<\/p>\n
Two men clung<\/span> to what remained of their capsized boat. One moment, they had been cutting through the warm waters of the Caribbean Sea at a rapid clip. The next, their vessel exploded and was engulfed in fire and shrouded in smoke<\/a>. The men were shipwrecked, helpless or clearly in distress, six witnesses who saw video of the attack say. The survivors pulled themselves onto the overturned hull as an American aircraft filmed them from above. The men waved their arms.<\/p>\n Minutes ticked by. Ten. Twenty. Thirty. As the men bobbed along, drifting with the current, for some 45 minutes<\/a>, Adm. Frank Bradley \u2014 then the head of Joint Special Operations Command \u2014 sought guidance from his top legal adviser. At Fort Bragg, North Carolina, on September 2, he turned to Col. Cara Hamaguchi, the staff judge advocate at the secretive JSOC, The Intercept has learned.<\/p>\n Could the U.S. military legally attack them again?<\/p>\n How exactly she responded is not known. But Bradley, according to a lawmaker who spoke on the condition of anonymity to discuss a classified briefing, said that the JSOC staff judge advocate deemed a follow-up strike lawful. In the briefing, Bradley said no one in the room voiced objections before the survivors were killed, according to the lawmaker.<\/p>\n Five people familiar with briefings given by Bradley, including the lawmaker who viewed the video, said that, logically, the survivors must have been waving at the U.S. aircraft flying above them. All interpreted the actions of the men as signaling for help, rescue, or surrender.<\/p>\n \u201cObviously, we don\u2019t know what they were saying or thinking,\u201d one of the sources said, \u201cbut any reasonable person would assume that they saw the aircraft and were signaling either: don\u2019t shoot or help us.\u201d <\/p>\n Raising both hands is a universal sign of surrender<\/a> for isolated members of armed forces. Under international law, those who surrender \u2014 like those who are shipwrecked<\/a> \u2013 are considered hors de combat<\/a>, the French term for those out of combat, and may not be attacked. The Pentagon\u2019s Law of War Manual is explicit in this regard. \u201cPersons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack,\u201d reads <\/a>the guide.<\/p>\n But that\u2019s not how Bradley \u2014 now the chief of Special Operations Command, or SOCOM \u2014 saw it. Bradley declined to comment to The Intercept, but a U.S. official familiar with his thinking said he did not perceive their waving to be a \u201ctwo-arm surrender.\u201d<\/p>\n Some 45 minutes after the men had been plunged into the water, a second missile screamed down from the sky on Bradley\u2019s order<\/a>. Two more missiles followed in rapid succession, sinking the remnants of the boat.<\/p>\n Nothing remained of the men.<\/p>\n Special Operations Command refused to make Hamaguchi available for an interview and declined to answer questions about Hamaguchi\u2019s legal guidance or Bradley\u2019s statements to the member of Congress.<\/p>\n \u201c He did inform them that during the strike he sought advice from his lawyer and then made a decision.\u201d<\/p>\n<\/blockquote>\n<\/figure>\n \u201cWe are not going to comment on what Admiral Bradley told law makers in a classified hearing. He did inform them that during the strike he sought advice from his lawyer and then made a decision,\u201d Col. Allie Weiskopf, the director of public affairs at Special Operations Command, told The Intercept. Multiple military officials attempted to dissuade The Intercept from naming Hamaguchi in this article, citing safety concerns.<\/p>\n Four former judge advocates \u2014 better known in the military as JAGs, as they are lawyers within the judge advocate general\u2019s corps \u2014 blasted the supposed defense that the survivors\u2019 waving hands did not constitute a two-arm surrender. Two used the word \u201cridiculous\u201d to describe it.<\/p>\n \u201cWaving is a way to attract attention. There was no need to kill them,\u201d said Eugene Fidell, who served as a judge advocate in the Coast Guard and is now a senior research scholar at Yale Law School focused on military justice. \u201cWe don\u2019t kill people who are doing this. We should have saved them. None of it makes any sense.\u201d<\/p>\n The lawmaker who watched the video footage of the attack expressed skepticism about the U.S. official\u2019s claim. \u201cMy impression is that these were two shipwrecked individuals,\u201d they said after viewing the video. \u201cI do think at least one of them used two arms.\u201d<\/p>\n <\/p>\n <\/p>\n The Intercept was<\/span> the first outlet to report<\/a> that the U.S. military killed survivors of the September 2 boat strike in a follow-up attack. Since then, questions have swirled around the exact roles of President Donald Trump, Secretary of War Pete Hegseth, and Bradley in the operation, and how they arrived at the conclusion that their monthslong campaign of killings<\/a> in the Caribbean and Pacific is lawful. Military and legal experts have said the strikes are tantamount to murder. But until now, less attention<\/a> has been paid to the legal guidance Bradley sought.<\/p>\n The legal underpinnings for the campaign of extrajudicial killings that have so far taken the lives of at least 105 civilians<\/a> began taking shape over the summer, when Trump signed a secret directive<\/a> ordering the Pentagon to use military force against <\/a>certain Latin American drug cartels.<\/p>\n A classified opinion<\/a> from the Justice Department\u2019s Office of Legal Counsel claims that narcotics on supposed drug boats are lawful military targets because their cargo generates revenue for cartels whom the Trump administration claims are in a \u201cnon-international armed conflict<\/a>\u201d with the United States. Government officials told The Intercept that the memo was not actually signed by Assistant Attorney General T. Elliot Gaiser until days after the September 2 attacks. Attached to that secret memo is a similarly secret list<\/a> of designated terrorist organizations<\/a>, or DTOs, and an annex containing pertinent findings from the U.S. intelligence community.<\/p>\n In August, Hegseth, the \u201ctarget engagement authority,\u201d signed an execute order, or EXORD, directing Special Operations forces to sink suspected drug smuggling boats, destroy their cargo, and kill their crews, according to government officials. Pentagon briefers have told U.S. officials that they do not need to positively identify all of those killed in strikes and only need to show a connection to a DTO or affiliate<\/a>. Those sources say the affiliate label is \u201cquite broad\u201d and some of those killed may have only a tenuous link to a drug smuggling cartel.<\/p>\n Hegseth gave the go-ahead order to Bradley, who presided over the September 2 mission<\/a> from the JSOC joint operations center at Fort Bragg, according to four government sources. Present with him was Hamaguchi and other JSOC personnel, including his top deputies, and specialists in intelligence, targeting, and munitions. \u201cI wish everybody could be in the room watching our professionals \u2026 Adm. Mitch Bradley and others at JSOC. \u2026 The deliberative process, the detail, the rigorous, the intel, the legal \u2026 that make sure that every one of those drug boats is tied to a designated terrorist organization,\u201d said Hegseth later<\/a>.<\/p>\n Before the initial strike, Bradley consulted with Hamaguchi, then gave the order to elite SEAL Team 6 operators to attack the four-engine speedboat, according to government sources. Some 45 minutes after that strike, Bradley issued the order for the follow-up attacks<\/a> after again consulting with Hamaguchi.<\/p>\n Hamaguchi has been present in the JSOC war room for all the boat strikes, unless she delegated to a deputy, according to a SOCOM official. Most of the campaign has been conducted since Lt. Gen. Jonathan Braga<\/a> took command of JSOC in September.<\/p>\n During a recent briefing, Bradley explained that the JSOC staff judge advocate specifically said that the second strike on September 2 was lawful, according to the lawmaker. Bradley said that after initial debate, there was no dissent in the room before the follow-up strike that killed the survivors, that member of Congress told The Intercept.<\/p>\n Trump posted <\/a>edited footage of that strike on his Truth Social account on September 2. He wrote that the attack was conducted \u201con my Orders.\u201d After the killings sparked a congressional firestorm<\/a>, however, Trump and Hegseth distanced themselves from the attack on the survivors. \u201cI wouldn\u2019t have wanted that. Not a second strike,\u201d said <\/a>the president. The war secretary claimed<\/a> that he \u201cdid not personally see survivors\u201d amid the fire and smoke and had left the room before the second attack was ordered.<\/p>\n Bradley apparently has no reservations about having ordered the attacks. \u201cHe\u2019s happy to take responsibility for those decisions,\u201d a SOCOM official told The Intercept.<\/p>\n <\/p>\n\n