Two men clung to what remained of their capsized boat. One moment, they had been cutting through the warm waters of the Caribbean Sea at a rapid clip. The next, their vessel exploded and was engulfed in fire and shrouded in smoke. The men were shipwrecked, helpless or clearly in distress, six witnesses who saw video of the attack say. The survivors pulled themselves onto the overturned hull as an American aircraft filmed them from above. The men waved their arms.

Minutes ticked by. Ten. Twenty. Thirty. As the men bobbed along, drifting with the current, for some 45 minutes, Adm. Frank Bradley — then the head of Joint Special Operations Command — sought guidance from his top legal adviser. At Fort Bragg, North Carolina, on September 2, he turned to Col. Cara Hamaguchi, the staff judge advocate at the secretive JSOC, The Intercept has learned.

Could the U.S. military legally attack them again?

How exactly she responded is not known. But Bradley, according to a lawmaker who spoke on the condition of anonymity to discuss a classified briefing, said that the JSOC staff judge advocate deemed a follow-up strike lawful. In the briefing, Bradley said no one in the room voiced objections before the survivors were killed, according to the lawmaker.

Five people familiar with briefings given by Bradley, including the lawmaker who viewed the video, said that, logically, the survivors must have been waving at the U.S. aircraft flying above them. All interpreted the actions of the men as signaling for help, rescue, or surrender.

“Obviously, we don’t know what they were saying or thinking,” one of the sources said, “but any reasonable person would assume that they saw the aircraft and were signaling either: don’t shoot or help us.”

Raising both hands is a universal sign of surrender for isolated members of armed forces. Under international law, those who surrender — like those who are shipwrecked – are considered hors de combat, the French term for those out of combat, and may not be attacked. The Pentagon’s Law of War Manual is explicit in this regard. “Persons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack,” reads the guide.

But that’s not how Bradley — now the chief of Special Operations Command, or SOCOM — saw it. Bradley declined to comment to The Intercept, but a U.S. official familiar with his thinking said he did not perceive their waving to be a “two-arm surrender.”

Some 45 minutes after the men had been plunged into the water, a second missile screamed down from the sky on Bradley’s order. Two more missiles followed in rapid succession, sinking the remnants of the boat.

Nothing remained of the men.

Special Operations Command refused to make Hamaguchi available for an interview and declined to answer questions about Hamaguchi’s legal guidance or Bradley’s statements to the member of Congress.

“ He did inform them that during the strike he sought advice from his lawyer and then made a decision.”

“We are not going to comment on what Admiral Bradley told law makers in a classified hearing. He did inform them that during the strike he sought advice from his lawyer and then made a decision,” Col. Allie Weiskopf, the director of public affairs at Special Operations Command, told The Intercept. Multiple military officials attempted to dissuade The Intercept from naming Hamaguchi in this article, citing safety concerns.

Four former judge advocates — better known in the military as JAGs, as they are lawyers within the judge advocate general’s corps — blasted the supposed defense that the........

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