in our country. I'll be honest with you. Okay, somebody say, oh, that's not politically correct. I don't.

Rachel Abrams (34:36)

Care. President Trump unleashed a xenophobic tirade against Somali immigrants on Tuesday, and we're.

Charlie Savage (34:44)

Going to go the wrong way if we keep taking in garbage into our.

Rachel Abrams (34:46)

Country. Elon it was an outburst that captured the raw nativism that has animated his approach to immigration and they complain.

Charlie Savage (34:56)

And do nothing but bitch. We don't want them in our country. Let them go back to where they came from and fix.

Rachel Abrams (35:04)

It. The administration has focused on a recent investigation into fraud within the Somali community in Minnesota, where federal prosecutors charged dozens of people with felonies, including accusations that people stole hundreds of millions of dollars from a government program meant to keep children fed during the COVID 19 pandemic. And Matt Van Epps, a Republican, former state official and army veteran, won a special election for the House on Tuesday in Tennessee, holding off a surprisingly stiff Democratic challenge in an overwhelmingly Republican district that drew a flood of national attention and money. The result is a boon in the short term for President Trump and the Republican Party, which had worried that its narrow House majority would grow even slimmer. But the relatively tight margin in a deep red district still represents a warning shot about the party's vulnerabilities ahead of next year's midterms. Today's episode was produced by Rob Zipko and Jessica Chung. It was edited by Liz o' Ballin and Paige Cowett, contains music by Alicia Beitup and Diane Wong, and was engineered by Alyssa Moxley. Special thanks to Julian Barnes. That's it for the Daily I'm Rachel Abrams. See you.

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