Trump administration officials have defended carrying out a follow-up strike on a drug boat that killed survivors on 2 September by arguing that its objective was to ensure the complete destruction of the boat, an action the Pentagon had internal legal approval to conduct.
The White House press secretary Karoline Leavitt said in a briefing on Monday that Adm Frank Bradley, who oversaw the operation and gave the order for the second strike, directed it to sink the boat.
“Adm 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,” Leavitt said.
The defense secretary Pete Hegseth also said for the first time at a cabinet meeting on Tuesday that the second strike “sunk the boat and eliminated the threat” even as he sought to downplay his own involvement.
In framing the strikes as specifically targeting the boat – mirroring the language in a secret justice department office of legal counsel (OLC) memo blessing the strikes – officials technically put the attack on the firmest legal ground since questions surfaced about the incident.
According to three lawyers directly familiar with the matter, the OLC memo says it is permissible for the US to use lethal force against unflagged vessels carrying cocaine since the cartels use the proceeds to fund violence.
The reasoning goes that the cartels are in a so-called “armed conflict” with allies in the region and as part of collective self-defense, the US can destroy the cocaine on the boats to choke off cartels’ money supply to buy weapons.
And perhaps most crucially for the administration, the Guardian previously reported, the OLC memo says the fact that anyone on board would likely die from a strike does not make a boat an improper military target.
The legal analysis is based on US intelligence community findings contained in a classified “statement of facts” annex to the OLC opinion, and in a National Security Presidential Memorandum (NSPM) on using military force against drug cartels dated 25 July.
While the details are not public because the documents, which have not been previously reported, are classified, it is said to include granular details including that each drug boat carries roughly $50m worth of cocaine.
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The OLC memo has been fiercely criticized by outside legal experts given the little public evidence to support the notion that the cartels are using drugs to finance armed violence, rather than the other way around.
Still, the Trump administration’s explanation fits the confines of the OLC memo and provides a plausible legal justification – on which it could rely on to evade any potential congressional or criminal investigation amid calls for increased scrutiny by lawmakers.
It is also likely to be reprised by Bradley, a longtime operator who now heads US special operations command as a three-star admiral, when he appears before top Democrat and Republicans on the House and Senate armed services committees on Thursday morning.
Until this week, Hegseth has been freewheeling about the intention behind the second strike. At various points, he has suggested it was permissible to summarily kill people as long as they were affiliated with cartels.
“Every trafficker we kill is affiliated with a Designated Terrorist Organization,” Hegseth said in an X post on Friday in trying to deflect a Washington Post report he gave an order to kill survivors of a boat strike.
Hegseth later doubled down and posted a parody book cover that portrayed the animated children’s series Franklin the Turtle shooting drug boats from a helicopter with the title “Franklin Targets Narco Terrorists”.
That is not reflected in the OLC memo, which only considered the legality of targeting boats and would be explained by test cases of what the military is allowed to target even under the so called laws of armed conflict.
For instance, a military factory known to be sustaining an army would be generally regarded as legitimate military target. But the workers would be civilians unless they were part of a fighting force – and illegal to kill, one of the experts said.
