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In the week since The Washington Post reported that Pete Hegseth had authorized killing the shipwrecked survivors of a boat strike in the Caribbean, numerous Democrats (and even a few Republicans) have warned that the SecDef may have committed a war crime. As military and international law experts have pointed out, the Defense Department’s own manual for the law of war points to killing the shipwrecked as its specific example of an illegal order. “It’s one of the shining red lines in the law of war,” said an expert in international law, who didn’t want to be named for fear of retribution from the White House. “There is no way to defend killing shipwrecked survivors. They literally write this very example into the Uniform Code of Military Justice.”

Hegseth, for his part, has pointed his finger directly at Admiral Frank Bradley, who led the Joint Special Operations Command strike on September 2. Hegseth first told Fox he watched the strike live, then said he’d left the room after the first strike took out the boat and wasn’t there for the double tap that killed the two survivors. Today, Bradley headed to the Hill, where he was expected to tell concerned chairs and ranking members of the Intelligence and Armed Services committees that the two survivors were not technically shipwrecked because they were radioing to another suspected drug boat for help, with the aim of continuing their narcotics run. (Afterward, Sen. Tom Cotton, Republican of Arkansas, claimed that Bradley said Hegseth had not given an order to “kill everybody,” as the Post had reported, and Sean Parnell, the Pentagon’s spokesman, tweeted that the story was a “hoax” and demanded that the paper retract it.)

Senator Angus King, the Maine independent who sits on both the Intel and Armed Services committees, told me that “the idea that they were going to call someone to come and help them … strains credulity.” Even if they were radioing for help, he continued, “they were hors de combat”—the legal term for someone who has been taken out of combat, whether because they’ve been injured, taken prisoner, or, well, shipwrecked.

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King also said he was disturbed by the way Hegseth and President Trump played up Bradley’s role, even while saying they supported his decision. “That was code for throwing him under the bus,” King said. “Hegseth basically offloaded the responsibility onto the admiral, knowing that it’s very likely a war crime. But we have your back! That’s not very reassuring if I were the admiral. Or to any officer in the military.”

Indeed, King said, the lethal strike on the survivors underscored the very point that Senators Mark Kelly and Elissa Slotkin, along with four other military veterans in the House, were attempting to make when they released a video exhorting members of the military to disobey illegal orders. (The six members of Congress, who were simply stating the law, so rankled the president that he called the video “seditious behavior, punishable by death!”) “What Nuremberg established was that ‘I was just following orders’ is not a defense,” King said, referring to Nazis’ famously failed attempt to avoid responsibility for war crimes before the International Military Tribunal in 1946. “If you’re a military officer and you receive an illegal order and you carry it out, you yourself are responsible,” said King. Even if the president and his “Secretary of War” say they support you.

The fact that Hegseth immediately attributed the second-strike decision to the officer in charge, rather than taking responsibility himself, has also rankled the military community. “Not great,” one senior defense official told me of the general feeling about it. Still, the buck does stop with Bradley as much as with Hegseth, according to specialists in military law. As the three-star admiral and top military commander for the operation, Bradley was at the very top end of the “kill chain” and thereby tasked with implementing the civilian leadership’s commands. “He had the ultimate duty to say ‘no’ and not do this,” said Rachel VanLandingham, a law professor and retired Air Force judge advocate. “That’s what he gets paid for.”

An order like “kill everybody” would have been a “no quarter order,” explicitly illegal under international and American law. Someone of Bradley’s rank would know the legal implications, since he graduated from the Naval Academy, served for over three decades, and received all the advanced education that a flag officer gets on the way up. “Kill them all” would have been exactly the kind of directive to make a three-star say, “‘Wait a minute, there’s no such thing as ‘no quarter,’” one retired Marine judge advocate said. “And that requires a set of balls, because the next thing that might happen is you’re fired and the secretary says, ‘Who’s the next man up?’ That’s a risk. And if you don’t like that risk, don’t take the job, Admiral.”

But unlike Senator King, both retired judge advocates expressed frustration with the six lawmakers who called on servicemembers to disobey illegal orders in general. In the U.S. military, they explained, the starting assumption is that every order is legal—and the burden of proof is on the dissenting servicemember at their court martial. “It’s equivalent to a felony trial,” the retired Marine judge advocate said. “You have to be willing to disobey on principle, and you have to be able to withstand the pressure of the entire Defense Department. It creates a powerful incentive for obedience.”

It should be easier for someone like Bradley, a senior leader, to stand up and endure that kind of pressure if an illegal order had been issued. “The military rank and file are between a rock and a hard place,” said VanLandingham. “Sure, they could disobey, but they do so at their own peril. You lose your friends, your paycheck, your career, your wife, or your husband.” This could well apply to the person who launched the missile or pilots the drone. “The responsibility doesn’t legally increase as you go up in rank, but your should-know increases exponentially,” VanLandingham said.

Military personnel involved in such a strike, for example, would also have been bound by the Justice Department’s Office of Legal Counsel, which outlined the legal rationale for conducting the boat strikes in a still-secret memo. “Those are given the force of law inside the executive branch,” said the retired Marine judge advocate. “It’s practically given as much weight as a judicial decision. People have to be entitled to rely on that. If you’re a tactical unit commander and you’ve received your order, you kind of have to assume that it’s gone through the wickets and that the policy stuff has been worked out.”

That was the view I encountered across the board. The most-senior officers—people like Bradley and Admiral Alvin Holsey, who reportedly resigned in October over disagreements with Hegseth regarding the boat strikes, though the Pentagon has denied he had reservations—are best positioned both to know better and to object to illegal orders. “In my view, your obligation becomes more obvious the more senior you are,” said the retired Marine judge advocate. “If you’re a four-star or a three-star, you have to be as concerned about the legality and policy wiseness of strikes as the SecDef. The more junior you are, the more patently illegal it has to be for you to disobey an order.” But given what we know so far, the retired Marine judge advocate added, “That’s probably pretty damn patent.”

To those who specialize in the laws of war or have in any way followed Hegseth’s career, the events of the last week have hardly been a surprise. In his capacity as a Fox host, Hegseth successfully lobbied Trump during his first administration to pardon several military officers credibly accused of war crimes. He has described the rules of engagement as “stupid” and international law as “hopelessly outdated.”

Hegseth’s view channels a longstanding frustration within the MAGA base and in some corners of the U.S. military, especially the special operations community. In their view, rules of engagement and laws of war constrict the American warfighter in an asymmetrical conflict with a modern enemy that doesn’t play by the rules—employing suicide bombers, human shields, blending into civilian populations. They see the restrictions as outdated measures that led directly to America losing the wars in Iraq and Afghanistan. “Hegseth has sent all kinds of signals over the years that we would come to this moment,” the international law expert told me. “Whether or not he gave an order, he’s set the stage,” said VanLandingham.

During Hegseth’s confirmation hearing in January, Senator King had pressed him on whether American troops have to follow the Geneva Conventions. Hegseth repeatedly ducked the question, but King told me he pursued the line of inquiry because Hegseth’s 2024 book, The War on Warriors, had been far more explicit. “Should we follow the Geneva Conventions?” he wrote. “What if we treated the enemy the way they treated us? Would that be an incentive for the other side to reconsider their barbarism? Hey, Al Qaeda: If you surrender, we might spare your life. If you do not, we will rip your arms off and feed them to hogs.” The only way that Americans can win, Hegseth opined, is for the military to be totally unshackled from legal constraints. “They need to be the most ruthless,” he wrote. “The most uncompromising. The most overwhelmingly lethal as they can be.”

Of course, Hegseth’s view isn’t just contrary to international law; it’s at odds with American law, too. Despite his characterization of these laws as a globalist scam foisted on the boys from Kentucky and Tennessee, the first code that bound American soldiers originated here, in the U.S., during the Civil War. And as much as they restrict the American warfighter, they were also designed to protect them. “The Geneva Convention and the laws of war aren’t there to be generous or nice,” King reminded me. “They’re there to protect our own troops.” Moreover, under Title 18—that is, American law—Hegseth could be liable for war crimes, even as a civilian.

King said he was, sadly, unsurprised by Hegseth’s position, given what he’d written about war crimes before being confirmed to his current post. “What he wrote in those pages was, to me, a clear disdain for the Geneva Convention and a disdain for any kind of constraint on conduct of war,” the senator told me. “And here we are. I must say I was worried about his position generally, and it turns out I was correct.”

That’s all from me, friends. I’ll see you back here next week. Until then, good night. Tomorrow will be worse.

Julia

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