Since September 2025, the U.S. government has carried out 36 lethal strikes against boats on the high seas, killing an estimated 125 people. While the Trump administration has invoked the need to stop purported drug-related activities of cartels and criminal gangs in the Caribbean and Pacific, other boats, participating in unrelated activities, are also at risk (as the president said, as a joke, shortly after the strike at issue).
On Oct.14, one of these attacks reportedly killed six individuals travelling from Venezuela to Trinidad. Surviving family members of two of the individuals killed, both Trinidadians, have now filed suit in the U.S. District Court for the District of Massachusetts seeking damages and accountability for the strike. According to the complaint, the decedents had been fishing off Venezuela and working on farms in Venezuela, and when attacked were returning to their homes in Trinidad and Tobago.
The lawsuit raises interesting questions on its merits, but more difficult questions concern jurisdiction – that is, whether the court will conclude it has the authority to hear the case at all. In particular, the sovereign immunity of the United States – as distinct from the immunity of particular officials, none of whom were named as defendants – will need to be addressed as a threshold question.
In this brief overview, I will describe the plaintiffs’ claims and the asserted basis for suit in U.S. court. The more difficult questions, to which I then turn, concern the problem of U.S. sovereign immunity (and its statutory waiver), along with the political question doctrine.
The Plaintiffs’ Claims and the Court’s Jurisdiction
The plaintiffs bring two claims for relief: first, for wrongful death under the Death on the High Seas Act (“DOHSA”), 46 U.S.C. § 30302, and second, for the tort of extrajudicial killing as a violation of customary international law, under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350.
The substantive basis for the plaintiffs’ complaint is fairly straightforward and has been addressed by extensive commentary, including in Just Security: namely that, given the absence of an international or non-international armed conflict under international law, the use of lethal military force is unauthorized by that body of law, rendering the strike an extrajudicial killing and murder (Complaint, paras. 7, 58-69). Additionally, if the United States were involved in a relevant armed conflict at the time of the airstrike, it is claimed that the strike at issue would nonetheless have constituted a grave breach of the 1949 Geneva Convention insofar as it directly and intentionally targeted civilians (paras. 8, 67, 70). Although this claim may depend on characteristics of each particular strike, it too has been addressed by prior commentary.
Suit based on these alleged offenses is arguably licensed by two U.S. statutes. DOHSA is directed, as its name suggests, at deaths on the high seas, and allows personal representatives of a decedent to bring a civil admiralty action against the person or vessel responsible. For example, a district court held (in the course of a complex proceeding, later summed in part by the Fourth Circuit) that in an action against the Republic of Sudan, DOHSA provided a cause of action for that state’s bombing of a U.S. warship in Yemen. A suit would also be consistent, the complaint in the present case suggests, with the jurisdiction of federal courts over civil admiralty and maritime cases, which encompasses a number of torts occurring on the high seas.
In addition, the complaint invokes the ATS, which allows non-citizens to sue in U.S. court for torts in violation of the law of nations or a treaty of the United States. Despite case law narrowing applicability of the ATS as such in recent decades, extrajudicial killing and grave breaches are plausibly among the torts still encompassed by the statute. It is worth noting that the nature of the plaintiffs’ claims—alleging wrongdoing by U.S. officials, presumably directing the alleged conduct from within the United States, albeit with effect on the high seas—sidesteps Supreme Court precedent limiting suits against foreign corporations and, it seems likely, cases barring extraterritorial application of the ATS. If so, this means the complaint avoids the most significant barriers erected since the Supreme Court’s decision in Sosa v. Alvarez-Machain, which left the “door” to recovery under the ATS “still ajar subject to vigilant doorkeeping.”
Sovereign Immunity
While this suit may not face (some of) the same obstacles as other ATS litigation, the tradeoff is that it must directly confront the sovereign immunity of the United States, which protects the U.S. federal government from being sued in U.S. courts absent express, statutory consent (or “waiver,” as it is generally termed). Sovereign immunity is not addressed by the ATS nor, for that matter, by DOHSA or general admiralty and maritime law. Any waivers must be found elsewhere, and even where identified, they are strictly construed.
The usual recourse for tort suits against the United States is the Federal Tort Claims Act (FTCA), which waives sovereign immunity for certain kinds of claims, subject to various exceptions, but the plaintiffs do not invoke that. This may be because the FTCA specifically provides that it does not extend to claims for which a remedy is provided for claims or suits in admiralty against the United States, which directly invites the statutory basis that the plaintiffs do invoke: the Suits in Admiralty Act (SAA or SIAA), 46 U.S.C. § 30903(a). This provides that a civil in personem action may be brought against the United States “[i]n a case in which, if a vessel were privately owned or operated, or if cargo were privately owned or possessed, or if a private person or property were involved, a civil action in admiralty could be maintained . . .”
The SIAA’s text, viewed on its own, may well contemplate suit against the United States in the circumstances alleged by the complaint, insofar as a civil action in admiralty might be maintained when a private person destroyed another’s vessel on the high seas by drone or similar means. Thus it was long ago held that the SIAA, not the FTCA, applied when a Navy jet accidentally discharged a Sidewinder missile and destroyed a ship in navigable waters.
Nonetheless, the United States can be expected to invoke several arguments that would narrow that waiver of immunity. The most likely is the FTCA’s “discretionary function” exception, which is intended to protect against judicial second-guessing of legislative and administrative decisions based in social, economic, and political policy. It should be stressed that this exception does not appear in the SIAA. Nonetheless, a number of circuits—including the First Circuit, where this action was filed—have imported it, reasoning that it is derived from fundamental separation-of-powers concerns and limits the waiver in the SIAA as well. The FTCA’s discretionary function exception is frequently litigated, broadly applied, and rather unpredictable, but it has been applied (for example) to highly contestable decisions such as field-testing Agent Orange.
Because the discretionary function exception requires examining whether the conduct at issue is discretionary, involving an element of judgment or choice, and whether that judgment or choice is of the kind the exception was designed to shield, plaintiffs will presumably argue that the exception is inapplicable because relevant law specifically prescribed how the relevant government officials could act. To be sure, a court may hesitate to consider the conduct alleged here to be nondiscretionary solely on the basis of international law prohibiting extrajudicial killing, but it is worth recalling that–absent a permissible defense–the complained-of conduct could be addressed by U.S. statutes as felony murder, which is not conduct typically confined to judgment or choice. The applicability of these domestic prohibitions, and the potential relevance of OLC legal advice, have been examined elsewhere.
Courts have disagreed about whether other exceptions to the FTCA’s waiver of sovereign immunity may be imported into the SIAA based on a similar conceit. Presumably the United States would also like to borrow the FTCA’s exception for “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” In Koohi v. United States, which involved a lawsuit brought following the accidental and tragic attack by a U.S. naval cruiser against an Iranian passenger plane, the Ninth Circuit noted that it would make little sense not to import an exception relating to the Navy and Coast Guard into the SIAA. Plaintiffs may well argue, consistent with their view of the merits, that their claim does not actually arise “during time of war.” Koohi indicates that a court applying the exception will not require a formal declaration or authorization of war, and suggests an inclination to apply it more broadly to combatant activities. Even so, its conclusion–that the exception applied during the so-called “tanker war” with Iran, when “United States armed forces engage in an organized series of hostile encounters on a significant scale with the military forces of another nation”–does not readily apply to the boat strikes on the Caribbean and Pacific.
Political Question Doctrine
Beyond these and other issues concerning whether the United States has waived its sovereign immunity, the United States may well raise a political question defense. This doctrine, which is also understood to be jurisdictional, is a narrow exception applicable when a court must decide a political question not suitable for judicial resolution. While the doctrine is frequently invoked in cases involving foreign relations and foreign policy, it does not mean that courts must stay away from all such matters. Thus, for example, the Supreme Court has rejected applying the doctrine when it concluded that a case touching on foreign relations simply involved interpreting a statute (in Japan Whaling Ass’n v. Am. Cetacean Soc’y) or determining whether a statute was unconstitutional (in Zivotofsky ex rel. Zivotofsky v. Clinton).
Whether a missile strike took place during an armed conflict, or amounted to an extrajudicial killing, is undoubtedly sensitive, and lower courts have found the political question doctrine to be an appealing way to avoid difficult cases that appeared to challenge military conduct—like the decision to bomb a pharmaceutical plant in Sudan that the en banc D.C. Circuit concluded (in El-Shifa Pharm. Indus. Co. v. United States) would impermissibly require that it “assess the merits of the President’s decision to launch an attack on a foreign target.” On the one hand, the aforementioned Koohi decision held that the plaintiffs’ action (though barred by sovereign immunity) was justiciable, stressing that while the conduct was part of an authorized military action, the action itself only sought damages and posed less risk of conflict with the executive branch–a conclusion which may be more easily reached given that the attack in question was an acknowledged mistake. On the other hand, the Fourth Circuit upheld (in Wu Tien Li-Shou v. United States) dismissal of a tort action brought under the Public Vessels Act (PVA), 46 U.S.C. § 31101 et seq., the SIAA, and the DOHSA concerning an attack during a NATO counter-piracy operation on a hijacked fishing vessel that resulted in the killing of the hostage fisherman and destruction of his ship, given concerns that the issue would involve the judiciary in strategic or tactical decision-making—and approved dismissal under the discretionary function exception as well.
Political question doctrine cases are not always predictable along conventional lines–witness, for example, that in El-Shifa, then-Judge Kavanaugh supported dismissal for lack of a cognizable cause of action, but disagreed with the conclusion that the action presented a nonjusticiable political question, and worried that the majority’s approach to alleged statutory violations would systematically expand executive power.
One relatively recent case certain to engage both plaintiffs and the government is Weir v. United States, decided in 2021 by the U.S. District Court for the District of Columbia. In that suit, Jamaican fishermen asserted claims against the United States under the SIAA and the PVA based on the seizure and destruction of their boats and their detention on Coast Guard ships. The government moved to dismiss under the political question doctrine, and the court delivered what amounted to a split verdict. It held that tort claims challenging the conditions of detention did not pose a political question. (It was on this basis, presumably, that the plaintiff reportedly received a financial settlement.) However, the district court held that claims regarding whether bringing the fishermen to the United States violated treaty obligations did pose such questions, as did claims for forced disappearances and prolonged arbitrary detention, to the extent they involved second-guessing foreign policy choices and evaluating diplomatic choices made in dealings with Jamaica.
Plaintiffs have good reason to embrace parts of this decision’s reasoning (for example, the court’s concerns about identifying limits to the political question doctrine, and its emphasis that the Coast Guard was purportedly enforcing U.S. drug laws when it acted) and to try to distinguish others (like the court’s emphasis on how a claim involved intruding into diplomatic decision-making). And a proper political question analysis focuses acutely on the precise questions posed by the claims concerned. Still, the Weir court emphasized the relative justiciability of tort claims “arising from law enforcement operations aimed at drug trafficking” as against “tort claims arising from military or foreign intelligence operations,” which are more prone to pose political questions. That distinction is hardly outcome-determinative, but it may seem particularly painful to those who would insist that the present campaign against drug trafficking is one that the government should have (and indeed, only lawfully could have) conducted as a law enforcement mission from the beginning.
FEATURED IMAGE: The USS Gravely warship is seen at a distance off the coast of Port of Spain on October 26, 2025, as fishermen fish in the Trinidadian capital. The US warship visited Trinidad and Tobago for joint exercises near the coast of Venezuela. (Photo by Martin BERNETTI / AFP via Getty Images)
Great Job Edward Swaine & the Team @ Just Security Source link for sharing this story.
