ISSE comments on Former JAGs Working Group statement on September 2, 2025 lethal strikes
On November 29, 2025, the Former JAGs Working Group, which issued a statement concerning the lethal strikes taken by the US Military on September 2, 2025, against a civilian boat allegedly carrying narcotics. The statement, which is linked here, is unequivocal in its conclusion that if the second strike, which targeted two survivors of the initial strike, occurred as was reported by both the Washington Post and CNN, then the giving and execution of the order to kill the survivors constituted a war crime, murder, or both.
The Former JAGs Working Group was established in February 2025 after Secretary of Defense Pete Hegseth fired the Judge Advocate Generals of both the Air Force and the Army and took other steps to dismantle the legal guardrails that ensure that the US military acts in accordance with established Rules of Engagement and the Law of Armed Conflict (LOAC).
From the point of view of ISSE, the September 2 strike that reportedly killed eleven civilians, and subsequent strikes against civilian boats that are reported to have killed over seventy additional civilians, are connected to, and logically flow from, the administration's use of emergency powers. On January 20, the administration invoked sections 201 and 301 of the National Emergencies Act to declare an emergency at the southern border of the United States. On the same day, the administration took the unprecedented step of designating eight cartels and drug organizations as Foreign Terrorist Organizations (FTO) under Section 219 of the Immigration and Nationality Act. Designation of an organization as an FTO implicates the Material Support to Terrorism statute found at 18 USC Section 2339(B). Note that most sanctions are imposed under the International Emergency Economic Powers Act (IEEPA); designation under IEEPA permits the US Government, operating through the Department of the Treasury, to impose a wide array of economic sanctions, but does not implicate the Material Support to Terrorism statute.
On March 15, 2025, the President invoked the Alien Enemies Act (AEA), enacted in 1797 in response to a threat from France, for the fourth time in American history. The three previous invocations were during the War of 1812, World War I, and World War II. The invocation was based on the assertion that the Venezuelan drug gang, Tren de Aragua (TdA), acting together with the regime of Venezuelan President Nicolas Maduro, was either invading or engaging in a predatory incursion into the United States. The invocation of the AEA was intended to allow for the immediate apprehension, detention, and deportation of any Venezuelan found in the United States who was not a citizen or permanent resident. Neither the AEA invocation nor the FTO designation authorizes lethal action on their own.
When a declassified intelligence memorandum from the National Intelligence Council (NIC) found that there was no evidence supporting the allegations of a link between Maduro and TdA, DNI Tulsi Gabbard reacted by firing the chair and deputy chair of the NIC. The DNI claimed she was firing these two senior intelligence analysts because they were “politicizing intelligence” by issuing a report that countered the assertions of the President. Note that as of this writing the use of the AEA is being challenged (a Fifth Circuit case) and likely will ultimately be resolved by the U.S. Supreme Court.
Each of these steps relied on existing extraordinary powers to support aggressive unilateral actions by the executive branch. Together they provide the backdrop for the use of the executive branch’s most exceptional power – the power to use the military to kill.
Photo by Sebastian Pichler on Unsplash.
