OPINION: Shedding light on legality of Carribean killings

Idaho's Senator Jim Risch proclaimed in a Dec. 11 meeting of the Senate Foreign Relations Committee that the “attacks in the Caribbean are absolutely, totally and 100% legal under U.S. law and international law.” Those strikes have produced a body count nearing 100 since Sept. 2. Oregon Senator Jeff Merkley effectively debunked Risch’s argument, pointing out that only Congress has the power to declare war under the U.S. Constitution. Risch incorrectly claimed that the killings were "clearly not a war, but kinetic action,” as though that somehow got around the Constitution. His response makes no sense because the violence of war is always kinetic action.

There is no need to get into the legal weeds about the legality of Trump's Caribbean killings because their unlawfulness has been well established in the last three months. Even the DOD’s new AI chatbox, which Pete Hegseth proudly announced on Dec. 9, said that an order to kill two survivors of a boat strike would be “an unambiguously illegal order.”

During the Vietnam War, I spent hundreds of hours flying over the jungle as an artillery spotter in a small two-seater “bird dog” aircraft. I could call deadly artillery fire upon practically any suspected enemy in certain “free fire zones.” Those were defined areas from which the South Vietnamese government had removed all civilians. Nevertheless, the rules of engagement prohibited firing upon civilians and I would not have done it anyway. If there was any uncertainty as to whether a person was hostile, we did not fire.

Had I been overhead for any of the Trump/Hegseth strikes, I would not have pulled the trigger — no declared war, no enemy combatants, clearly civilians and no justification for “kinetic action.” The proper course of action would be to call the U.S. Coast Guard to interdict and search the boats, like they have historically done. Last year, the Coast Guard seized 225 metric tons of cocaine. The U.S. would have to destroy a heck of a lot of narco speed boats to equal that tonnage.

These present boat strikes have a feature that was not in existence back in Vietnam days. Then, artillery spotters and their pilots were the only people who knew the situation on the ground. We were largely on the honor system in deciding who should live or die. Now military personnel up and down the ladder may have eyes on the situation. Not only that, but a video record is being made of each strike. Any person who sees a strike being carried out and does not raise concerns about its legality may be called to account, even years later.

Keep in mind that both Trump and Hegseth have gleefully announced the strikes and vowed to kill all other alleged “narco-terrorists.” They might be surprised to learn that several victims of the Sept. 2 strike were not drug merchants. The U.S. Supreme Court essentially immunized Trump against any kind of charges that could result from the strikes, but Hegseth and the military personnel with eyes-on participation in the strikes could find themselves in legal hot water down the road for these summary executions.

Senator Risch should study the law and avoid covering up for MAGA lawbreakers.

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Jim Jones is a Vietnam combat veteran who served 8 years as Idaho Attorney General (1983-1991) and 12 years as Justice of the Idaho Supreme Court (2005-2017). He also publishes at substack.com/@jjcommontater