The Wheels on the Bus Go Round and Round
It seemed inevitable that President Trump’s comments Sunday night disavowing the second Sept 2. strike, which killed two survivors of one of his lawless high seas attacks on alleged drug-smuggling boats, would ultimately lead to him scapegoating the military. But things moved quicker yesterday on this front than I might have imagined.
In an important acknowledgment, White House press secretary Karoline Leavitt confirmed that a second strike targeting the two survivors took place. But on behalf of the president she threw Admiral Frank “Mitch” Bradley, commander of the Special Operations command, under the bus for the double-tap Seal Team 6 strike, while still insisting that he was “within his authority and the law.”
“Her scripted remarks at a news briefing elicited a furious backlash within the Defense Department,” the WaPo reported, “where officials described feeling angry at the uncertainty over whether [Defense Secretary Pete] Hegseth would take responsibility for his alleged role in the operation — or leave the military and civilian staff under him to face the consequences.
In a social media post, Hegseth similarly underbussed Bradley by wrapping him in a bear hug of blame: “Admiral Mitch Bradley is an American hero, a true professional, and has my 100% support. I stand by him and the combat decisions he has made — on the September 2 mission and all others since.”
The precise contours of the Trump administration’s defense of the president and Pentagon chief are still emerging, but it appears to ride on a fine distinction between the general order Hegseth gave for the attack and the specific order Bradley gave for the second strike that killed the survivors of the first strike. It’s abundantly unclear whether the facts support such a distinction — or if the distinction changes the legal analysis that both strikes were unlawful.
New reporting from the NYT offered some very thinly sliced details from five anonymous U.S. officials:
- There wasn’t a single second strike but “several follow-up strikes.”
- Hegseth issued only a written order for the attack, not a verbal order as the original WaPo story reported.
- The military intercepted radio communications from one of the survivors to what one official said were narco-traffickers.
Bradley is expected to brief lawmakers in a classified session this week.
Perhaps complicating matters, a Defense Department official told the WSJ that Hegseth was the “target engagement authority,” the key figure who authorized the strike. Further complicating Hegseth’s attempt to distance himself, he boasted on Fox News the day after the attack that he had “watched it live”:
The Sheer Lawlessness
Some deeper dives on the laws of armed conflict, military attacks on civilians, and governing U.S. laws:
- Former Navy JAG Todd Huntley, to the New Yorker: “Basically, this is the one strike that we know about where even if you accept the Administration’s position that the United States is in an armed conflict with these drug cartels, this would still be unlawful under the laws of armed conflict, because the individuals were out of the fight and shipwrecked, and thus owed protection.”
- Associated Press: “It doesn’t matter whether the U.S. is in ‘armed conflict’ with drug cartels as the Trump administration asserts. Such a fatal second strike would have violated peacetime laws and those governing armed conflict, the experts say.”
- Jack Goldsmith, Harvard law professor and former Office of Legal Counsel head: “[S]urely the warrior ethos, whatever else it means, doesn’t require killing helpless men clinging to the burning wreckage of a blown-up boat.”
- Mark Nevitt at Just Security: “The United States, which has military forces deployed around the globe, cannot build a safer world for its own service members by discarding basic laws of war. History shows that when America blatantly abandons humane norms and the law of war, it ultimately endangers its own people.”
Leave Franklin Out of It
Responding to Defense Secretary Pete Hegseth’s grotesque use of a children’s book character to celebrate the lawless U.S. high seas attacks, the Canadian publisher of the Franklin the Turtle series issued this statement:
Noem Touts New Travel Ban
The Trump administration continues to react to the D.C. shooting of two national guardsmen by an Afghan refugee with a clampdown on avenues of immigration and dehumanizing language toward people of color.
Now, in response to what she calls “foreign invaders,” DHS Secretary Kristi Noem is proposing a new “full travel ban on every damn country that’s been flooding our nation with killers, leeches, and entitlement junkies.” Not at all dehumanizing:
Appeals Court: Habba Not Properly Appointed as USA
A unanimous three-judge panel of the Third Circuit Court of Appeals upheld a lower court ruling that former Trump attorney Alina Habba was not validly appointed as U.S. attorney for New Jersey:
The Retribution: James Comey Edition
The Trump DOJ could present a new indictment of James Comey to a grand jury as soon as this week, CNN reports:
People familiar with the situation inside the Justice Department believe whatever comes next may happen quickly, and that no matter what, prosecutors will likely present new indictments against the former FBI director and New York Attorney General Letitia James to grand juries in the Eastern District of Virginia.
A re-indictment of James has been expected, but the statute of limitations expired on the Comey charges, making it difficult for prosecutors to continue to pursue him unless they can persuade a court of some exception or workaround to the statute of limitations problem.
Interim U.S. Attorney Lindsey Halligan remains in place despite a judge’s ruling last week that she was invalidly appointed, which led to the dismissals of the original Comey and James indictments.
In related news that could make re-prosecuting Comey even more difficult, Columbia University law professor Daniel Richman has filed suit against the government for the return of materials seized from him during the Arctic Haze investigation that now form the basis of the charges against Comey. In the Richman lawsuit, first reported by Anna Bower, he is seeking:
The Retribution: Fani Willis Edition
Buried in a NYT story on the end of the fake electors case in Georgia are two data points on what the Trump DOJ is up to in the state:
- Its investigation of Atlanta District Attorney Fani Willis, who first launched the fake electors prosecution, has issued “several dozen subpoenas,” and the FBI has begun interviewing witnesses. What was previously reported by the NYT as an investigation into a trip Willis took to the Bahamas is now a “wider inquiry” led by Theodore Hertzberg, the U.S. attorney for the Northern District of Georgia.
- Its also continuing to re-litigate Trump’s 2020 loss by “trying to obtain tens of thousands of ballots that were cast in Georgia” in that election.
A Self-Own of Historic Proportions
NYT: The U.S. Is Funding Fewer Grants in Every Area of Science and Medicine
Letter of the Day
A letter to the editor from surgical oncologist Michael Baum, on how Arcadia by Tom Stoppard, who died last week at 88, inspired a valuable new hypothesis on the metastasis of breast cancer:
h/t my former TPM colleague Kate Klonick
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