Judge Andrew Napolitano: Hegseth’s Order to Kill Boat Survivors Could Constitute a War Crime

Judge Andrew Napolitano, a senior judicial analyst, said on Tuesday that Defense Secretary Pete Hegseth could be subject to prosecution for a war crime after ordering the killing of everyone aboard an alleged drug-smuggling vessel in early September.

Legal criticism and calls for transparency

Anchor Shaun Kraisman introduced the discussion by noting that officials maintain the operation was lawful and intended to curb drug trafficking. Napolitano responded that the administration should disclose the specific legal rationale the president is relying on, saying an asserted Justice Department opinion has not been made public for review.

Accusation of a war crime

Napolitano — who said he had worked with Hegseth for several years and stated he regrets the sharp criticism — called the alleged order “an act of a war crime.” He argued that, under the law of armed conflict and the Uniform Code of Military Justice, survivors of an attack must be rescued, not killed.

“Everybody along the line who did it, from the Secretary of Defense to the admiral to the people who actually pulled the trigger should be prosecuted for a war crime for killing these two people.”

When asked who would bring such prosecutions, Napolitano said military authorities would handle court-martial proceedings for active-duty personnel, though the Secretary of Defense would not himself be tried in a military court. He predicted that congressional inquiries by both parties were likely.

Disputed explanations and self-defense claim

Napolitano criticized what he described as shifting official explanations — an initial denial, followed by acknowledgment that Hegseth ordered the strike, and a later claim that the action was taken in self-defense. A clip cited in the discussion quoted White House press secretary Karoline Leavitt as saying the strike was conducted "in self-defense to protect Americans and vital United States interests" and that it occurred "in international waters and in accordance with the law of armed conflict."

“The law of armed conflict says survivors have to be rescued. They can’t be killed. That’s very clear. It’s in the Uniform Code of Military Justice, and it’s in federal law.”

On the label “narco-terrorist” and use of force

Napolitano argued that the term "narco-terrorist" is political rather than a standalone legal justification for lethal military force. He said military force is lawful only when those targeted are engaged in violence or pose an immediate violent threat. He also questioned the plausibility of an alleged vessel some 1,500 miles from the United States posing an immediate threat capable of reaching the U.S.

The exchange concluded with both participants acknowledging the seriousness of the accusation and the likelihood that investigations by military authorities and Congress will follow as more information becomes available.