Recently, the New York Times (NYT) (here) and the Washington Post (here) published stories that can leave readers with the impression that U.S. military members are war criminals.  In this instance, it’s for allegations of perfidy with respect to a September 2, 2025 strike on an alleged drug boat that killed 11 people.

The authors include reporters I’ve known and respected for years, yet for whatever reason, the stories stumble over the law (which, admittedly, does have nuances) and omit facts pertinent to analyzing alleged perfidy. 

Most puzzling, however, is the NYT’s failure to account for its earlier reportage that cites sources whose statements actually contradict a ‘perfidy’ finding. 

The newspapers’ allegation

The NYT report claims that according to unnamed “officials,” 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…[and that the] aircraft also carried its munitions inside the fuselage, rather than visibly under its wings.” 

Then, seemingly relying on the views of various legal pundits, the piece insinuates that “the war crime called ‘perfidy'” had occurred.  The Post’s story was much the same.  Let’s unpack this to see where the article might have gone wrong.

The actual law and its requirement for specific intent

What is “perfidy”? Citing Additional Protocol I to the Geneva Conventions, the International Committee of the Red Cross (ICRC) explains:

“Additional Protocol I [to the Geneva Conventions] defines perfidy as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” This definition is restated in the Elements of Crimes for the International Criminal Court. It is also contained in numerous military manuals.”  (Emphasis added; citations omitted.)

Oxford Public International Law (Max Planck Encyclopedia of Public International Law) elaborates on the intent requirement: 

“[The] subjective, element consists in the intent to betray the created confidence. This criterion sets a specific requirement on the mens rea of the act: it should be committed not only willfully, but with the specific intent to betray the confidence of an adversary. This criterion aids in distinguishing perfidy from other acts of misuse of legal protection, as perfidy is restricted only to those acts that go beyond the misuse of law, being designed to betray the confidence.”  (Emphasis added.)

In short, the law of perfidy does not, per se, prohibit using an aircraft that “looked like a civilian plane” to conduct attacks. 

Perfidy arises only when the facts show that the attacker performed acts that lead the target to believe the plane is in the category entitled to legal protection under the law of armed conflict, and also has the specific intent to “betray that confidence.“

The newspapers’ versions of the “law”

Neither newspaper fully explains the law of perfidy.  The NYT abbreviates it this way:

“[The] 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.”

But they followed that with this problematic comment from one of their “legal specialists” who claimed:

“[I]f 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.””

Inexplicably, this characterization of the law fails to acknowledge the need to prove that the attacker had the “specific intent” to “betray the confidence of [the] adversary.”  Accordingly, what the NYT legal specialist describes just isn’t perfidy, as the paint scheme of the plane is not, by itself, sufficient, notwithstanding that the people on the boat may have seen it.

Put another way, even if the boat occupants tricked themselves into mistaking the nature of the plane because of its paint, it still must be shown that the attacker acted willfully, and had the necessary specific intent to mislead them into thinking the strike aircraft was one entitled to legal protection. 

As discussed below many planes of a “military nature” have paint schemes that may fool an unwary adversary–indeed, some may have a camouflage paint scheme explicitly intended to disguise its aeronautical character so it would be hard for a potential target to even see it (e.g, light colored countershading)— but this isn’t perfidy absent a specific intent to betray the adversary’s “confidence” that the plane is one that enjoys protected status under the law of armed conflict.

Besides failing to establish that the attackers had the necessary intent, the NYT offers no evidence that those on the boat harbored any “confidence” that the plane enjoyed protected status. 

(Indeed, as you will read below, in an earlier article, the NYT quoted a source who asserts that the people on board the boat actually knew the plane was a “military aircraft.”  In my view, this guts the perfidy theory–and I can’t understand why the NYT didn’t attempt to resolve the contradiction.)

The Post’s version of the law is somewhat different, but still blurs the mens rea requirement. Here’s what they said:

“Feigning civilian status and then carrying out an attack with explicit intent to kill or wound the target is known as “perfidy” under the law of armed conflict, a war crime, according to legal experts.”

Again, given the absence of any proof that those on the boat ever had “confidence” that the plane was one entitled to “protection” under the law of armed conflict, and the absence of any evidence that the attacker had the specific intent “to betray that “confidence,” the Post’s definition falls short of providing a complete and accurate understanding of the relevant international law as to perfidy.

Furthermore, later in the article it quotes another legal pundit as saying using an aircraft “as an offensive platform and relying on its civilian appearance to gain the confidence of the enemy is [perfidy].”

That is misleading.  To reiterate, international law does not prohibit using an aircraft with a “civilian appearance” as an offensive platform so long as it becomes clear before the attack begins that the attacker isn’t an airplane entitled to “protection under the rules of international law applicable in armed conflict.” 

Professor Mike Schmitt points out (in a different case) that this status clarification could come just moments before the attack starts and still could be enough to defeat a perfidy allegation.

The NYT‘s “legal specialist” also made this claim:

“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.”

That statement is confusing.  Again, perfidy only exists if the attacker intends to have the adversary believe the aircraft is of a certain type, that is, one “entitled to…protection under the rules of international law applicable in armed conflict.” 

Merely because an adversary doesn’t identify an aircraft as a combatant does not, alone, mean perfidy has taken place.

Why? The fact is that not all aircraft that “look like civilian plane[s]” are entitled to “protection under the rules of international law applicable in armed conflict.”

Specifically, except for medical and certain other aircraft not relevant to our discussion, adversary planes used for hostile purposes are not entitled to such protection in an armed conflict.  Here’s the law:

“[E]ven non-military aircraft may become, ‘in the circumstances ruling at the time”…military objectives due to use, by serving a military function in the course of hostilities…Principally, non-military aircraft are transformed into military objectives when they engage in hostile acts in support of the enemy,… or otherwise make an effective contribution to the enemy military action.”

Thus, it is not perfidy to fool the adversary into thinking the plane was, for example, one of the drug traffickers’ own narco-transports or surveillance aircraft.

And, yes, the drug traffickers use lots of planes.  Those aircraft, as the NYT might put it, have paint schemes that make them “look like civilian plane[s].” (See, e.g., here and here).  Forbes relates, for example, that “Gulfstreams, as it happens, are quite popular with the smugglers….mostly the older Gulfstream II type.”

Moreover, the experts tell us that for many of these aircraft, their “main [flight] route appears to be from western Venezuela up over the Caribbean to Central America.”

At this point, it is important to note that the law of armed conflict does not require any particular paint scheme for military aircraft nor does it bar the use of planes that “look like” civilian aircraft. 

In fact, military aircraft from many countries may look like civilian aircraft, mainly because they are versions of commercial aircraft. 

For example, there is the C-12 (essentially “an ‘off-the-shelf’ Super King Air 200”); a C-32 (a “version of the Boeing 757-200 commercial intercontinental airliner”); a C-37 (“based upon Gulfstream 550”) and an array of other aircraft. All of these are used by the air forces of several other countries. 

Additionally, the Civil Reserve Air Fleet (CRAF) is composed of commercial aircraft, and they are not repainted or given military markings when put to military use even though they become lawful targets when used by the military.

Strike aircraft may also “look like” civilian planes.  For example, the OA-1K light attack aircraft (Skyraider II) is a “militarized derivative of the popular Air Tractor AT-802 crop duster,”

More to our current conversation, a commentator recently said, “we still do not have anywhere near enough information to identify the aircraft referenced in the recent reports” but he did make this intriguing observation:

“Around the time of the September 2 strike, online flight tracking data had shown a U.S. Navy P-8A Poseidon maritime patrol plane in the area, which is primarily painted white rather than a more typical military gray and is based on a version of the Boeing 737 airliner. P-8As can carry munitions in an internal bay in the rear of the fuselage, as well as under their wings. It may potentially have the ability to dispense small munitions from inside the fuselage.”

Furthermore, neither the Post nor the NYT offers any explanation as to why the military would want or need to employ perfidy in this strike.

Frankly, I find the very suggestion that the military would want or need to feign protected status in conducting this attack to be ludicrous. 

Consider that the Post presented a source who asserted that those in the boat posed “no threat” to the aircraft. Consequently, there would be no need to try to get the people on the boat to “drop their guard” because there was no guard to drop. They had no way to harm the aircraft.

Are we then to believe that the military needed the boat occupants to “drop their guard” so they wouldn’t take “evasive” measures?  Seriously, does anyone really believe an aircraft would be unable to chase a boat down?  The Coast Guard does it all the time.

Absence of evidence of intent

In any event, there is utterly no evidence of the specific intent on the part of the attacker that is indispensable to proving perfidy.

Beyond the fact that the Pentagon denied the allegation, the notion that the military had the specific intent to conduct a perfidious operation is further undermined by the NYT concession that the “aircraft’s transponder was transmitting a military tail number, meaning broadcasting or ‘squawking’ its military identity via radio signals.” 

This begs the question: why would an aircraft seeking to appear as a civilian aircraft entitled to protection under international law squawk its military identity, when it could alert hostile air forces such as Venezuela’s, which are in cahoots with the smugglers? 

Rogue air forces would not be the only concern in planning this operation.  The U.S. military would no doubt have to assume in their planning that, given the sophisticated technologies that smugglers now have available to them, they could detect an aircraft “squawking its military identity.”  (The equipment to do so is not prohibitively expensive.) 

In fact, on September 1^st—just a day before this strike—the NYT reported that the drug cartels “started importing scanners to detect government drones and hiring more people with experience using and tracking the aircraft” (Emphasis added).  Equipment that can track drones can certainly track the aircraft alleged to have been used in this instance.

In short, there are multiple—and very obvious—reasons a military aircraft intending to convince drug smugglers that it was a benign civilian plane would never be “‘squawking’ its military identity via radio signals.” Since this one was squawking, that is clear evidence that there was no intent to feign civilian status.

As mentioned above, the “people on the boat” had actual knowledge that they were being “stalked” by a “military aircraft.”

While it may be that the reporters and their legal specialists were flummoxed by the paint scheme of the aircraft, the actual principals in the incident – those on the alleged drug boat–not only did not mistake the aircraft for a civilian one, they knew it was military..if the NYT’s source is to be believed.

Specifically, in its September 10, 2025 article on the attack, the NYT said (Emphasis added):So, what we have here is not only zero evidence that the attackers were trying to fool the smugglers on board, but also zero evidence that prior to the attack any of the “people on board” mistook the aircraft for one “entitled to…protection under the rules of international law applicable in armed conflict” as the crime of perfidy requires.

Moreover, the people in the boat were”t tricked by the aircraft’s paint scheme into “failing to realize they should take evasive action.”  Quite the opposite, according to the NYT’ source they were actively taking “evasive measures” by turning around in order to try to escape.  

It is not relevant whether or not the “people on the boat” knew about the armament or capabilities of the military plane; it is enough to defeat a perfidy accusation that the adversary did not perceive the aircraft as one which was “entitled to, or [that they were] obliged to accord, protection under the rules of international law applicable in armed conflict.” 

Except for medical and certain aircraft granted safe conduct, military planes of any type or capability are just not in the category that the prohibition against perfidy seeks to protect.  

Related to the above, consider this flawed statement from the NYT article:

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

This confuses the law.  The law of armed conflict does not require the attacker to ensure their target has “equipment to pick up the signal” of the attacking aircraft.  Surprise attacks are still legal in war.

Once again, to prove perfidy, the law requires that the attacker willfully feign a protected status and do so with the requisite intent.

The “armed conflict” requirement

Finally, perfidy is only prohibited by international law if an “armed conflict” exists, something both the NYT and the Post [along with their cited “legal specialists”] have long insisted is not the case.

(Parenthetically, the NYT and other major media outlets almost never cite experts with views that conflict with that theory.  (See e.g., here, here [ADM Winnefeld], and here.)

Regardless, the predicate to even considering perfidy can only exist if the NYT and the Post are wrong about the legal status of the confrontation with the drug smugglers.

Concluding thoughts

Exactly why these eminent newspapers didn’t provide more information about the legal requirements of perfidy before implying military members committed a serious war crime is known only to the reporters and their editors. (In fairness to the legal commentators, it isn’t known exactly what they told the reporters versus what the reporters chose to include — or not include — in the stories.)

In particular, I am personally mystified as to why the NYT did not try to reconcile its recent perfidy piece with its previous article where it touted their source’s report that before the attack, the “people on board” had “spotted a military aircraft stalking” them. (Emphasis added). 

Media outlets can disavow the accuracy of their sources, but if they do, shouldn’t they inform their readers? 

Shouldn’t they have at least alerted their readers about the legal implications of the boat turning around before the attack, as it is rather convincing evidence that those on board were not acting under the belief that the plane “stalking them” was one entitled to “protection” under the law of armed conflict?  Doesn’t it demonstrate that those on the boat saw the plane as a threat? 

Unfortunately, this is the kind of episode that reinforces the public’s growing skepticism of major media coverage at a time in our nation’s history when accuracy and balance in news reporting are especially needed.  Consider that Gallup reported just last October that “Trust in Media at New Low of 28% in U.S.“

I fully support the media’s right to report as they wish.  And, of course, members of the armed forces, like everyone else, should be held accountable when they do wrong.

At the same time, I am dismayed at what seems to me to be a cottage industry that has arisen in recent months that is spring-loaded to rush to judgment about anything that might cast aspersions on the U.S. military and its soldiers, sailors, airmen, Marines, and guardians who go in harm’s way to do what the nation asks them to do.

Ask yourself: why might that be?  Rarely is any effort made to defend the troops or even to mention facts or law (or both) that might contradict an allegation of criminality. Allegations that are questionable on factual and/or legal grounds, nevertheless;ss too often serve to unfairly paint and present America’s military servicemembers as operating outside the law.

To be crystal clear, the media absolutely should question and investigate situations when appropriate, but shouldn’t they be sure they have the facts and the law straight first before writing articles that insinuate war crimes by those who serve in America’s armed forces.  

Do we need to remind the critics that those who serve in the military are real people with families and friends who suffer greatly when, despite their uncertain legal and factual validity, serious allegations are made against their loved ones, particularly in such a public manner? 

Since everyone, including especially the less than 1% of Americans who are volunteering to wear the uniform in our nation’s defense, is entitled to the presumption of innocence, shouldn’t that counsel against a rush to judgment? 

In thinking about all the criticisms so many people seem so ready to level against our troops who are making so many sacrifices, this poem by Charles M. Province comes to mind:

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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