Defense Secretary Pete Hegseth could face criminal liability for a strike on a boat in the Caribbean in September, legal experts have told TIME, as lawmakers announced a rare bipartisan investigation of the incident in which 11 people were allegedly killed in two separate strikes.
The September 2 strikes, among the first in the Trump Administration’s months-long bombing campaign against what it claims are drug-trafficking boats operating in the Caribbean, were carried out by SEAL Team 6 at the orders of Hegseth, according to a Washington Post investigation.
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“The order was to kill everybody,” a person with direct knowledge of the operation reportedly told the Post, adding that the order was given verbally. In an effort to comply with that order, the commanding officer of the operation directed a second strike targeting two survivors of an initial attack, who were “clinging to the smoldering wreck,” according to the Post.
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Several experts in international law interviewed by TIME said the events as described in the report, if accurate, constitute “murder” and a “war crime” for which Hegseth could be held legally culpable.
“It is absolutely unlawful to order that there will be no survivors,” Rebecca Ingber, professor of law at Cardozo Law School and an expert in international law, tells TIME. “There is no actual armed conflict here, so this is murder.”
“Declaring that there be no survivors or otherwise killing people hors de combat (out of the fight) is a war crime. This is one of the most basic and longstanding rules of LOAC,” she adds, referring to the laws of armed conflict.
Hegseth called the report “fabricated” and a part of a “fake news” campaign to discredit service members in a lengthy response on X, without directly denying that he ordered the strikes.
“As we’ve said from the beginning, and in every statement, these highly effective strikes are specifically intended to be ‘lethal, kinetic strikes,’” he wrote on Friday. “The declared intent is to stop lethal drugs, destroy narco-boats, and kill the narco-terrorists who are poisoning the American people. Every trafficker we kill is affiliated with a Designated Terrorist Organization.”
The Pentagon directed TIME back to Secretary Hegseth’s statement on X when asked for a response to the Post’s claims.
President Donald Trump said late on Sunday that Hegseth had denied giving the order.
“I don’t know anything about it. He said he did not say that, and I believe him, 100 percent,” Trump said aboard Air Force One. Asked whether he would have agreed with the order if Hegseth had given it, Trump replied: “He said he didn’t do it, so I don’t have to make that decision.”
Since the release of the Post report, both the Senate Armed Services Committee and the House Armed Services Committee have announced their intention to investigate the strike in a rare display of bipartisan alignment.
A joint statement from House Armed Services Committee chairman, Rep. Mike Rogers, a Republican from Alabama and Rep. Adam Smith, a Democrat from Washington, said that the committee will take “bipartisan action to gather a full accounting of the operation in question,” while a statement from the Senate Committee vowed “vigorous oversight” to determine what occurred.
‘All of the strikes are illegal’
Laura Dickinson, professor of law at George Washington University and an expert in the law of armed conflict, says that if the report is true, Hegseth could be exposed to criminal liability under the U.S. Uniform Code of Military Justice (UCMJ)—the military’s criminal code that applies to members of the armed forces.
“In an armed conflict, the intentional killing of a protected person—someone who is a civilian or a person who is ‘hors de combat’ because they have laid down their arms or are shipwrecked at sea—is a war crime,” Dickinson says.
Dickinson cites the story of Lt. William Calley, who, during the Vietnam War, commanded his platoon to kill unarmed Vietnamese civilians in what later became known as the My Lai massacre. Calley’s crimes were initially covered up, but he was later convicted of killing 22 civilians.
As the senior official alleged to have issued the order, Hegseth could be held legally responsible for the killing of the two survivors of the initial strike under the UCMJ, according to Dickinson. She notes, however, that the UCMJ would only apply if the United States is considered legally at war with drug traffickers, as the Trump Administration claims it is.
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Dickinson notes that “most experts” do not believe there is an armed conflict between drug traffickers, and as a result, there would be even stricter rules for the use of lethal force.
“If there is no armed conflict, the use of lethal force is only lawful if it is strictly necessary as a last resort, and, if Hegseth gave the orders as reported, those orders would not have been lawful,” she says.
“The U.S. War Crimes Act, which provides jurisdiction in U.S. federal civilian courts for war crimes prosecutions, including those committed by U.S. persons, could also apply.”
Jennifer Trahan, a professor at New York University’s Center for Global Affairs who has served as an advisor to the International Criminal Court (ICC) tells TIME that the United States “is not at war at all, meaning that all of the strikes are illegal—not solely the strike being discussed.”
“Drug trafficking is a crime—and drug traffickers should be charged with a crime, apprehended, and prosecuted,” she says.
The question of whether the U.S. is engaged in an armed conflict with drug traffickers or not could determine how this case, and others surrounding it, are dealt with legally.
Deborah Pearlstein, professor of law and public affairs at Princeton University, also believes that Hegseth could be liable under civilian law.
“Even if the administration is wrong and there’s no ongoing war, Hegseth would be liable under the ordinary federal criminal law prohibiting murder,” she says. “Members of the armed forces are effectively immune from being prosecuted for such laws if there is actually an ‘armed conflict’ on. If not, no such immunity attaches.”
Whether Hegseth is also potentially liable under the UCMJ depends on the details of his status as a former service member, Pearlstein adds.
“Secretaries of Defense are generally not subject to the UCMJ, but Hegseth, as a former service member, may be,” she says. “Even if Hegseth isn’t liable under the UCMJ, any active duty service member who carried out the order to kill the survivors in the water absolutely would be.”
Refusing orders
Pearlstein and Dickinson also note service members’ responsibility to refuse orders that are clearly illegal.
“The Department of Defense Law of War Manual states that an order to kill shipwrecked persons is so clearly illegal that service members have a duty to disobey such orders,” Dickinson says.
In an interview with Kristin Welker on Meet the Press, Senator Mark Kelly—a veteran and former astronaut currently being targeted by the Trump Administration for a video telling service members not to follow orders that are illegal—was asked whether he was calling on military personnel to actively “disobey” orders like those Hegseth allegedly gave.
“If orders are illegal, not only do they not have to follow them, they are legally required not to follow them,” Kelly told Welker.