“the goal of disrupting and deterring drug smuggling would not justify a policy of summarily executing criminal suspects without statutory authorization or any semblance of due process. That is why Trump is trying to justify his bloodthirsty anti-drug strategy by calling his targets “combatants” in a “non-international armed conflict”—a term he has stretched beyond recognition.
Congress has not recognized that purported “armed conflict,” and it is a counterintuitive label for the unilateral violence exemplified by the September 2 attack. The boat that Bradley destroyed, which reportedly “turned around before the attack started because the people onboard had apparently spotted a military aircraft stalking it,” was not engaged in any sort of attack on American targets and offered no resistance. The same was true of the vessels destroyed in subsequent attacks on suspected drug boats
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The violence in such attacks is so one-sided that the government’s lawyers claim blowing up drug boats does not constitute “hostilities” under the War Powers Resolution because U.S. personnel face no plausible risk of casualties. So we are talking about an “armed conflict” that does not involve “hostilities” yet somehow does involve enemy “combatants.”
Unless you accept that baffling premise, the attempt to justify Bradley’s second strike under the law of war is incomprehensible. “Two U.S. officials have said the military intercepted radio communications from the survivors to suspected cartel members, raising the possibility that any drugs on the boat that had not burned up in the first blast could have been retrieved,” The New York Times reports. “The military, they said, interpreted the purported distress call as meaning the survivors were still ‘in the fight’ and so were not shipwrecked.”
In reality, of course, those men were not “in the fight” to begin with, because there was no “fight.” A unilateral act of aggression by U.S. forces hardly amounts to a battle, and it is hard to see how a radio call for help qualifies as the sort of “hostile act” that the Defense Department’s manual says excludes someone from “shipwrecked” status. To illustrate that exception, the manual notes that “shipwrecked persons do not include combatant personnel engaged in amphibious, underwater, or airborne attacks who are proceeding ashore.””