Pardons for the Convicted, Drone Strikes for the Suspected
[2]
by Ingrid Burke Friedman, JURIST
This week, President Donald Trump pardoned [3] a man federal prosecutors described as the architect of a "narco-state [4]" who moved 400 tons of cocaine to United States shores. In September, the US military began killing people on Caribbean vessels [5] based on unproven suspicions they were doing the same thing on a far smaller scale. The strikes have drawn allegations of war crimes; the contradiction has drawn bipartisan scrutiny.
Former Honduran president Juan Orlando Hernández walked out [6] of a federal penitentiary in West Virginia on December 2, after Trump issued him a "full and unconditional" pardon [3]. Hernández had been serving a 45-year prison sentence [7] after being convicted in 2024 of facilitating the importation of more than 400 tons of cocaine into the United States over nearly two decades. Then-Attorney General Merrick Garland said at the time that Hernández had "abused his position as President of Honduras to operate the country as a narco-state where violent drug traffickers were allowed to operate with virtual impunity, and the people of Honduras and the United States were forced to suffer the consequences."
Meanwhile, since early September 2025, the US military has conducted a series of more than 20 strikes on vessels in the Caribbean Sea and Eastern Pacific Ocean, killing at least 82 people [8]. The administration alleges these individuals were all trafficking drugs, but without public evidence or judicial process. The legal framework constructed to justify these killings rests on the claim that the US is engaged in an "armed conflict" with drug cartels, rendering suspected smugglers "unlawful combatants" subject to lethal force.
This explainer examines that framework, with particular attention to a September 2 incident that has prompted congressional investigations and accusations that the US military committed war crimes.
Background
In August, the US began amassing troops [9] and warships [10] in the Caribbean, posing the build-up as a counter-narcotics effort. On September 2, the US military launched the first strike in what would come to be known as Operation Southern Spear, [11] killing 11 people in a fishing boat. "There are 11 narco-terrorists at the bottom of the Caribbean right now who found out, at the hands of American power, that you will not be poisoning the American people anymore," Secretary of Defense (or "Secretary of War," as now designated by the Trump administration) Pete Hegseth said [12].
The strikes have escalated steadily. As of the start of December, US forces had conducted 21 kinetic strikes, killing 82, according [8] to the Pentagon. According [10] to analysts at the Center for Strategic and International Studies (CSIS), recent deployments to the Caribbean have included "larger ships, bringing with them immense firepower and other combat capabilities." These include the USS Gerald R. Ford [13], the Navy's most advanced aircraft carrier.
The Administration's Legal Theory
On September 4, Trump informed [14] Congress of the strike, as required by the War Powers Resolution. The letter addressed domestic law by citing his constitutional authority under Article II, and international law by claiming "self defense."
The legal justification for Operation Southern Spear is said to rest on a secret memo reportedly [15] authorizing strikes against cartels beyond those that have been publicly designated as terrorist organizations, and against individuals merely "affiliated" with such groups. The memo was reportedly produced by the Office of Legal Counsel (OLC) within the US Department of Justice (DoJ).
House Judiciary Committee Ranking Member Jamie Raskin described [16] the memo as having given Trump "unchecked power to order military strikes on civilian targets who have unverified ties to 'a secret list of groups.'"
In an October letter demanding the release of the memo, Raskin wrote that media reporting on the memo "raises the alarming prospect that DoJ has authorized the President to order targeted assassinations against anyone he deems an enemy combatant, including individuals located in the United States, without having to provide any evidence or justification to Congress or any federal judge."
The memo has not been released to the public.
On October 9, as reports of the secret memo proliferated, House Judiciary Committee Democrats claimed [17] the president appeared to have relied on a misinterpretation or misapplication of his Article II [18] powers:
There does not appear to be a legal basis for the strikes. The administration has not asked Congress for a declaration of war against any suspected drug cartel or narcotraffickers. It instead appears to have invoked novel and extraordinary emergency wartime powers under Article II. But such powers would require the President to show, at bare minimum, verifiable evidence that his targets are actual enemy combatants. President Trump has not done so. He instead is asking the American people to take his word for it, without presenting any evidence to Congress, to any court, or to the American people. [Emphasis in original.]
The American Civil Liberties Union and the Center for Constitutional Rights pointed out several inconsistencies with the self-defense claims, writing in a joint call for transparency [19] on October 15:
Trump asserted that one such strike was conducted "in self-defense" against "affiliate[s]" of an unidentified "designated terrorist organization" pursuant to the President's "constitutional authority as Commander in Chief" —even though the Department of Defense reportedly was unable to confirm the victims' identities and acknowledged to the Senate Armed Services Committee that the targeted vessel had "turned around" before it was bombed.
The Armed Conflict Threshold
The administration's framework depends entirely on the threshold question of whether the US can lawfully be considered "at war" with drug trafficking organizations.
International humanitarian law recognizes two categories of armed conflict [20]: international [21] armed conflicts between states (governed by the four Geneva Conventions and Additional Protocol I) and non-international armed conflicts [22] within or across state boundaries involving organized armed groups (governed by Common Article 3 and Additional Protocol II).
Legal experts have overwhelmingly rejected the administration's characterization.
Writing in Just Security on December 1, international law scholars Michael Schmitt, Ryan Goodman and Tess Bridgeman argued [23]:
There is no international armed conflict because, inter alia, there are neither hostilities between States nor the requisite degree of State control over alleged drug cartels operating the boats. And there is no non-international armed conflict, both because the cartels concerned do not qualify as organized armed groups in the [law of armed conflict] sense, and because there were no hostilities between the United States and the cartels on [September 2], let alone hostilities that would reach the requisite level of intensity to cross the armed conflict threshold.
Brian Finucane, a former State Department lawyer now with the International Crisis Group, has emphasized that drug cartels lack the military hierarchies and combat capabilities required to constitute organized armed groups under international humanitarian law. As he told [24] CBS News, "They don’t have military hierarchies, don’t have the capability to engage in combat operations, and so it’s absurd to claim that the US is somehow in an armed conflict with them."
Sarah Yager, Washington director of Human Rights Watch, put the matter bluntly: "It's not a question of a war crime because there’s no war, there’s no armed conflict, so it can't be a war crime. It is literally murder."
Protections for the Shipwrecked: Even in War
Even accepting the administration's claim that an armed conflict exists, the September 2 incident raises distinct legal concerns under the laws of war. Article 12 [25] of the Geneva Convention (II), for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, requires that persons "who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances." Article 18 [26] mandates that parties to a conflict "take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care."
Additional Protocol I to the Geneva Conventions is equally explicit. Article 40 [27] states: "It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis." Article 41 [28] provides that persons rendered hors de combat—including those "rendered unconscious or otherwise incapacitated by wounds or sickness"—"shall not be made the object of attack."
The US Defense Department’s own Law of War Manual [29] incorporates these principles. Section 5.9.4 states that "persons 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." The Manual explicitly addresses the imperative of refusing orders to fire upon the shipwrecked, stating in Section 18.3.2.1:
The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal.
The September 2 Incident
The September 2 strike unfolded in two phases. After an initial strike on the vessel killed nine of the 11 people aboard, two survivors were observed clinging to the burning wreckage. Vice Admiral Frank Bradley, then commanding the Joint Special Operations Command, ordered [8] a follow-up strike. Both survivors were killed.
The administration has defended the second strike on the ground that the survivors had radioed [30]for assistance, allegedly communicating with another vessel suspected of involvement in drug trafficking. Hegseth has emphasized his support for Bradley, while also distancing himself from the order, writing [31]: "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."
Legal experts have rejected this reasoning categorically. As the Just Security analysis notes [23], "there is no exception to the prohibition on attacking those who are hors de combat due to being shipwrecked because they might escape or otherwise receive rescue assistance from their forces." The Lieber Institute at West Point, in a pre-existing analysis of the hors de combat standard, emphasizes [32] that the determination turns on whether a person is "incapable of defending himself"—not whether they might theoretically rejoin hostilities in the future.
Congressional Response
The September 2 incident has prompted rare bipartisan oversight activity. The chairs and ranking members of both the House and Senate Armed Services Committees announced [33] investigations immediately following press reports of the second strike. Admiral Bradley and General Dan Caine, Chairman of the Joint Chiefs of Staff, provided classified briefings [34] to congressional leaders on December 4.
Emerging from a House Intelligence Committee briefing, Representative Jim Himes was quoted [35] by CBS as telling reporters: "What I saw in that room was one of the most troubling things I’ve seen in my time in public service… You have two individuals in clear distress without any means of locomotion, with a destroyed vessel, who are killed by the United States." Senator Tim Kaine was quoted by Politico [36] as having said the incident "rises to the level of a war crime if it's true."
Congressional investigators have requested the complete, unedited video footage of the September 2 engagement, the "Strike Bridge" text communications between Admiral Bradley and the SEAL Team 6 operators directing the drone, and the classified OLC opinion. President Trump has stated he would support the release [37] of the video; it remains unclear whether the Pentagon will provide the other materials.
The Hernández Pardon in Context
The administration’s approach to Hernández stands in jarring contrast. In announcing the pardon on November 28, Trump stated [38] that Hernández had been "treated very harshly and unfairly" and that "many people in Honduras" had asked for clemency.
Significantly, Trump's announcement came on the very eve of Honduras' presidential election, in which the US president openly favored [39] conservative candidate Nasry Asfura, who is from the same right-wing National Party as Hernández. Trump denounced Asfura’s main rival, Salvador Nasralla of the centrist Liberal Party, as a "borderline Communist," and threatened to cut off US aid to Honduras if he won. The election was very close and the results are still pending [40], with candidate Rixi Moncada of the incumbent left-wing LIBRE party placing a distant third and eliminated [41] from the running. Unfortunately, there are accusations of irregularities, and great potential for the results to be contested.
Whatever political logic may be at work behind the pardon of Hernández, the contrast with Trump's stance toward Venezuelan leader Nicolás Maduro (who faces trafficking charges in the US, and a $50 million DOJ bounty [42] on his head), is lost on few. Republican Senator Bill Cassidy of Louisiana captured [43] the contradiction: "Why would we pardon this guy then go after Maduro for running drugs into the United States? Lock up every drug runner! Don’t understand why he is being pardoned."
The point applies with equal force to the boat strikes: how can an administration claim authority to execute suspects who do not even face criminal charges, while freeing a convicted trafficker?
Conclusion
The legal framework underlying Operation Southern Spear faces challenges on multiple fronts.
First, many experts reject the foundational claim that the United States can be at war with drug cartels in any legally cognizable sense, meaning the strikes could be interpreted to constitute extrajudicial killings rather than lawful acts of war.
Second, even under the administration's preferred framework, the targeting of shipwrecked survivors violates protections so fundamental that they have been recognized as binding for over a century.
Third, the classified nature of the OLC opinion raises serious questions about democratic accountability for the use of lethal force.
As congressional investigations proceed, the September 2 incident may prove to be a test case for the limits of executive war-making authority, and for the durability of international humanitarian norms that the United States itself helped to establish.
———
This story first appeared Dec. 4 on JURIST [44]. Reprinted with permission.
Image: WeatherWriter via Wikimedia Commons [45]
From our Daily Report:
UN protests as Trump threatens Venezuela
CounterVortex [46], Dec. 3, 2025
Honduras implements 'Crime Solution Plan'
CounterVortex [47], June 20, 2024
Honduras transition in the New Cold War
CounterVortex [48], Dec. 28, 2021
Audio:
Podcast: Trump for War-is-Peace Prize II
CounterVortex [49], Nov. 30, 2025
See also:
SHADOW WAR ON COLOMBIA'S BORDERLANDS
Guerrillas, Smugglers and Militarization on Colombia-Venezuela Frontier
by Joshua Collins, The New Humanitarian
CounterVortex [50], May 2020
U.S. STILL SUPPORTS HONDURAN DEATH SQUADS
by Lauren Carasik, Jurist
CounterVortex [51], May 2013
—————————-
Reprinted by CounterVortex, Dec. 5, 2025
Used with permission.
