The American Civil Liberties Union has a rule about impeachment: it doesn’t take sides. On Monday, it sent every member of the House a letter about Secretary of Defense Pete Hegseth that got about as close to breaking that rule as you can without typing the words “vote yes.”
The letter, signed by Chris Anders, director of Democracy & Technology, and Kia Hamadanchy, senior policy counsel, opens with the obligatory throat-clearing (“Although the ACLU generally does not take positions on the appointment, impeachment, or removal of government officials…”). Then it spends the rest of its pages explaining that the military’s lethal strikes on small boats in the Caribbean and eastern Pacific were “simply murders, authorized directly by Secretary Hegseth.”
That’s… not a neutral background memo.
The timing wasn’t an accident. Rep. Thomas Massie — the Kentucky Republican who lost his primary to a Trump-backed challenger and now apparently has nothing left to lose — filed eight articles of impeachment against Hegseth. The fifth covers the boat strikes as extrajudicial killings. The others cover the Iran war, the Maduro operation, and the retaliation against Sen. Mark Kelly, which the ACLU says also deserve Congress’s attention.
Well, about that.
On Tuesday, the House voted 211-204 to refer the articles to the Judiciary Committee, which is where impeachment resolutions go to die quietly in a drawer. Hegseth spent Tuesday morning calling the whole thing a “farce” and a “political spectacle.”
Here’s the record the ACLU put in front of Congress. The U.S. has carried out at least 72 strikes in about a year and killed at least 244 people. There’s no declared armed conflict and no congressional authorization, so the laws of war the administration keeps citing don’t apply. That makes the killings murders, and the letter puts the responsibility at the top: “Secretary Hegseth bears direct operational authority and command responsibility for this lethal campaign.” That includes the September 2, 2025 “double tap.” According to The Washington Post, that one followed Hegseth’s spoken order to “kill everybody,” and it killed two survivors clinging to the wreckage. Hegseth’s defense was that he watched the first strike but didn’t “stick around” for the second.
The administration’s real answer has always been a secret Office of Legal Counsel memo, signed by Elliot Gaiser who has now been tapped for a lifetime appointment on the federal bench. It reportedly declares the strikes lawful and protects the people who carried them out from future prosecution. The administration has spent more than a year citing that memo while refusing to let anyone read it, which is why there are now lawsuits.
The ACLU, the Center for Constitutional Rights, and the New York Civil Liberties Union sued for the memo under FOIA in the Southern District of New York last December. In September, U.S. District Judge Paul Engelmayer issued a 66-page ruling rejecting most of the government’s privilege claims. He held that the Department of Defense had adopted the memo’s reasoning as binding, so it can’t be kept as secret law. He also ordered the government to hand the memo over so he could read it himself:
The agency defendants cannot claim surprise from this consequence of the executive branch’s repeated public statements embracing the OLC memo—and it only—as setting out the legal parameters for the boat strikes.
In other words: you don’t get to wave the memo around as your legal shield for a year and then call it confidential advice. The government asked him to reconsider. On October 27, he said no, and ordered it to provide more information about who has reviewed the memo.
Then there’s Burnley v. United States. The ACLU, the ACLU of Massachusetts, and CCR filed it in federal court in Massachusetts in January on behalf of the families of Chad Joseph, 26, and Rishi Samaroo, 41. Both men were killed in an October 14, 2025 strike while heading home to Las Cuevas, Trinidad, after fishing and farm work in Venezuela. The suit relies on the Death on the High Seas Act and the Alien Tort Statute, and calls the killings “simply murders, ordered by individuals at the highest levels of government.”
So the House was a few votes away from having to debate whether 244 people were lawfully killed, and it chose the committee drawer instead. That leaves the question with a FOIA lawsuit in Manhattan and a federal court in Boston. The House decided it didn’t need to see the legal justification for the boat strikes (or further info on the other articles of impeachment), but Judge Engelmayer still does.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post The ACLU Doesn’t Do Impeachment, But It Had Some Thoughts About Pete Hegseth appeared first on Above the Law.
The American Civil Liberties Union has a rule about impeachment: it doesn’t take sides. On Monday, it sent every member of the House a letter about Secretary of Defense Pete Hegseth that got about as close to breaking that rule as you can without typing the words “vote yes.”
The letter, signed by Chris Anders, director of Democracy & Technology, and Kia Hamadanchy, senior policy counsel, opens with the obligatory throat-clearing (“Although the ACLU generally does not take positions on the appointment, impeachment, or removal of government officials…”). Then it spends the rest of its pages explaining that the military’s lethal strikes on small boats in the Caribbean and eastern Pacific were “simply murders, authorized directly by Secretary Hegseth.”
That’s… not a neutral background memo.
The timing wasn’t an accident. Rep. Thomas Massie — the Kentucky Republican who lost his primary to a Trump-backed challenger and now apparently has nothing left to lose — filed eight articles of impeachment against Hegseth. The fifth covers the boat strikes as extrajudicial killings. The others cover the Iran war, the Maduro operation, and the retaliation against Sen. Mark Kelly, which the ACLU says also deserve Congress’s attention.
Well, about that.
On Tuesday, the House voted 211-204 to refer the articles to the Judiciary Committee, which is where impeachment resolutions go to die quietly in a drawer. Hegseth spent Tuesday morning calling the whole thing a “farce” and a “political spectacle.”
Here’s the record the ACLU put in front of Congress. The U.S. has carried out at least 72 strikes in about a year and killed at least 244 people. There’s no declared armed conflict and no congressional authorization, so the laws of war the administration keeps citing don’t apply. That makes the killings murders, and the letter puts the responsibility at the top: “Secretary Hegseth bears direct operational authority and command responsibility for this lethal campaign.” That includes the September 2, 2025 “double tap.” According to The Washington Post, that one followed Hegseth’s spoken order to “kill everybody,” and it killed two survivors clinging to the wreckage. Hegseth’s defense was that he watched the first strike but didn’t “stick around” for the second.
The administration’s real answer has always been a secret Office of Legal Counsel memo, signed by Elliot Gaiser who has now been tapped for a lifetime appointment on the federal bench. It reportedly declares the strikes lawful and protects the people who carried them out from future prosecution. The administration has spent more than a year citing that memo while refusing to let anyone read it, which is why there are now lawsuits.
The ACLU, the Center for Constitutional Rights, and the New York Civil Liberties Union sued for the memo under FOIA in the Southern District of New York last December. In September, U.S. District Judge Paul Engelmayer issued a 66-page ruling rejecting most of the government’s privilege claims. He held that the Department of Defense had adopted the memo’s reasoning as binding, so it can’t be kept as secret law. He also ordered the government to hand the memo over so he could read it himself:
The agency defendants cannot claim surprise from this consequence of the executive branch’s repeated public statements embracing the OLC memo—and it only—as setting out the legal parameters for the boat strikes.
In other words: you don’t get to wave the memo around as your legal shield for a year and then call it confidential advice. The government asked him to reconsider. On October 27, he said no, and ordered it to provide more information about who has reviewed the memo.
Then there’s Burnley v. United States. The ACLU, the ACLU of Massachusetts, and CCR filed it in federal court in Massachusetts in January on behalf of the families of Chad Joseph, 26, and Rishi Samaroo, 41. Both men were killed in an October 14, 2025 strike while heading home to Las Cuevas, Trinidad, after fishing and farm work in Venezuela. The suit relies on the Death on the High Seas Act and the Alien Tort Statute, and calls the killings “simply murders, ordered by individuals at the highest levels of government.”
So the House was a few votes away from having to debate whether 244 people were lawfully killed, and it chose the committee drawer instead. That leaves the question with a FOIA lawsuit in Manhattan and a federal court in Boston. The House decided it didn’t need to see the legal justification for the boat strikes (or further info on the other articles of impeachment), but Judge Engelmayer still does.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
