U.S. Attacked Boat With Aircraft That Looked Like a Civilian Plane

The Pentagon used a secret aircraft painted to look like a civilian plane in its first attack on a boat that the Trump administration said was smuggling drugs, killing 11 people last September, according to officials briefed on the matter. The aircraft also carried its munitions inside the fuselage, rather than visibly under its wings, they said.

The nonmilitary appearance is significant, according to legal specialists, because the administration has argued its lethal boat attacks are lawful — not murders — because President Trump “determined” the United States is in an armed conflict with drug cartels.

But the laws of armed conflict prohibit combatants from feigning civilian status to fool adversaries into dropping their guard, then attacking and killing them. That is a war crime called “perfidy.”

Retired Maj. Gen. Steven J. Lepper, a former deputy judge advocate general for the United States Air Force, said that if the aircraft had been painted in a way that disguised its military nature and got close enough for the people on the boat to see it — tricking them into failing to realize they should take evasive action or surrender to survive — that was a war crime under armed-conflict standards.

“Shielding your identity is an element of perfidy,” he said. “If the aircraft flying above is not identifiable as a combatant aircraft, it should not be engaged in combatant activity.”

The aircraft swooped in low enough for the people aboard the boat to see it, according to officials who have seen or been briefed on surveillance video from the attack. The boat had turned back toward Venezuela, apparently after seeing the plane, before the first strike.

Two survivors of the initial attack later appeared to wave at the aircraft after clambering aboard an overturned piece of the hull, before the military killed them in a follow-up strike that also sank the wreckage. It is not clear whether the initial survivors knew that the explosion on their vessel had been caused by a missile attack.

The military has since switched to using recognizably military aircraft for boat strikes, including MQ-9 Reaper drones, although it is not clear whether those aircraft got low enough to be seen. In a boat attack in October, two survivors of an initial strike swam away from the wreckage and so avoided being killed by a follow-up strike on the remnants of their vessel. The military rescued them and returned them to their home countries, Colombia and Ecuador.

U.S. military manuals about the law of war discuss perfidy at length, saying it includes when a combatant feigns civilian status so the adversary “neglects to take precautions which are otherwise necessary.” A U.S. Navy handbook says lawful combatants at sea use offensive force “within the bounds of military honor, particularly without resort to perfidy,” and stresses that commanders have a “duty” to “distinguish their own forces from the civilian population.”

Questions about perfidy have arisen in closed-door briefings of Congress by military leaders, according to people familiar with the matter, but have not been publicly discussed because the aircraft is classified. The public debate has focused on a follow-up strike that killed the two initial survivors, despite a war-law prohibition on targeting the shipwrecked.

The press office for the U.S. Special Operations Command, whose leader, Adm. Frank M. Bradley, ran the operation on Sept. 2, declined to comment on the nature of the aircraft used in the attack. But the Pentagon insisted in a statement that its arsenal has undergone legal review for compliance with the laws of armed conflict.

“The U.S. military utilizes a wide array of standard and nonstandard aircraft depending on mission requirements,” Kingsley Wilson, the Pentagon press secretary, said in response to questions from The New York Times. “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.”

A White House spokeswoman, Anna Kelly, issued a statement that did not specifically engage with the perfidy issues but defended the strike as having been directed by Mr. Trump to go after “narcotics trafficking and violent cartel activities.” She added: “The strike was fully consistent with the law of armed conflict.”

It is not clear what the aircraft was. While multiple officials confirmed that it was not painted in a classic military style, they declined to specify exactly what it looked like.

Amateur plane-spotting enthusiasts posted pictures on Reddit in early September of what appeared to be one of the military’s modified 737s, painted white with a blue stripe and with no military markings, at the St. Croix airport in the U.S. Virgin Islands.

Regardless of the specific aircraft at issue, three people familiar with the matter acknowledged that it was not painted in the usual military gray and lacked military markings. But they said its transponder was transmitting a military tail number, meaning broadcasting or “squawking” its military identity via radio signals.

Several law-of-war experts said that would not make the use of such an aircraft lawful in these circumstances since the people on the boat probably lacked equipment to pick up the signal.

Among the legal specialists who said the use of a military transponder signal would not solve a perfidy problem was Todd Huntley, a retired Navy captain who formerly deployed with the Joint Special Operations Command as a judge advocate general, or JAG, and directed the Navy’s national security law division.

Captain Huntley said he could think of legitimate uses for such an aircraft that would make it lawful to have in the arsenal for other contexts, including a hostage rescue scenario in which munitions might be needed for self-defense but were not intended for launching offensive attacks.

The Trump administration kept planning for the boat attacks operation closely held, excluding many military lawyers and operational experts who would normally be involved. Moreover, Defense Secretary Pete Hegseth has sought to undercut the role of military lawyers as an internal check, including by firing the top service JAGs in February.

The U.S. military operates several aircraft that are built on civilian airframes — including modified Boeing 737s and Cessna turboprops — and can launch munitions from internal weapons bays without visible external armaments. Such aircraft are usually painted gray and have military markings, but military and plane-spotting websites show that a few are painted white and have minimal markings.

The U.S. military has killed at least 123 people in 35 attacks on boats, including the Sept. 2 strike.

A broad range of specialists in laws governing the use of force have said the orders by Mr. Trump and Mr. Hegseth to attack the boats have been illegal and the killings have been murders. The military is not allowed to target civilians who pose no imminent threat, even if they are suspected of crimes.

The administration has argued that the strikes are lawful and the people on the boats are “combatants” because Mr. Trump decided the situation was a so-called noninternational armed conflict — meaning a war against a nonstate actor — between the United States and a secret list of 24 criminal gangs and drug cartels he has deemed terrorists.

The legitimacy of that claim is widely disputed. Still, it has put attention on ways particular attacks might have violated the laws of war.

Like General Lepper and Captain Huntley, Geoffrey Corn, a retired lieutenant colonel JAG officer who was the Army’s senior adviser for law-of-war issues, said he does not believe that the Sept. 2 attack took place in an armed conflict. He is now a law professor at Texas Tech University.

But he noted that the United States considers perfidy to be a crime in noninternational armed conflicts: It charged a Guantánamo detainee before a military commission with that offense over Al Qaeda’s 2000 attack on the U.S.S. Cole, in which militants in a small boat floated a hidden bomb up to the side of the warship while waving in a friendly manner.

Professor Corn said an assessment of whether the Sept. 2 attack counted as perfidy would turn on whether the military was trying to make the people on the boat think the aircraft was civilian to “get the jump” on them.

“The critical question is whether there is a credible alternative reason for using an unmarked aircraft to conduct the attack other than exploiting apparent civilian status to gain some tactical advantage,” he said.

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