US President Donald Trump is claiming the power to shift maritime counterdrug efforts from law enforcement rules to wartime rules. Photo / Tierney L. Cross, The New York Times
By ordering the United States military to summarily kill a group of people aboard what he said was a drug-smuggling boat, President Donald Trump used the military in a way that had no clear legal precedent or basis, according to specialists in the laws of war and executive power.
Trump is claiming the power to shift maritime counterdrug efforts from law enforcement rules to wartime rules.
The police arrest criminal suspects for prosecution and cannot instead simply gun suspects down, except in rare circumstances where they pose an imminent threat to someone.
By contrast, in armed conflicts, troops can lawfully kill enemy combatants on sight.
Because killing people is so extreme — and doing it without due process risks killing the wrong people by mistake — the question of which rules apply is not simply a matter of policy choice.
Domestic and international law both set standards constraining when presidents and nations can lawfully use wartime force.
After breaking new ground by labelling drug cartels as “terrorists”, the US President is now redefining the peacetime criminal problem of drug-trafficking as an armed conflict, and telling the US military to treat even suspected low-level drug smugglers as combatants.
But the trafficking of an illegal consumer product is not a capital offence, and Congress has not authorised armed conflict against cartels.
That raises the question of whether Trump has legitimate authority to tell the military to summarily kill people it suspects are smuggling drugs — and whether the Administration allowed career military lawyers to weigh in.
“It’s difficult to imagine how any lawyers inside the Pentagon could have arrived at a conclusion that this was legal rather than the very definition of murder under international law rules that the Defence Department has long accepted,” said Ryan Goodman, a New York University law professor who worked as a Pentagon lawyer in 2015 and 2016.
Anna Kelly, a White House spokesperson, emphasised in a statement yesterday that the strike took place in international waters and did not put American troops at risk.
She said that Trump had directed the attack in “defence of vital US national interests and in the collective self-defence of other nations who have long suffered due to the narcotics trafficking and violent cartel activities of such organisations.”
“The strike was fully consistent with the law of armed conflict,” Kelly said.
She did not respond to follow-up questions, including whether other countries have asked the US to use lethal military force to help defend them from drug-trafficking.
The global war against al-Qaeda and its progeny has raised novel legal issues, including questions about when the US can use airstrikes to target terrorism suspects — including an American citizen — operating from lawless areas where they could not be arrested, like rural Yemen and Somalia.
Even former officials who signed off on controversial counterterrorism drone strikes expressed scepticism over what the Trump Administration was doing.
Jeh Johnson, who served as the Pentagon general counsel and Homeland Security Secretary in the Obama Administration, noted that Congress had not authorised force against cartels, and that the Coast Guard and Navy had long interdicted suspected drug-smuggling boats.
“Here the President appears to be invoking his amorphous constitutional authority to kill low-level drug couriers on the high seas, with no due process, arrest or trial,” he said.
“Viewed in isolation, labelling drug cartels ‘terrorists’ and invoking the ‘national interests’ to use the US military to summarily kill low-level drug couriers is pretty extreme.”
The strike has escalated Trump’s use of military power in ways that were previously understood to be off-limits.
He has also invoked a wartime deportation law against suspected members of the same Venezuelan gang he said was targeted in the strike on the boat.
He has sent migrants to the US military prison at Guantanamo Bay, Cuba, and deployed federal troops to the streets of American cities over the objections of local and state elected leaders.
On Wednesday, a federal judge ruled that the Trump Administration was illegally using troops it sent to Los Angeles to protect immigration agents from protesters.
The Administration has appealed that ruling, and Trump declared this week that he intended to expand his use of troops to crack down on crime in Washington to other cities, including Chicago and New Orleans.
Trump has long wanted not just to make greater use of the military on domestic soil but to take much harsher steps against drug dealers, including saying they should get the death penalty.
In his first term, he praised then-President Rodrigo Duterte of the Philippines for doing an “unbelievable job on the drug problem” in the nation where Duterte’s Government had sanctioned gunning down suspected drug dealers in the streets.
Duterte was arrested this year and is facing charges of crimes against humanity at the International Criminal Court over his drug war.
Earlier this northern summer, Trump signed a still-secret order directing the Pentagon to begin using military force against certain Latin American drug cartels his Administration has deemed terrorist organisations.
In the aftermath of the first such operation this week, he and two top Administration officials — Defence Secretary Pete Hegseth and Secretary of State Marco Rubio, who also serves as the national security adviser — promised to keep doing it.
One set of issues raised by this policy centres on the facts.
Using lethal force as a first resort means relying on intelligence to determine whether the people in sight are, in fact, drug traffickers.
The counterterrorism drone war was dogged by blowback from mistakes in which the military or CIA killed innocent people it mistakenly thought were terrorists.
Many details about the strike on Wednesday remain unclear.
The Administration has asserted that the boat was in international waters and carrying 11 members of the Tren de Aragua gang and a shipment of drugs.
It has not said precisely where the strike took place or whether the boat was flagged to any country. If it knows the names of the dead people, it has not released them, either.
Hegseth insisted yesterday that the government “knew exactly who” they were and “exactly what they were doing.” And Trump said: “we have tapes of them speaking”.
But there are reasons for caution.
Trump has claimed that Venezuela’s Government controls Tren de Aragua even though the US intelligence community does not think that is true.
Trump and Rubio made conflicting remarks about the vessel’s intended destination, and sceptics have expressed doubts that 11 people would be needed to crew such a small boat.
“Do the people in that boat off Venezuela constitute enemy fighters?” said Brian Finucane, a former State Department lawyer under administrations of both parties who is a specialist in law of war issues.
“And what facts are you going to look at to make that assessment?”
Regardless of who the dead were in this specific case, he added, history shows that a policy of using force against drug smugglers risks disasters based on faulty intelligence.
For example, in a 2001 incident, the CIA told the Peruvian Government that a plane was smuggling drugs, and its Air Force shot it down, only to find out that it had instead killed American missionaries.
Today, two armed Venezuelan F-16 fighter jets flew over the US Navy guided-missile destroyer Jason Dunham in the southern Caribbean in a show of force, the latest escalation of tensions between the Trump Administration and President Nicolas Maduro of Venezuela, a Defence Department official said. The US warship did not engage, the official said.
There is also a treacherous set of legal issues.
As a matter of domestic law, a long-standing executive order bars assassinations, and the Uniform Code of Military Justice bars service members from committing unlawful killings.
As a matter of international law, the Pentagon has accepted that “murder” is prohibited everywhere, as its military operational law handbook says.
Those limits apply in situations governed by peacetime and human rights law, in which governments address threats using law enforcement rules. They do not restrict the killing of a legitimate military target in an armed conflict.
The White House statement suggests that it considers this week’s operation — and any like it to come — to be covered by the laws of war.
The statement appears to gesture at Justice Department opinions that presidents have constitutional authority, without congressional permission, to order limited military strikes in the national interest.
If wartime rules do apply, that raises a different problem. It is a war crime for troops to deliberately kill civilians — even criminals — who are not directly participating in hostilities.
Whether Trump is directing service members to commit war crimes, then, turns on whether he has legitimate power to unilaterally redefine drug smugglers as combatants.
Martin Lederman, a Georgetown University law professor who helped write legal memos on counterterrorism drone strikes as a Justice Department official in the Obama Administration, said that interpreting the law as allowing Trump to kill people who are not attacking the US would require an “alarming” expansion of presidential power.
“Even if it were true they were ‘terrorists,’ the president doesn’t have authority to go around killing terrorists anywhere in the world, let alone to kill drug smugglers,” he said.
“The targets of lethal force would have to either be in an armed conflict with us or otherwise be threatening a use of force that would justify self-defence.”
This article originally appeared in The New York Times.
Written by: Charlie Savage
Photograph by: Tierney L. Cross
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