Pentagon ordered to show legal justification for boat strikes

U.S. District Judge Paul Engelmayer rejected most of the government’s arguments that the document is privileged, but will review it himself before making them public.MANHATTAN (CN) — A federal judge on Wednesday ordered the Pentagon to show him a memo that supposedly justifies its series of lethal boat strikes in the Caribbean Sea and Pacific Ocean before he determines whether to make the document public.The Trump administration, which for months has been carrying out this controversial operation in an effort to combat drug smugglers, claimed for a variety of reasons that the document is privileged when it denied FOIA requests from the American Civil Liberties Union and the Center for Constitutional Rights to see it.U.S. District Judge Paul Engelmayer rejected most of its privilege claims, but ultimately found he needed to review the memo himself before deciding whether to turn it over to the civil rights groups. In a 66-page ruling in the Southern District of New York, the judge ordered the Department of Defense and the Department of Justice to show him the document in the next two weeks.“The court rejects the privilege claim with respect to two of the three privileges the agencies invoke (the deliberative process and attorney-client privileges),” the Barack Obama appointee wrote. “But the existing record does not permit the court to reliably resolve whether the agencies have waived their right to invoke the third (the presidential communications privilege). The court accordingly orders the agencies to furnish information to enable it to resolve that question.”The government has been attacking boats it claims is smuggling drugs since last fall, resulting in at least 70 strikes and more than 200 deaths, according to reports. The ongoing operation has raised considerable questions over how the administration knows which vessels to strike and whether it has the authority to do so at all, considering the United States military is not permitted to target civilians who do not pose an imminent threat of violence.The document at issue is a memo from September 2025 written by the Justice Department’s Office of Legal Counsel, which the Trump administration claims gives them the authority to conduct the strikes that have been decried by detractors as possible war crimes.The ACLU and the CCR filed a FOIA lawsuit in December 2025 after their requests to see the memo were denied.“The public deserves to know how our government is justifying the cold-blooded murder of civilians as lawful and why it believes it can hand out get-out-of-jail-free cards to people committing these crimes,” Jeffrey Stein, staff attorney with the ACLU’s National Security Project said in December when announcing the suit. “The Trump administration must stop these illegal and immoral strikes, and officials who have carried them out must be held accountable.”Engelmayer rejected the government’s invocation of deliberative process privilege, as “executive branch officials have repeatedly publicly invoked the OLC memo as the basis for the lawfulness of the boat strikes.” He also disagreed with its bid to claim the document fell under attorney-client privilege, noting the memo was shared with people outside of the attorney-client circle.Those people included some members of Congress, several of whom were disturbed by its findings.“If that opinion were to be adopted, it would not constrain any use of force anywhere in the world,” Senator Adam Schiff, a Democrat from California, said after reviewing the memo in November. “I mean, it is broad enough to authorize just about anything.”The only privilege type Engelmayer found to have any potential credence was presidential communications, which protects correspondence among the president’s inner circle. But the judge acknowledged this privilege may also be waived if an agency “disseminates or voluntarily discloses a document.”That’s why he ordered the government to identify everyone who has been given access to the memo, and additionally requiring that he read it himself to see if it “may shed light on its intended or actual recipients.”The Department of Defense and Department of Justice didn’t immediately respond to requests for comment.This month, the Pentagon said it killed four people in a boat strike on the Caribbean based on “confirmed intelligence” that revealed the vessel was involved in narco-trafficking. Days later, the United Nations revealed in a report the U.S. operation against these vessels could constitute crimes against humanity.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads