There is one person who can never face any accountability for the killing of people clinging to an alleged drug boat in the Caribbean in September.
That person is Donald Trump, who as US president was granted broad immunity for official acts by the Supreme Court last year while he is in office.
From there, things get tangled in a complicated bramble of military, civilian and international law.
Does Trump’s immunity for extrajudicial killings transfer down to Secretary of Defense Pete Hegseth, who gave the order to ensure the strike killed everyone on board, but said he did not order the second strike that killed survivors clinging to the boat’s side?
How about Adm. Frank Bradley, who did order the second strike, apparently, after consulting with a lawyer? Or the service members who pushed the button?
Some legal experts view the second strike as murder, but that may not matter, at least not in the short term. While a future Department of Justice or Defense could pursue charges against people involved with the strikes, it defies logic that Trump’s Department of Justice will seek accountability under US law, or that his Department of Defense will seek accountability under military law.
Trump could also always pardon anyone involved with the strikes, conveying his immunity on anyone he likes.
Life imitating a Supreme Court argument
It should be lost on no one that the hypothetical that animated the Supreme Court arguments about Trump’s immunity involved a president ordering SEAL Team Six to take out a political rival.
The Washington Post reports it was SEAL Team Six that carried out the boat strike that many experts say is illegal.
What was not discussed during those Supreme Court arguments is whether SEAL Team Six should carry out an illegal order.
The laws of war do not apply when the US is not at war
One former military lawyer who has been critical of Trump’s alleged drug-boat campaign says the second strike on the boat in September should refocus the debate on the larger issue that the Trump administration is using the military without direct approval from Congress.
“All of this discussion about the laws of war is really misplaced because they don’t apply,” Maj. Gen. Steven Lepper, a retired Air Force lawyer told me.
In his view, the entire use of the military is unlawful since the administration has tried to draw an equivalence that does not exist in US law between drugs entering the US and bullets threatening Americans.
Accountability outside of the justice system
“We have to give a wider view what accountability means,” said Brian Finucane, a senior adviser at the International Crisis Group and a former legal adviser at the State Department.
In the short term, Finucane argued that accountability should come from Congress, which is investigating the strike and he hopes will turn to “forcing the administration to stop this killing spree at sea.”
Another attack was carried out Thursday, according to a social media post by US Southern Command, even as controversy built over the September strike in Washington.
Finucane said in the longer term “the subsequent administration may have the political will to pursue accountability.”
What about military law?
The military justice system has been built around the chain of command, where commanders are an essential part of the process to bring charges when military law is broken.
Any sort of court martial against a top officer like Bradley would be decided by a jury of fellow top officers.
That assumes a case would ever be initiated. Military justice cases are started by what’s known as a “convening authority,” which is usually a commander. But recent changes to the system – enacted to make it possible to take sexual abuse claims out of the chain of command – now also allow military lawyers, special trial counsel, to bring charges.
All of that is an extremely remote possibility at the moment.
What about international law?
A Colombian family has lodged a complaint with the Inter-American Commission on Human Rights (IACHR), which could ultimately lead to reparations for the death of Colombian fisherman Alejandro Carranza.
The US has a history of shutting down any international accountability for it or its allies. But no war has been declared, which means members of the US military could even conceivably be subject to the laws of other countries.
The specifics of who ordered a second strike on the first targeted boat in September have dominated the news this week.
The US military killed the people while carrying out orders Hegseth to destroy the alleged drug boat. The overall strategy had the blessing of blessing of Trump, although both he and Hegseth said they did not immediately know about the second strike.
What about international court?
There is an International Criminal Court in the Hague, for instance, to prosecute war crimes. The international court is modeled on International Criminal Tribunals set up for genocides in Rwanda and the former Yugoslavia. But the US is notably not a party to the organization.
Bill Clinton did sign the Rome Statue, the agreement that set up the International Criminal Court, as a lame duck president in December of 2000. But the treaty was never ratified by the Senate. And in fact, there is a US law, signed in 2002 by President George W. Bush, that seeks to shield American service members from detention or prosecution by the court. The US actually abstains from certain UN peacekeeping operations as a result of this law.
Other major powers, including China and Russia, are also not parties to the court or, as with Russia, have withdrawn.
That does not mean the court won’t bring charges against people from those countries. The ICC issued an arrest warrant for Russian President Vladimir Putin, and another Russian in 2023, over Russia’s scheme to indoctrinate Ukrainian children.
The Trump administration has taken an even more adversarial position toward the ICC. Trump in August authorized sanctions and visa restrictions against members of the court after the ICC launched a probe of alleged war crimes committed by US and Afghan forces and the CIA in Afghanistan. Trump and his administration oppose ICC arrest warrants issued for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant.
What about the laws of other countries?
Italy in 2009 convicted nearly two dozen suspected CIA operatives for the alleged 2003 abduction, or rendition, of a terror suspect from the streets of Milan. The Americans did not serve time and effectively became fugitives in Italy, but it did not affect relations between the two countries.
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