Scribble

David Rind

00:00:00

Welcome back to one thing. I’m David Rind...and forget war crime...is this a war at all?

Michael Schmitt

00:00:05

I had a major, a major in the army reach out to me just this morning, you know, telling me that she was really struggling because she doesn't want to be a part of a a lawless

David Rind

00:00:19

'Gay. What to make of a follow-up strike on survivors of an alleged drug boat and what could come next in Venezuela? Stick around.

Stefano Pozzebon

00:00:31

'We've just arrived at a rally of Maduro supporters. As usual there is a lot of noise because the government normally puts up massive hi-fi system. And in this case it's a bit surreal that they are playing Christmas music.

David Rind

00:00:51

Stefano Posaban is a CNN contributor. He covers Latin America.

Stefano Pozzebon

00:00:55

A lot of people are government employees. You see some of the militiamen and women

David Rind

00:01:02

He's been coming to Venezuela off and on for the better part of a decade, but he can't remember an assignment quite like this.

Stefano Pozzebon

00:01:09

This time my editor asked me to come when the White House had announced the deployment of the world's largest aircraft carrier, these Gerald Ford, which oddly was in the Croatian Sea. I'm from Italy, so I was spending time with my family in Italy and I laughed at my editor that I could hop up a a ride from the aircraft carrier so that we would be

David Rind

00:01:31

Yeah, you were a following aircraft carrier around the world.

Stefano Pozzebon

00:01:34

It took me a little bit less to to come here by plane and I've been in Caracas since October nineteenth.

David Rind

00:01:40

I want to pause on that for a second. Stefano's been there since October nineteenth. We spoke on December first. Stefano has been there so long because it turns out that aircraft carrier was just the beginning.

Stefano Pozzebon

00:01:54

We're talking about the largest deployment of military might from the states since the Cuban Missile Crisis in in the nineteen sixties. I think our analysts up in DC have told us that almost a fifth of the entire US Navy assets are now surrounding Venezuela. We're talking about more than ten thousand between seamen, US Marines and you have F eighteens, you have B fifty two. Yeah, if you tell me what's changed, is that it's the first time I remember that there are B fifty twos cruising off the coast of Venezuela.

David Rind

00:02:28

'And since September, the US military has also been blowing up boats off the coast of Venezuela. At least eighty-three people have been killed. The Trump administration claims, without provided public evidence, that these boats are trafficking illegal drugs to the US.

President Donald Trump

00:02:44

We are doing these strikes and we're gonna start doing those strikes on land too. You know the land is much easier. It's much easier.

David Rind

00:02:50

Experts in international law find that argument questionable at best. We're going to get to the controversy around one particular strike in a bit. But Stefano says it's clear what this show of force is really about. The Trump administration wants to oust Venezuelan president Nicolas Maduro from power. Remember, Maduro is a brutal strongman that the majority of Venezuelans would probably be thrilled to be rid of. Water cuts and blackouts of regular occurrences there, inflation is through the roof. Just putting food on the table can feel like an impossible, sometimes dangerous proposition. Now, add to that, warplanes and exploding boats, you wouldn't blame people for panicking. But Stefano says that's not the case.

Stefano Pozzebon

00:03:34

'I think what has surprised me is that this hasn't translated into hysteria yet. So people still go on with their day. Yes, they are definitely paying attention. They're definitely very worried about what could happen, especially if this confrontation with Washington leads to an open conflict. But at the same time, there is not really much action that they can put in place to prevent any of these situations to further escalate. So on Monday we went to a Maduro rally in downtown Caracas. I think that the government has tried over the last few days and weeks to give an image of stability, of stillness, of life going on as usual. And in Venezuela, life as usual means that every now and then there is a massive pro-government march.

Stefano Pozzebon

00:04:24

It seems to me that this is an attempt from Nicolas Maduro to rally some sort of support.

Stefano Pozzebon

00:04:32

Today was a bit louder than I was expecting. We're talking about a few thousand people.

Stefano Pozzebon

00:04:36

De los Yankees. No es no estás preocupado a mostrar a mostrar esa franela in in aquí de los yankees.

Stefano Pozzebon

00:04:45

And there was this episode of a a government supporter who showed up to us, his wife or partner, we don't know if they were married, but his partner was shouting Yankee go home, Yankee go home, which is of course a political slogan that is quite popular here in Venezuela if you go to government pro government circles.

Stefano Pozzebon

00:05:02

Pero igual con la franela de los Yankees. Ah, ¿y por qué anda apoyando a los Yankees?

Stefano Pozzebon

00:05:07

And the gentleman was wearing a Yankee a New York Yankees shirt.

David Rind

00:05:10

Oh, the baseball team.

Stefano Pozzebon

00:05:12

A t shirt of the New York Yankees to which I was like, Well, we asked him about it, we interviewed him, his his feelings as soon as we pointed out that he was wearing a a a a red shirt. It was a red t shirt but with a massive Yankee banner.

Rally Atendant

00:05:27

Pero vamos a hacer así. Está bien, oviste.

Stefano Pozzebon

00:05:32

He took the t shirt off and he was wearing a pro government pro Maduro t shirt underneath. I don't know, it kind of reminded me how pervasive the US culture is here in Venezuela. How it's a very strange mix of political confrontation with Washington. But at the same time Venezuelans grew up watching US TV, eating at McDonald's and really drinking out US culture day in and day out. There's a joke that even the Chavistas dream of getting married at Disney World, for example, when they go up to Orlando.

Reporter

00:06:14

Mr. President, on Venezuela, can you tell us more about why the airspace above Venezuela should be considered closed?

President Donald Trump

00:06:20

Because we consider Venezuela to be not a very friendly country, they sent millions

David Rind

00:06:24

Seemingly every day the drums of war get louder and louder, but Stefna says even those Venezuelans who wouldn't be caught dead at a pro Maduro rally aren't exactly cheering on the US pressure campaign.

Stefano Pozzebon

00:06:36

They still don't want to live under Maduro, who's been reeling this country with an iron fist for the last twelve years. But at the same time, they don't want to see their country destroyed by a war similarly to what has happened in Iraq, for example, or Libya. The idea that we're hearing from Washington is that Maduro has to go, and they're not really preoccupied with what happens after the leader has fallen.

David Rind

00:06:59

Yeah, like what what would come next? What what would fill that that spot?

Stefano Pozzebon

00:07:03

That's the question on everyone's mind. The opposition used to have a credible claim to the presidency. They won a election back in July twenty twenty four. However, they do not have any support from the armed forces, which is crucial here in Venezuela. And it's unlikely that anyone is has the capability of filling up Maduro's boots from day one. And that could lead to a situation of anarchy. How that will play out, how that anarchy will play out, is what I think scares the majority of the Venezuelan population, which are not promaduro. Like we should always remind remind ourselves that this government is not popular in Venezuela. However, they are the guarantor of stability right now. And so it's a big jump to the unknown, the idea of this government being removed by force.

David Rind

00:07:56

Well, you mentioned Maduro. There was a rumor, right, over the weekend that he fled the country. Like, do we know where he is?

Stefano Pozzebon

00:08:02

Yeah.

David Rind

00:08:03

Season Krakas.

Stefano Pozzebon

00:08:04

So I actually saw him a couple of hours ago, even less. Okay.

Nicolás Maduro

00:08:08

El pueblo unido jamás será vencido el pueblo.

Stefano Pozzebon

00:08:18

He has no intention of walking away from his country or from the power and he seems like he's gonna stay in and stay put for the long run until the end.

David Rind

00:08:30

So that's what's happening in Venezuela. But what is happening in the waters off the coast has American lawmakers on both sides of the aisle deeply concerned.

Kate Bouldan

00:08:39

Democrats and Republicans now suggesting that American military officials might have committed a war crime in the Caribbean in carrying out President Trump's campaign against alleged drug trafficking boats.

Dana Bash

00:08:51

Sources tell CNN that's in the first strike in September, one missile disabled the ship and killed many of the crew members, but when some survived that first strike, the military launched a second strike to kill anyone who was left.

David Rind

00:09:07

When we come back, how the administration is explaining all this, and I'll talk to a former military lawyer about whether he buys it. Stick around.

Michael Schmitt

00:09:24

A double tap is when you strike a target and then you go back and you strike it again to make sure you've destroyed the target or killed the individuals that are involved.

David Rind

00:09:37

'Michael Schmidt is a professor of international law at the University of Reading in the UK. He's also a professor emeritus at the United States Naval War College. I wanted to ask him about this strike on September 2nd and whether it was legal. While he says double-tap strikes are used in combat, it becomes a whole different thing when survivors are involved. In his mind, clearly illegal. You may

Michael Schmitt

00:10:01

not conduct an attack on someone who is wounded, someone who has surrendered, and i relevant in this case is someone who has been shipwrecked.

David Rind

00:10:14

'Well, so you recently co-wrote a very detailed analysis for just security that looks at what we know so far about this September second strike, which we should say is not a totally complete picture, but you concluded that if the reporting is true, then both orders, the first order by Hegseth and the following order by Admiral Bradley to conduct this second strike were clearly unlawful. You wrote, quote, Under well established law, those who complied with the orders cannot escape individual criminal responsibility for the killing of the two survivors in the event they are brought to trial. You continue if the reporting is accurate, those orders should, as a matter of law, have been refused. How did you arrive at that conclusion?

Michael Schmitt

00:10:55

'Well, there are actually two possibilities. There's some debate over whether we are at war with the cartels that are involved. It is my view, and I I think it's the correct view, obviously, and it is the prevailing view in the international law community that we are not involved in an armed conflict with the cartels. If that is the case, the killing of those survivors was clearly unlawful as what is known as an extrajudicial killing. In other words, during peacetime, you may kill someone, but it has to be in a situation in which there's an imminent threat of death or grievous bodily injury to you or to others. So if this was a peacetime operation, as the vast majority of international lawyers believe it to be, then it was clearly unlawful because those individuals in the water represented no threat to anyone. Now, the reason I said there are two views is because the administration has claimed we are involved in an armed conflict with the cartels. In other words, in in lay terms, we're we're at war with them. But even if that's the case, and again, I want to emphasize most international lawyers say that's not the case. Even if that is the case. The orders would have been unlawful on two bases. The first is that it's unlawful to order no quarter, in other words, that there be no survivors, long-standing law reaching back into the 19th century, well accepted by the United States. And then the second basis, if either Secretary Hegseth or the Admiral that gave the order and anyone else knew that they were sh there were shipwrecked individuals, then those individuals are protected under the law of war because they are shipwrecked and may not be attacked. So in either case, the second strike was

David Rind

00:12:57

'Was clearly unlawful. We should say the Trump administration explanation for what happened here has really kind of shifted. Initially, the Department of Defense issued a kind of non denial but trashed the reporting. Then on Sunday, Trump himself said he wouldn't have wanted a double tap strike. And Secretary of Defense Pete Heggseth told him that didn't happen. Then on Monday, the White House admitted there was a second strike, but that it was done in self-defense and that the military was operating within the limits of the law. And now the White House is really shifting responsibility on this Admiral, Admiral Frank M. Mitch Bradley, who is the commander of U.S. Special Operations Command. They say he gave that second order, although Heggseth is standing by Bradley's decision to do that. I guess what do you make of how that story has evolved?

Michael Schmitt

00:13:44

Well, the the story has shifted daily. There was an earlier story that the reason the boat was struck was because it represented a hazard to navigation in the maritime environment, which actually is a a thing. If you have a boat, for example, and you've arrested the people aboard the boat and it's in a sea lane, you can destroy that boat because it does pose a risk to others. But of course that would not justify killing the individuals.

David Rind

00:14:14

I mean, and it's interesting because in a later strike the administration acknowledged that there were survivors pretty much right away and actually later sent them back to their home countries. Does that suggest that there was some kind of change in protocol?

Michael Schmitt

00:14:26

Well, I don't know if there was a change in protocol. I know that that was the right answer. That was exactly what should have happened. You know, I need to to caution, you know, your listeners, the strikes themselves are not lawful. You know, putting aside the second strike, the initial strike was not lawful because there's no basis. You're saying the whole premise is flawed. The whole premise is flawed. It has been flawed from the beginning. And again, in the view of the vast majority of international lawyers, many of whom have extensive military experience, the strikes themselves, putting aside the second strike, are clearly a violation of international law.

Sen. Elissa Slotkin

00:15:08

I'm Senator Elissa Slotkin.

Senator Mark Kelly

00:15:09

I'm Senator Mark Kelly.

David Rind

00:15:12

I wanna ask about the refusal part of this, because a group of democratic lawmakers made waves last month when they posted this video on social media.

Senator Mark Kelly

00:15:21

Our laws are clear. You can refuse illegal order.

Sen. Elissa Slotkin

00:15:25

You can refuse illegal orders.

Rep. Chris Deluzio

00:15:27

You must refuse illegal orders.

Sen. Elissa Slotkin

00:15:29

No one has to carry out orders that violate the law or our constitution.

David Rind

00:15:34

Reminding US service members and intelligence officials that they should not follow illegal orders. President Trump got really mad about this. He wrote on social media that they were traitors and that their comments were, quote, seditious behavior punishable by death. The FBI now wants to interview these lawmakers about the video. But I'm wondering how often do service members actually refuse to follow out an order? You you served 20 years as a judge advocate in the US Air Force, which is basically a military lawyer. So can you put me in that moment? I imagine it's extremely stressful situation, finger on the button during a combat operation. Who exactly is going to say, Hey, I need to take a break here to bust out the law book to make sure what I'm being asked is actually legal?

Michael Schmitt

00:16:15

Yeah, it doesn't happen very often that the orders are refused. What typically happens is you may have a target, and the individuals who are going to carry out the strike will push back a little bit and say, are we sure we can do that? For example, we believe there will be incidental harm to civilians. Is that proportionate? And that's usually where the JAG comes in. So the judge advocate general is part of this process and will be providing advice throughout, and we'll work with the commander and the operators who are going to execute to make sure they get to the right answer. So, in my experience, and after I retired, I spent the next 25 years at the Naval War College at West Point and other places. In my experience, it's usually the operators themselves pushing back and saying, We're not so sure about this strike. You know, I see some civilians in the area of can we do this operation in a different manner that you know that achieves the military objective without placing civilians and and others who are protected, like the wounded and the sick and and and in this case, shipwrecks.

David Rind

00:17:29

'And we should say Secretary Heggseth has been no fan of Jags. He's kind of talked about how it kind of hampers, you know, combat readiness out out in the field. Secretary Hegseth also posted this meme online on Sunday after the reporting about these survivors came out showing this mock-up of a children's book cover with Franklin the Turtle. And the title was Franklin Targets Narco Terrorists. The turtle had a rocket launcher shooting boats out of the water, really wild stuff. Is that something that could be used in investigations down the line to point to a a mindset? Or are they strictly going to be looking at like the video evidence of what actually happened in the

Michael Schmitt

00:18:08

Yeah, I think they'd look at the video evidence, they'd look at communications up and down the chain of command. I will tell you, I've been, you know, around the armed forces now for fifty years. And the judge advocates that provide legal advice are very, very good. And I don't think they'd pay very much attention to things like the meme. I I think they would disregard it. And frankly, I've talked to a lot of military personnel and nobody takes that seriously.

David Rind

00:18:38

If we accept for a minute the Trump administration argument that these are indeed drug traffickers bringing dangerous drugs to the shores of the US, I can hear some people possibly saying, you know, forget the rules. These are these are dangerous people. Why should there be rules when we are at war with dangerous folks?

Michael Schmitt

00:18:57

Yeah, so I I've I've heard that from some corners. Listen, that will destroy the effectiveness of our armed forces. I mean, to be very frank, if we are not following the law ourselves, then we become nothing but a gang of thugs. I'm extremely worried that these operations will undercut the effectiveness of the military for decades. I've had many military personnel reach out to me because over the years I've trained a lot of them, I served with some of them, and they're really troubled. I I had a major, a major in the Army reach out to me just this morning, you know, telling me that she was really struggling because she doesn't want to be a part of a lawless gang. That that's not why she raised her hand and swore no to the Constitution. It's not why military personnel put their their lives at risk to defend the nation. So my big concern here, I'm concerned about the individual incidents, of course, but my big concern here is this is going these sorts of actions are going to keep good people from joining the armed forces. It will keep good lawyers from wanting to join a law firm, the armed forces, that is clearly not abiding by the law. The other thing is is I I do think there's this sense that if if the senior leadership disregards the law at the lower level, I'm not talking about mid or senior level officers, but at the lower level, they are inclined to feed off of that kind of of attitude towards the law. It's very dangerous. It's it's dangerous in the short term, but it also has long term impact on the effectiveness of the American Armed Forces.

David Rind

00:20:58

But I guess I'm wondering about like in terms of how this fits in historically, because you know, the Obama administration got a lot of heat for killing innocent civilians with drones during the war on terror in the Middle East. Are are those fair comparisons to make, or is the the pretext of how the Trump administration is going about this whole thing on the basis of being at war with drug cartels make this fundamentally different?

Michael Schmitt

00:21:23

'Yeah, this is fundamentally different. So the drone strikes were drone strikes against individuals targeting individuals who are actively involved in the use of force against the United States or other countries that the United States was supporting. So when we were going after Al-Shabaab or ISIS or Al Qaeda assets, those were all groups that were committed to employing force against the United States or its allies and partners. I am of the view that those drone strikes were in many cases lawful. This is fundamentally different because this isn't about people attacking the United States or American assets or its partners and allies directly. It's simply about criminality. And the criminality does need to be responded to, but it needs to be responded to consistent with the law, or we become criminals ourselves. You you know it's two wrongs do not make a right.

David Rind

00:22:20

Yeah.

Michael Schmitt

00:22:20

It's quite

David Rind

00:22:21

Simple. Yeah, I was going to say, is this a moment where the Trump administration could be trying to kind of push the limits of what they can get away with? Because we've seen in many other areas, whether that's immigration, firing of federal employees, retaliation against political opponents or elite institutions like colleges or law firms, they've gone ahead and done some of this stuff and knowing that there would be legal pushback.

Michael Schmitt

00:22:46

I think you're absolutely right. That's exactly what's happening. They are pushing the limits to see if they can get away with this. But, you know, unfettered control over the use of force that ignores the rules of law. That's just contrary to everything that the U.S. Armed Forces are committed to. I want your listeners to understand this whole series of events is incomprehensible to professional members of the armed forces. No one is more worried about these events than the members of the armed forces.

David Rind

00:23:20

Well finally, it it's worth noting that the Washington Post really got the ball rolling on this story with their reporting on the double tap strike. And in October, the Pentagon removed all press who didn't agree to really an unreasonable set of reporting rules imposed by Heg Seth, including CNN, which later confirmed the story. So what does it say to you that this one strike and the details that we're still finding out about saw the light of day in the first place? Well, I'm delighted

Michael Schmitt

00:23:46

'It it saw the light of day because I'm very troubled by the fact that the press has been pushed out of having visibility on these sorts of operations. That's how we know in a democracy that something is going to foul. As we can see with the reaction to the story, this may be the the straw that that broke the camel's back. I I certainly hope it is. The operations more broadly, the threat against Venezuela are bad, but this one is so clearly unlawful that perhaps this is a wake-up call for the United States.

David Rind

00:24:23

Yeah, you usually see with past presidents an attempt to kind of convince the public that whatever kind of military action they're about to get into is worth doing. We have not seen that this time around. And the public is largely not on board with this operation. A CBS news survey last month found that 76% did not believe that Trump had explained his position on Venezuela, and only thirteen percent saw the country as a major threat to national security. And for Trump, someone who has campaigned on pulling the US out of foreign entanglements, it raises all kind of political questions as well. Well, Mike, thanks so much for the perspective. I really appreciate it.

Michael Schmitt

00:24:59

It's my pleasure.

President Donald Trump

00:25:03

As far as the attack is concerned, I didn't you know, I I still haven't gotten a lot of information 'cause I rely on Pete. But to me it was an attack. It wasn't one strike, two strikes, three strikes.

David Rind

00:25:14

In a cabinet meeting on Tuesday, just hours after Michael and I spoke, President Trump and Secretary of Defense Heggseth both admitted they did not know about the second strike on that boat during the September 2nd attack, but Heggseth said he stands by Admiral Bradley's decision to order it. Heggseth also said he watched that first strike live, but then quote, moved on.

Pete Hegseth

00:25:35

I did not personally see survivors, but I stand because the thing was on fire. It was exploded and fire and smoke. You can't see anything. You got digital things. This is called the fog of war.

David Rind

00:25:45

Trump also promised the strikes would continue and that they will soon include targets inside Venezuela. One more thing before we go, some experts have also wondered about all the oil Venezuela has and whether this pressure campaign has anything to do with that. Well, my colleagues at CNN Business have this great story up at CNN.com about that with the headline Trump is threatening to attack a country with more oil than Iraq. I highly suggest you check it out. We'll leave a link in our show notes. We'll be back right here on Sunday. I'll talk to you then. Thanks for listening.

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