Pete Hegseth Should Be Prosecuted for ‘War Crime’

By Robert Alexander

Senior Crime & Court Reporter

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A former Fox News personality is calling for criminal prosecution of Defense Secretary Pete Hegseth amid escalating scrutiny over the Trump administration’s lethal strikes on suspected drug-smuggling boats in the Caribbean and eastern Pacific.

Judge Andrew Napolitano, Newsmax’s senior judicial analyst who worked with Hegseth for nearly a decade at Fox, on Tuesday addressed a follow-up strike on survivors of a September 2 operation, telling his current station: "It gives me no pleasure to say what I'm about to say…This is an act of a war crime."

Napolitan said everyone involved "should be prosecuted for a war crime for killing these two people."

Newsweek contacted The White House and The Pentagon via email outside of normal office hours on Wednesday.

Why It Matters

The allegations that Defense Secretary Pete Hegseth ordered a second strike to kill survivors of a September 2 boat attack have escalated into a rare confrontation over the limits of U.S. military force and the rule of law.

Several Republican and Democratic lawmakers, as well as legal experts, have suggested the reported follow-up strike may constitute a war crime.

With congressional committees preparing to put military leaders under oath, the controversy raises questions about the legality of orders issued at the highest levels of government and the exposure of U.S. service members to potential criminal liability.

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What To Know

Pete Hegseth is the U.S. secretary of defense and a former Fox News host, appointed by President Donald Trump to lead the Pentagon despite having no prior senior military or civilian defense leadership experience.

Judge Andrew Napolitano is a former New Jersey Superior Court judge and longtime Fox News legal analyst known for his commentary on constitutional law and civil liberties.

The controversy is about a U.S. military strike on a suspected drug-smuggling boat. According to reports, survivors were still alive after the first attack on the boat, and the military may have carried out a second strike that killed them—raising serious questions about whether the order was legal, whether top officials, including Defense Secretary Pete Hegseth, approved it, and whether the United States violated the laws of war by killing people who could no longer fight back.

A War-Crime Allegation Against the Defense Secretary

On December 2, Napolitano said that Hegseth should face war-crime prosecution for allegedly ordering the killing of everyone aboard a suspected drug-smuggling boat in early September.

"It gives me no pleasure to say what I'm about to say…This is an act of a war crime," Napolitano said in a recorded conversation. "Ordering survivors who the law requires be rescued instead to be murdered…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."

The comments refer to a Washington Post report, cited repeatedly by members of Congress, that the initial September 2 strike on a vessel off the coast of Venezuela left two survivors clinging to wreckage.

A second strike was then ordered, killing them.

Secretary Hegseth has publicly denied wrongdoing and disputed the reporting, insisting the operations are both lawful and effective.

"These highly effective strikes are specifically intended to be ‘lethal, kinetic strikes,’" Hegseth wrote in a post on X defending the broader counternarcotics campaign. "Every trafficker we kill is affiliated with a Designated Terrorist Organization…Our current operations in the Caribbean are lawful under both U.S. and international law, with all actions in compliance with the law of armed conflict."

Congress Demands Answers

Still, bipartisan concern is growing in Congress.

Senator Mark Kelly, a former Navy combat pilot and Democratic member of the Senate Armed Services Committee, said this week the chamber would compel Pentagon leaders to testify under oath.

"We’re going to have an investigation…We’re going to have a public hearing. We’re going to put these folks under oath. And we’re going to find out what happened. And then, there needs to be accountability," Kelly said on NBC’s Meet the Press.

Other lawmakers have been even more direct.

Senator Chris Van Hollen (D-Md.) told ABC News it is "very possible there was a war crime committed," arguing that even under the Trump administration’s own legal theory, a second strike on incapacitated survivors would violate the law of armed conflict. "If that theory is wrong, then it’s plain murder," he added.

Representative Don Bacon (R-Neb.), a retired Air Force brigadier general, similarly said that if reports of a second strike are accurate, the action would be "a clear violation of the law of war," noting that individuals attempting to surrender or otherwise posing no imminent threat cannot be targeted.

Those comments were included in congressional briefings provided to lawmakers.

The Pentagon has said the follow-up strike was conducted to sink the damaged boat so it would not present a navigation hazard, a rationale that several lawmakers have publicly questioned.

The administration has not released the unedited surveillance footage requested by congressional leaders.

Hegseth has rejected all allegations of illegality, characterizing the criticism as politically motivated attacks on U.S. service members.

"The fake news is delivering more fabricated, inflammatory, and derogatory reporting to discredit our incredible warriors…I will ALWAYS have their back," he posted.

What’s at Stake Under International Law

The stakes of the investigation are significant.

If the facts align with reporting that survivors were intentionally targeted, international law experts say the order could fall under prohibitions against killing persons who are hors de combat—those incapable of fighting—which is barred under the Geneva Conventions.

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Professor Ryan Goodman is a legal scholar specializing in international law, currently the Anne and Joel Ehrenkranz Professor of Law at New York University (NYU) School of Law. He is also the founding co-editor-in-chief of the online journal Just Security and has held past positions at Harvard Law School and as Special Counsel to the General Counsel of the Department of Defense.

In 2013, Professor Goodman wrote: "During wartime a critical legal question involves the scope of authority to choose whether to kill or capture enemy combatants. An important view maintains that a combatant is lawfully subject to lethal force wherever the person is found—unless and until the individual offers to surrender.

"I argue that, in certain well-specified and narrow circumstances, the use of force should instead be governed by a least-restrictive-means (LRM) analysis. The modern law of armed conflict (LOAC) supports the following maxim: if enemy combatants can be put out of action by capturing them, they should not be injured; if they can be put out of action by injury, they should not be killed; and if they can be put out of action by light injury, grave injury should be avoided."

Napolitano’s call for prosecution underscores the unprecedented nature of the allegation against a sitting secretary of defense.

While multiple congressional inquiries are now underway, no formal charges have been filed, and the administration maintains that all operations comply with legal standards.

As hearings begin, lawmakers say the central questions remain whether the survivors posed any imminent threat, whether the chain of command acted within the law, and what evidence exists to support the administration’s claims.

Until those answers are provided, the political and legal pressure surrounding the strikes—and Hegseth’s role—appears unlikely to subside.

What People Are Saying

Pete Hegseth, Secretary of Defense in defending the strikes, said: "These highly effective strikes are specifically intended to be ‘lethal, kinetic strikes.’… Every trafficker we kill is affiliated with a Designated Terrorist Organization."

Judge Andrew Napolitano accusing Hegseth of criminal conduct, said: "This is an act of a war crime…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."

What Happens Next

Congress is preparing formal investigations into the September 2 strike amid bipartisan warnings it may constitute a war crime, increasing pressure on the Pentagon to release unedited footage as allies distance themselves and legal experts raise concerns about potential criminal liability for officials involved.

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