Pres­i­dent Don­ald Trump reg­u­lar­ly makes his po­lit­i­cal al­lies eat an un­palat­able sand­wich. Sec­re­tary of De­fense Pe­te Hegseth was one of Trump’s ear­ly, dif­fi­cult asks. When nom­i­nat­ed, Hegseth, then a week­end TV host at Fox News, didn’t come close to hav­ing the usu­al qual­i­fi­ca­tions for a job that would give him com­mand of three mil­lion peo­ple across all arms of the vast US mil­i­tary ma­chine and the world’s biggest mil­i­tary bud­get.

Pre­vi­ous post hold­ers had brought long ex­pe­ri­ence of de­fence and gov­ern­ment. Oth­ers, such as Lloyd Austin and James Mat­tis, were dec­o­rat­ed gen­er­als of se­nior rank. Hegseth had briefly served in the army at a much low­er rank. More prob­lem­at­ic than his thin CV were the ac­cu­sa­tions that both­ered even some Trump-sup­port­ing sen­a­tors–Joni Ernst of Iowa in par­tic­u­lar. Hegseth de­nied the al­le­ga­tions, but Ernst, who had faced sex­u­al ha­rass­ment when she served in the army, sig­nalled ear­ly that she might vote against his nom­i­na­tion.

Trump threat­ened to throw his sup­port be­hind a chal­lenger when she runs for re-elec­tion next year. The sen­a­tor fell in line. An­oth­er wa­ver­ing sen­a­tor, Thom Tillis of North Car­oli­na, con­duct­ed his own “in­ves­ti­ga­tion” to show that he took the mat­ter se­ri­ous­ly. He vot­ed yea. Three Re­pub­li­can sen­a­tors in a cau­cus known for strict Trump align­ment vot­ed against con­fir­ma­tion.

Re­pub­li­cans held a 53-47 ad­van­tage. The vote end­ed 50-50. It re­quired a tie-break­ing vote from Vice Pres­i­dent JD Vance. Sen­ate con­fir­ma­tions aren’t usu­al­ly that close, even when votes pro­ceed by par­ty line. Some of Trump’s nom­i­nees got De­mo­c­ra­t­ic votes. Mar­co Ru­bio crushed it in his vote for Sec­re­tary of State … 97-0.

Hegseth is the dri­ver of the pol­i­cy of drone strikes on boats that the US Navy deems drug-smug­gling ves­sels. Twen­ty-six strikes have killed 99 peo­ple. Law­mak­ers, in­clud­ing the sen­a­tors who con­sid­ered his con­tentious nom­i­na­tion, held closed-door brief­in­gs with him, Ru­bio and US Navy Ad­mi­ral Frank Mitchell (Mitch) Bradley, who gave the Sep­tem­ber 2 com­mand to fire on the first boat and fire again on the two sur­vivors of that strike. Not even par­ty-line loy­al­ties could con­ceal the dis­turb­ing na­ture of what they saw on the unedit­ed video. Hegseth says he’ll not make it pub­lic.

Amer­i­can law­mak­ers in­creas­ing­ly ar­gue that the pol­i­cy vi­o­lates in­ter­na­tion­al law, but the peo­ple close to it have been care­ful to give them­selves le­gal cov­er. We were told that the De­part­ment of Jus­tice has giv­en le­gal ap­proval to the strikes, but that memo al­so re­mains out of pub­lic view.

Close ex­am­i­na­tion of Hegseth’s state­ments af­ter each strike shows the le­galisms. They take place in in­ter­na­tion­al wa­ters, he says. I have ques­tions. The mar­itime ar­eas of the coun­tries of the south­ern Caribbean push hard up against each oth­er. Un­claimed wa­ters are much fur­ther north and out­side of the the­atre of op­er­a­tions. By “in­ter­na­tion­al wa­ters”, does Hegseth mean wa­ters out­side of US ju­ris­dic­tion, rather than the wa­ters of an­oth­er coun­try? It’s an im­por­tant dis­tinc­tion.

The hands of lawyers are all over an en­ter­prise of shaky le­gal­i­ty. Take the clunky coinage “nar­co-ter­ror­ist”. The dis­tance be­tween Venezuela and Flori­da is 1,700 km. Ken­tucky sen­a­tor Rand Paul, an oth­er­wise staunch al­ly of Trump, points out the ac­tions of drug smug­glers killed close to Venezuela are not ter­ror­ism. It is a la­bel hung around their necks to ex­e­cute them with­out tri­al.

The pol­i­cy takes some le­gal cues from that of the George W Bush ad­min­is­tra­tion’s 2002 pol­i­cy on “un­law­ful com­bat­ants”. Bush’s at­tor­neys ar­gued that be­cause the Al Qae­da fight­ers cap­tured in Afghanistan were not part of a con­ven­tion­al army, they did not qual­i­fy for pro­tec­tions un­der the Gene­va Con­ven­tions (which gov­ern the treat­ment of pris­on­ers of war) and could be de­tained in­def­i­nite­ly.

Guan­tanamo Bay was US ad­min­is­tered but out­side US ter­ri­to­ry. There­fore, the de­ten­tions were hard­er to chal­lenge. In a US court, ev­i­dence would have to be pre­sent­ed, the men would have le­gal rep­re­sen­ta­tion, and some would like­ly be freed. Le­gal ex­perts say the same cal­cu­la­tion is at play for the so-called “nar­co-ter­ror­ists”, and it’s why the two sur­vivors of an­oth­er strike on Oc­to­ber 16 were sent back to their coun­tries–Colom­bia and Ecuador.

US au­thor­i­ties de­clined to try them in Amer­i­can courts for the same al­leged act that had been deemed grave enough to war­rant their ex­e­cu­tion. Out­side of the US, these in­di­vid­u­als faced no tri­al.