Did the U.S. commit a war crime in the Caribbean?

0:00Hey there, it's Mary Louise Kelly. A quick word before we start the show. Tomorrow is a special day at NPR. It's Giving Tuesday, the global day of generosity that NPR celebrates every year. but we have never had a year quite like this one before. Public media is navigating a new chapter without federal funding. That means NPR is now operating without federal support for the first time in our history. That history is more than 50 years. It's a big change and a big challenge, but it is one we can overcome together. You count on Consider This to help you make sense of the day's major news stories.

0:38We take the time to go beyond the headlines, provide more context. So you have a better understanding of what is going on in the U.S. and around the world. We are so grateful to those of you who have already stepped up to donate and support this work. People like Megan from Maryland, who says, NPR podcasts are my main source for news. I know that if it is not on Up First or Consider This, I probably don't need to know it. Well said, Megan. I will throw in sources and methods if I may. That's the weekly national security podcast I host. If you have already given this share, if you are already an NPR Plus supporter, thank you.

1:17If not, make your Giving Tuesday gift right now and join us on the Plus side. NPR Plus is a simple, recurring donation that gets you perks to NPR's podcasts, and you'll be supporting public media while you listen. Sign up at plus.npr.org. Now to Monday's episode.

1:43Republicans have spent much of this year deferring to President Trump. Could the strikes on the suspected drug smuggling boats in the Caribbean change that? Here's the latest. We know that on September 2nd, the U.S. carried out two strikes on an alleged drug boat, a first strike, and then a subsequent strike that killed the two remaining survivors. During a press briefing on Monday, White House Press Secretary Caroline Levitt said that Defense Secretary Pete Hegseth authorized Navy Admiral Frank Bradley to conduct the second strike. Admiral Bradley worked well within his authority and the law, directing the engagement to ensure the boat was destroyed and the threat to the United States of America was eliminated.

2:25The so-called double tap attack was first reported by The Washington Post. I don't know anything about it. He said he did not say that, and I believe him 100%. That's Trump speaking to reporters on Sunday. When asked if he would have wanted a second strike, the president said... We'll look into it. But no, I wouldn't have wanted that, not a second strike. The first strike was very lethal. Secretary Hegseth posted on X that the campaign in the Caribbean is, quote, lawful under both U.S. and international law. Senator Mark Wayne Mullen, Republican, on the Armed Services Committee, defended Hegseth.

3:04Here's Senator Mullen on CNN. These individuals don't care about the lives of our friends and families. Why do we care if we take them out in international water? It is a war because they've declared war on our streets, and the president and Secretary Hegseth is doing exactly what we should be doing, being proactive against our enemies. But other lawmakers want answers. Republican Congressman Don Bacon of Nebraska told ABC News. We should get to the truth. I don't think he would be foolish enough to make this decision to say kill everybody, kill the survivors, because that's a clear violation of the law of war.

3:41Senator Mark Kelly, Democrat from Arizona, he is Bacon's counterpart on the Senate Armed Services Committee. He said the committee will investigate military officials and put them under oath. Here's Senator Kelly speaking on CNN. 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. Consider this. As President Trump has ramped up pressure on Venezuela, members of Congress are ramping up questions on whether his defense secretary's actions are legal. Is the U.S. committing war crimes in the Caribbean?

4:32From NPR, I'm Mary Louise Kelly.

4:42It's Consider This from NPR. Congress is charged with providing oversight to all the nooks and crannies of the executive branch, whether that's the Treasury Department or Health and Human Services or the Defense Department. And in recent days, several members of Congress have said they're planning more aggressive oversight of what the Trump administration says is a fight against narco-terrorism in the Caribbean. One of the members of Congress asking questions, Democratic Senator Tim Kaine of Virginia. Senator, welcome. Mayor Louise, glad to talk today. How clear are you on details of what exactly happened with the second strike killing two people who had initially survived?

5:24Mayor Louise, it's very murky. I think up here, I'm on the two most relevant committees, Armed Services and Foreign Relations, and we're very, very troubled. And it's a bipartisan concern about the reporting of the second strike that killed these survivors. And so there are many, many unanswered questions. There is a video of these strikes. It sounds like you haven't seen it. I have not seen the video. That's correct. You've asked to see it? I've asked a whole series of questions that I have not gotten answers to. I asked a series of questions in a letter dated September 10, and most of my questions have not been answered.

6:03If this September 2nd, if the first and second strikes happened, as the Washington Post has reported it, as NPR and others have confirmed, would it be illegal? Would it be a war crime? Well, on the legality, Mary Louise, let's start with the first strike. I have maintained since these strikes began that there's no legal authorization for them. And I have reviewed the Office of Legal Counsel, classified opinion, setting out a legal rationale, because it's classified, I can't discuss its contents. But I can say I found it completely unpersuasive that this mission is lawful at all. But on to the second strike.

6:45Set aside the first strike, whether these missions are legally authorized. The second strike, if you go after survivors of an attack and you kill them, that is a clear violation of both DOD law of war manual and international conventions about the treatment of wounded combatants. And so if the reporting is correct, that on orders from the Secretary of Defense, a strike was made to kill the survivors of this first attack. If that reporting is correct, it's a war crime under both American law and international law. And just to be as clear as we can be with, as we're acknowledging, limited data, we haven't seen this video of what actually happened, but the importance of it being a second strike.

7:33I mean, if the U.S. has made a decision, an order has been given, attack this boat, kill everybody on it. The detail of the second strike is because they survived. You're supposed to, what, take them prisoner of war, give them some opportunity to plead their case? Yes, you're supposed to take them prisoner, and then you decide. I mean, here's another fact that a lot of folks have a question on. There was a subsequent strike where there were survivors, one Colombian and one Ecuadorian. The administration picked them up and then return them to Colombia or Ecuador. If they were narco-traffickers, why weren't they arrested?

8:11Why weren't they put on trial or pressured to reveal their higher-ups? Why were they sent back to Colombia and Ecuador where they were released back into the civilian population? That fact on a subsequent strike raises real questions about whether we're even striking combatants or whether we're striking people claiming that they're narco-traffickers when they're actually not. So, again, the administration is defending these strikes as they are legal. The Defense Secretary, Pete Hegseth, has said the intent of these strikes, I'm quoting a post he put up on X, the intent of the strikes is to stop lethal drugs, destroy narco boats and kill the narco terrorists who are poisoning the American people.

8:53Senator Kaine, what's wrong with that? That would be a great rationale if you presented it to Congress and let Congress vote that we should be at war to do just that. Our Constitution makes very plain that war is initiated by Congress. Once initiated, the president, secretary of defense, and others are the commander-in-chief that implement the initiation of war. But war is not for the president to decide. The framers of our Constitution decided that, Mary Louise, when George Washington was president. They didn't even want George Washington to unilaterally take the nation to war, and they certainly wouldn't want Donald Trump doing it either.

9:33I want to talk about the War Powers Resolution that you are planning to reintroduce. This would require congressional approval for military force in the Caribbean. You did try to get that through this fall. You couldn't get enough of your colleagues to support it. What has changed? Mary Louise, there's two separate resolutions. They're very closely related. One deals with boat strikes in international waters in the Caribbean and the Pacific. And you're right. We filed that. Adam Schiff was the lead sponsor. I was his co-sponsor. We got two Republican votes. We needed at least four. I then led a similar resolution, no war in Venezuela or against Venezuela without congressional approval.

10:13We got two Republicans. we needed at least four. Both of those resolutions, though, were voted on for a lot of the subsequent developments. So with the Venezuela situation, the amassing of troops around Venezuela, the president closing the airspace, announcing that he's authorized covert operations, this has escalated dramatically. And similarly, the strikes in the Caribbean and Pacific, including with the revelation about the second strike, the retirement, the early retirement of the South commander, the decision by the U.K. to stop sharing intelligence with us. Congress needs to assert control here.

10:54Virginia Democrat Tim Kaine, as you heard, he sits on the Senate Armed Services and Foreign Affairs Committee. Senator, thank you. You bet. This episode was produced by Vincent Acavino and Karen Zamora. It was edited by Patrick Jaron-Wadananan and Courtney Dornan. Our executive producer is Sammy Yenigan.

11:17It's Consider This from NPR. I'm Mary Louise Kelly.