U.S. drug interdiction on the open seas is a longstanding practice, one most Americans are aware of in passing, if at all. But when the U.S. military fires missiles at small boats in the middle of the ocean—boats that officials say are carrying drugs and might be linked to “narcoterrorism”—suddenly there are headlines and questions. After the story flashed across the news, the administration used official language to try to make the strikes sound clean, decisive, and unquestionably lawful. But when you look beneath the surface, as Americans have been doing recently, the picture changes. These operations, which at best occupy a legal gray zone, look more alarming the closer they are examined.
The defensibility of these strikes is questionable under international law, domestic law, and even the U.S. military’s own rules of engagement. And if we’re not actually in a non-international armed conflict, on a war footing—and there is a powerful argument that we are not—then the government does not have wartime authority to extrajudicially kill people on these boats. Drug trafficking is not a death-penalty-eligible offense under U.S. law.
At that point, the question shifts from “Is this a legal strike?” to something far more serious: If this isn’t war, what is it? And who will be held accountable?
The legality of these strikes is shaky at best
Drug trafficking—even organized, violent trafficking—is not considered an armed attack under any recognized legal standard. The 2001 Authorization for Use of Military Force, a joint resolution passed by Congress after the 9/11 attacks that gives presidents broad authority to use military force against those responsible (al-Qaeda and the Taliban) and organizations that harbor them, has provided the legal basis for counterterrorism operations globally ever since. But Congress has repeatedly declined to expand it to cover drug cartels and narcotics networks.
Despite this, some lawmakers have defended the strikes with sweeping certainty. Arkansas Republican Senator Tom Cotton argued: “The first strike, the second strike, and the third and the fourth strike on Sept. 2 were entirely lawful and needful, and they were exactly what we would expect our military commanders to do.” Senator Cotton’s perspective demonstrates the political divide on this issue, with Democrats equally vehement that the strikes were out of bounds—but it does not erase the underlying legal problem: there is no clear authority permitting the government to kill people suspected of criminal activity simply because they are on the water. Calling it warfare doesn’t change that.
We’re not in a war—or a “non-international armed conflict”—with drug cartels. Absent that, the laws of armed conflict don’t apply. Sporadic violence doesn’t qualify, and neither does criminal activity or a blind assertion of “national security concerns.” A real, ongoing, organized conflict between the U.S. and another armed group would be required to convert this situation to a qualifying non-international armed conflict and that simply isn’t the status of U.S. interactions with drug cartels.
This is why lawmakers across the aisle have raised alarm. Arizona Democratic Senator Mark Kelly put it bluntly: “If that is true, if what has been reported is accurate, I’ve got serious concerns about anybody in that chain of command stepping over a line that they should never step over. We are not Russia. We’re not Iraq.” His comment captures the core issue: acting in this fashion outside the boundaries of war risks crossing into conduct associated with authoritarian regimes, not democracies governed by law.
Even if we were at war, the “second tap” violates clear rules
For argument’s sake, let’s accept that the government can somehow claim an armed conflict exists (even though it can’t). Even if that were the case, firing repeatedly at survivors of an initial attack—the so-called “second tap”—is almost certainly illegal. These are people who are shipwrecked. Possibly injured. Clinging to the wreckage of their boats. Not a threat to the United States.
International law aggressively protects the wounded and shipwrecked. You cannot target people trying to escape a sinking vessel. You cannot target rescuers. You cannot fire again at survivors to finish the job. The Department of Defense Law of War Manual provides that members of the armed forces “must refuse to comply with clearly illegal orders to commit law of war violations.” It offers an example of a clearly illegal order that hits home: “For example, orders to fire upon the shipwrecked would be clearly illegal.”
When congressional leaders viewed the classified video footage, they were visibly shaken. Connecticut Democratic Representative Jim Himes described it this way: “What I saw in that room was one of the most troubling things I’ve seen in my time in public service.” His reaction underscores the moral and legal gravity of what appears to have occurred. Even in war, the “second tap” would violate bedrock humanitarian rules. Outside of war, it is morally reprehensible.
If we’re not at war, these killings are just that—killings, murders.
Without a legally recognized armed conflict, the U.S. government has no authority to kill suspected criminals at sea. There is no wartime shield. No combatant-status argument. No battlefield justification. There is no fog of war, as Secretary Hegseth would have it.
Under our criminal laws, the intentional killing of another person without legal authority is murder. Under international human-rights law, it is an extrajudicial killing—a serious violation of the right to life.
There is no legal loophole that magically converts missile strikes on suspected smugglers into lawful acts of self-defense or national security. Drug smuggling is not a death penalty-eligible offense. Our government routinely uses the Coast Guard and other federal agents to interdict drug trafficking and to arrest and place into federal custody traffickers, who face trial in our criminal courts and according to constitutional standards and due process. We do not kill suspected drug traffickers. But it’s possible that none of this will matter given the current administration and if Congress chooses not to act.
Where does accountability come from?
At this point, some people seem to think an international tribunal will step in. That’s unlikely. The U.S. is not a party to the International Criminal Court. Even if it were, most of these incidents fall outside the ICC’s jurisdiction.
Domestically, the current Department of Justice is unlikely to prosecute cabinet officials or military officers for actions carried out under presidential authority.
Recognizing this, as soon as reporting about the attack that included the second tap was out–even though it was Black Friday–lawmakers called for congressional action. Senate Armed Services Committee Chair Roger Wicker, a Mississippi Republican, issued a joint statement with the Committee’s top Democrat, Jack Reed of Rhode Island, vowing “vigorous oversight” of Hegseth’s order. They wrote, “The Committee has directed inquiries to the Department, and we will be conducting vigorous oversight to determine the facts related to the circumstances.” Senate Majority Leader Chuck Schumer echoed the concern, focusing on Secretary Hegseth’s refusal to provide full information: “What we need right now more than anything else is the truth and the facts, which is precisely what Secretary Hegseth has refused to give.”
The comments reflect a simple truth: the courts are not going to create accountability. Congress is the best institution for the job. But even as high-ranking military officials circulated on Capitol Hill last week to discuss what happened, the parties seemed to be re-coalescing along tribal lines. Republicans were satisfied with the answers they’d heard privately. Democrats were not.
If accountability happens at all here, it will be because voters demand it and refuse to relent. With legal action off the table, accountability must come in the form of political accountability. Congress has the power and the responsibility to investigate the strikes, subpoena documents, take testimony from military and civilian officials, and demand answers. In the Signalgate investigation, the Defense Secretary refused to sit for a personal interview. Congress should not similarly take no for an answer. It is the last safeguard. And Congress acts these days only when there is sustained insistence from voters.
In this case, political accountability may be the only accountability we have.
