Pete Hegseth is in trouble. He was already a scandal-plagued cabinet secretary, and he is now credibly accused of either committing or presiding over the commission of a serious war crime. On 2 September, the self-described secretary of war (formerly secretary of defence) ordered a strike on a small boat in the Caribbean Sea that the Trump administration maintains was being used to smuggle drugs into America. Once the boat had been partially destroyed, two survivors clinging to the wreckage were hit and killed by a second missile that may have been a criminal act.

Outrage about the operation itself was compounded by Hegseth’s response to the story. The administration acknowledges that he ordered the original strike on the boat and gave instructions to “kill them all.” But Hegseth has claimed that he then left the room and that the second strike on the survivors was ordered by his subordinate, Admiral Frank M. Bradley, in an effort to comply with Hegseth’s first directive. For the time being, he appears to retain the support of the Trump administration despite the grave nature of this crisis, and many people on both sides of the political spectrum seem to be convinced that Hegseth’s job is secure. President Trump once infamously said that he could “stand in the middle of Fifth Avenue and shoot somebody” and not lose any voters. Now we shall find out if Secretary Hegseth can supervise the shooting of two people swimming in the Caribbean Sea and keep his job.

Firing politically toxic cabinet secretaries has a long history in America. In 1831, President Andrew Jackson fired four members of his cabinet after a scandal involving the new wife of war secretary John Eaton. In 1862, with the Civil War raging, President Lincoln fired his secretary of war, Simon Cameron, for corruption in response to congressional pressure. Theodore Roosevelt fired two different attorneys general. Franklin Roosevelt fired isolationist war secretary Harry Woodring in 1940. Harry Truman fired his attorney general, and even more famously, fired one of the key military heroes of World War II, Douglas MacArthur, for insubordination in prosecuting the Korean War. (This particular move backfired spectacularly, as General MacArthur returned to a hero’s welcome in the United States from both the public and the Congress.)

More recently, President Trump—whose catchphrase on television, of course, was “you’re fired,” and who criticised President Biden in their 2024 debate for having “never fired anyone”—fired numerous cabinet secretaries and other senior personnel in his first term as president. Nonetheless, the belief persists that he’ll never fire Hegseth. I think this conventional wisdom is wrong, and that there’s a better than even chance that Trump will find a way to dismiss Hegseth as a result of this latest scandal as well as his previous conduct.

Pete Hegseth was, from the start, an atypical choice to run the armed forces. Usually, the defence secretary is a former or current member of the House or Senate with a particular interest in national security (Dick Cheney, William Cohen, Leon Panetta), a businessman with an interest in the topic (Robert Mcnamara), or an experienced hand in executive-branch agencies who can work the bureaucracy (Caspar Weinberger). Hegseth, on the other hand, was just a conservative-media pundit who espoused a reliable if simplistic list of talking points about military issues—that liberals are weak, that military lawyers (Judge Advocates General, which he called “JAG-offs”) hamstring the armed forces, and that America’s warriors should be given unconditional support with less regard for niceties such as the law of war. He had served at Guantanamo Bay after 9/11, and parlayed his service record and right wing views into leadership positions at conservative groups like Vets for Freedom that work on military issues. He had no relevant legislative or executive-branch experience for the position.

Hegseth’s professional inexperience and apparently unsavoury personal life ensured that his confirmation process was rocky. Thrice married, he was accused of financial impropriety, drunkenness, womanising, and finally, an alleged instance of sexual assault that left the alleged victim with what a police report termed “contusions to right thigh” (no charges were filed). A report in Vanity Fair detailed his alleged conduct at a 2017 conference of Republican women, held in the seaside resort community of Monterey, California, after which Hegseth was investigated by local police for two alleged instances of sexual assault. He had subsequently paid off an accuser in 2020 and obtained an NDA in return, and was accused by a thirty-year-old woman of rape at the conference.

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Hegseth denied the rape allegations, but even if we accept his denials, the story’s remaining details sound horrible. To wit, a couple of months after his new wife had a baby, he went to the conference, got very drunk, unsuccessfully hit on several women, then had an argument with another woman who later had consensual sex with him. In other words, even under the most forgiving spin of the facts, Hegseth’s behaviour was pretty scandalous. The incident made Hegseth’s confirmation vote razor thin and he came very close to being denied confirmation—the Senate vote to confirm him was 50–50 and required a tie-breaking vote from Vice President Vance. Senator Thom Tillis apparently held out until the last moment before voting “yes.”

One might think that if a cabinet secretary had questionable qualifications and personal baggage, and had survived a super-close confirmation vote, he might feel the need to work extra hard to prove himself competent on the job. Instead, just a couple of months after confirmation, Hegseth was at the centre of a breathtaking breach of operational security when he discussed attacks on alleged Houthi terrorists, including details of US aircraft launch times, in an insecure Signal chatroom that included the Atlantic’s editor-in-chief Jeffrey Goldberg. The carelessness of the Defence Department evidenced by this incident was appalling. So by the time Hegseth ordered the 2 September strike in the Caribbean, he was already severely damaged goods.

The law of war, which Hegseth, in his Fox News days, routinely described as the product of liberal lawfare, is actually the product of warriors themselves. Many of its basic principles—take prisoners, wear uniforms, do not attack non-combatants etc.—are the results of centuries of customs and best practices, developed and to some extent agreed upon by the world’s militaries. The law of war is one of the earliest and richest sources of what international lawyers call “customary international law,” which is generally accepted as binding on all the world’s nation-states and armed forces, including in the United States. Customary international law is referenced twice in the powers of Congress in Article I Section 8 of the US Constitution: the powers to “define and punish. … Offences against the Law of Nations,” and to “make rules concerning Captures on Land and Water.” The US Supreme Court has long held—in cases like Murray v. The Charming Betsey (1804) and The Paquete Habana (1910)—that customary international law is generally binding on the US government.

The principle of the law of war we know as the prohibition on “no quarter” orders evolved gradually. The earliest rules involved fair notice—as early as the Middle Ages, naval ships developed the custom of flying a red flag (the “Bloody Flag”) warning their opponents that they would take no prisoners. A black flag evolved into the symbol that quarter would be given if a vessel surrendered. The skull-and-crossbones (Jolly Roger) flag, famously associated with pirates, was a version of this black “quarter” flag; pirates did not want to send vessels and their treasure to the ocean floor, but to board them and steal the booty. This evolved into the custom that combatants had a responsibility to give their adversaries notice as to whether they would take prisoners or kill everyone.

This, however, did not solve the problem, as militaries still freely used “no quarter” orders and there were periodic scandals involving massacres of surrendering troops. A famous example in American history occurred during the Battle of Fort Pillow in the Civil War, when black troops attempted to surrender but were gunned down at the order of Confederate General Nathan B. Forrest. By the early 20th century, the law of war had evolved a flat prohibition on no-quarter orders. This was then codified after World War II in the 1949 Protocols to the Geneva Conventions, which used the term hors de combat (“outside combat”) for enemy personnel who were either surrendering or were wounded and unable to defend themselves. If an enemy soldier or sailor was hors de combat, they could not be attacked, only taken prisoner.

So Hegseth’s Fox News narrative about “JAG-offs” and liberal lawfare was not only juvenile, it was also inaccurate. It was militaries themselves, concerned with having a set of rules that clearly defined who was in and out of the fight, that generated the law of war. And under the rules the world’s militaries generated, the claim that killing two people hanging on to boat wreckage in the middle of the ocean is lawful is absurd.

The problem for Hegseth is not just that he supervised (and possibly directed) this violation of a crucial provision of the law of war, but that this issue drives a wedge within the conservative coalition. The American Right prides itself on its connection with the military and it is used to singing the praises of America’s warriors. Warriors with conservative political views have a privileged place in the conservative media ecosphere. Conservative media turns to vets when discussing national-security issues, welcoming the implicit message that “we support America’s troops while those unpatriotic liberals do not.” And America’s warriors believe that you should not attack enemies hors de combat. As a result, conservative networks have been finding that some of their usually reliable talking heads are unwilling to defend Hegseth in this instance.

This is especially damaging given that conservative media traditionally floods the zone with a barrage of talking points—“These people were terrorists!” and “They were reaching for their radios and their guns!” and “There’s no prohibition against finishing them off!”—in order to let conservative viewers and listeners know that there are so many problems with the “liberal” position that they need not worry that it has merit. With so many conservative ex-military commentators appalled by the thought of a US plane firing at defenceless shipwreck survivors in the water, the Right cannot mount an effective defence of Hegseth. In addition to which, a number of conservative lawmakers, who were likely already upset with Hegseth for reasons that date back to his confirmation process, are also conspicuously not defending him. The upshot is an embattled secretary of defence.

So what happens now? I cannot imagine things get any better in the short term for Hegseth. Republicans in Congress are likely to go along with some sort of investigation, and the video of the incident (which, according to reporting quoting people who have seen it, makes clear that the victims were defenceless) may end up being released to the public. I doubt congressional Republicans who dislike Hegseth are interested in protecting his hide. Eventually, the most likely outcome is that Hegseth will join the long procession of American cabinet secretaries who were forced to leave their position as the result of scandal.