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.”