The aircraft used in the US military’s first strike on an alleged drug boat in the Caribbean, a strike which has drawn intense scrutiny and resulted in numerous Congressional briefings, was painted as a civilian aircraft and was part of a closely guarded classified program, sources familiar with the program told CNN.
Its use “immediately drew scrutiny and real concerns” from lawmakers, one of the sources familiar said, and legislators began asking questions about the aircraft during briefings in September.
Two sources familiar with the matter told CNN the plane is largely used for reconnaissance and surveillance missions and wasn’t painted the usual grey applied to military planes. Administration officials told lawmakers the aircraft wasn’t pretending to be a civilian aircraft and pointed out the fact that it was using a military transponder and had a military tail number, a source said.
While lawmakers raised concerns in the fall, it’s not clear that the use of the aircraft would violate the law of war which prohibits military personnel from pretending to be civilians to attack an enemy.
Pentagon officials told lawmakers during the briefings that the operation was hurried and that the aircraft was the most available at the time. But one of the sources familiar with the matter said the reasoning didn’t hold up given the intensive planning that supposedly went into the operation and the months-long buildup of US military assets in the region.
“There were unlimited assets available to use, but they chose this one,” the source familiar with the matter said. The New York Times first reported concerns about the aircraft.
“The U.S. military utilizes a wide array of standard and nonstandard aircraft depending on mission requirements,” Pentagon press secretary Kingsley Wilson said in response to questions from CNN about the use of the aircraft. “Prior to the fielding and employment of each aircraft, they go through a rigorous procurement process to ensure compliance with domestic law, department policies and regulations, and applicable international standards, including the law of armed conflict.”
The intentional disguising of a military aircraft as civilian in order to trick enemy combatants would be an act of perfidy, defined in the Defense Department’s Law of War Manual as an act that invites the confidence of the enemy to believe they are entitled to protection, with the intent to betray that confidence. One of the examples that falls under prohibited actions of killing or wounding the enemy through perfidy is feigning civilian status and then attacking the enemy.
But the situation in September is not so clear cut, according to legal experts. The operations in the Caribbean – which have killed at least 115 people – have not been legally defined as a war, as Congress has not declared such a conflict.
The head of the Justice Department’s Office of Legal Counsel told lawmakers last year that the activities in the Caribbean and Pacific Ocean do not require a declaration of war from Congress and don’t meet the definition of hostilities. Still, a Pentagon notice provided to Congress in October said President Donald Trump determinedthe US was in an “armed conflict” with the drug cartels.
“Perfidy rules apply in war, and this was not a war,” Rachel VanLandingham, a former Air Force judge advocate and current law professor at Southwestern Law School, told CNN.
Josh Kastenberg, also a former Air Force judge and prosecutor who is now a professor at the University of New Mexico School of Law, said that for it to be true perfidy the actions would need to be not just trying to camouflage what the military was doing, but doing it “with the intended effect of getting them to believe they’re safe.”
If the US was in a legitimate armed conflict and the law of war applied, the issue would be perfidy “if the intent was to induce the boat crew’s reliance on a belief that the aircraft was non-threatening” in order to get them not to fight back or flee, Daniel Maurer, a retired Army lieutenant colonel and former judge advocate, told CNN.
“That assumed the crew on the boat or in the water could visually see the aircraft,” Maurer said. “But we’re not in an armed conflict. In a law enforcement paradigm, the missile strikes were already illegal regardless of what the aircraft looked like.”
By CNN
Email your news TIPS to Editor@Kahawatungu.com — this is our only official communication channel
