Defending the Summary Execution of Suspected Drug Smugglers, Trump Declares an 'Armed Conflict'

The president thinks he can transform murder into self-defense by executive fiat.

This week, President Donald Trump sought to justify his new policy of summarily executing suspected drug smugglers by declaring that his targets are "unlawful combatants" in an "armed conflict" with the United States. But that terminology, which Trump deployed in a notice to Congress, does not change the reality that he has authorized the military murder of criminal suspects who pose no immediate threat of violence.

So far, Trump has ordered three attacks on speedboats in the Caribbean Sea that he said were carrying illegal drugs, killing a total of 17 people. The first attack was a September 2 drone strike that killed 11 people on a boat that reportedly "appeared to have turned around before the attack started because the people onboard had apparently spotted a military aircraft stalking it." On September 15, U.S. forces blew up another speedboat in the Caribbean, killing three people whom Trump described as "confirmed narcoterrorists from Venezuela." Four days later, Trump announced a third attack that he said killed three people "affiliated with a Designated Terrorist Organization" who were "conducting narcotrafficking."

Contrary to Trump's implication, that designation does not turn murder into self-defense. "The State Department designation merely triggers the government's ability to implement asset controls and other economic sanctions under the International Emergency Economic Powers Act (IEEPA), the Immigration and Nationality Act (INA) and other statutes," Georgetown law professor Marty Lederman noted after the first attack on a suspected drug boat. "It has nothing to do with authorizing [the Defense Department] to engage in targeted killings…which is why the U.S. military doesn't go around killing members of all designated Foreign Terrorist Organizations."

According to White House spokeswoman Anna Kelly, Trump's literalization of the war on drugs is fully consistent with international law. "The president acted in line with the law of armed conflict to protect our country from those trying to bring deadly poison to our shores," she told The New York Times this week. "He is delivering on his promise to take on the cartels and eliminate these national security threats from murdering more Americans."

That framing is logically, morally, and legally nonsensical. The truth is that Americans like to consume psychoactive substances that legislators have deemed intolerable, and criminal organizations are happy to profit from that demand. The fact that Americans who use illegal drugs sometimes die as a result—a hazard magnified by the prohibition policy that Trump is so eager to enforce—does not transform the people who supply those drugs into murderers.

If it did, alcohol producers and distributors, who supply a product implicated in an estimated 178,000 deaths a year in the United States, would likewise be guilty of murder. And by Trump's logic, they would be subject to the death penalty based on nothing more than the allegation that they were involved in the alcohol trade.

There is obviously something wrong with an argument that would justify the execution of brewers, vintners, distillers, liquor store owners, and bartenders based on their complicity in alcohol-related deaths. Even during national alcohol prohibition, the government did not treat bootleggers as murderers, even when they were smuggling booze into the United States, which according to Trump's reasoning posed a deadly threat to "national security."

The current drug prohibition regime is more severe in several respects, but it still deploys the death penalty only in rare cases. Federal law authorizes the execution of people who commit murder in the course of drug trafficking. It also notionally allows the death penalty for drug trafficking involving very large quantities: at least twice the amounts that trigger a mandatory life sentence, which are in turn 300 times the amounts that trigger a mandatory 10-year sentence.

Those death-penalty thresholds include 600 grams of LSD, three kilograms of methamphetamine, six kilograms of PCP, 60 kilograms of heroin, 300 kilograms of cocaine, and 60,000 kilograms of marijuana. But no death penalties have been imposed under these provisions, and it is not clear whether they would be constitutional.

In the 2008 case Kennedy v. Louisiana, the Supreme Court held that the Eighth Amendment's ban on "cruel and unusual punishment" precludes execution except for "crimes that take the life of the victim." But the Court added that it was not addressing "crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State."

Trump has made no secret of his desire to execute drug dealers, and he thinks he has found a legal way of doing that without seeking new legislation or going to the trouble of arresting and trying suspects. The trick, he thinks, is to equate drug smuggling with violent aggression, define drug interdiction as an "armed conflict," and treat suspected drug smugglers as "unlawful combatants" who can be killed at will, regardless of whether they are actually engaged in violence.

The Bush and Obama administrations tried something similar with alleged terrorists, which provoked considerable debate about the scope of the government's asserted license to kill, especially as it pertained to U.S. citizens on U.S. soil. But in that case, Congress had authorized military action against Al Qaeda and its allies, and the targets were accused of plotting literal attacks on Americans.

In this case, by contrast, there is no such congressional authorization, and Trump deemed his targets worthy of assassination simply because they allegedly were trying to supply Americans with politically disfavored intoxicants. Calling them "narcoterrorists," as the Trump administration habitually does, cannot supply a moral or legal justification for killing them in cold blood without anything resembling due process.

Drug cartels "illegally and directly cause the deaths of tens of thousands of American citizens each year," Trump's notice to Congress says. The president therefore has "determined" that drug cartels are "nonstate armed groups" whose actions "constitute an armed attack against the United States," the notice adds. "Based upon the cumulative effects of these hostile acts against the citizens and interests of the United States and friendly foreign nations, the president determined that the United States is in a noninternational armed conflict with these designated terrorist organizations."

Geoffrey Corn, formerly the U.S. Army's senior adviser on the law of war, told the Times that Trump has not established the "hostilities" required for an "armed conflict" against the United States because (as the Times dryly puts it) "selling a dangerous product is different from an armed attack." In Corn's view, "This is not stretching the envelope. This is shredding it. This is tearing it apart."

Former State Department lawyer Brian Finucane is "not surprised that the administration may have settled on such a theory to legally backfill their operations." But among other problems with that theory, he said, "it is far from clear that whoever they are targeting is an organized armed group such that the U.S. could be in a [noninternational armed conflict] with it."

Cardozo Law School professor Gabor Rona calls Trump's policy "utterly unprecedented." If the people whose deaths Trump ordered "were running illicit drugs destined for the United States, the proper—and entirely feasible and precedented—response would have been interdiction, arrest, and trial," Rona writes. "The Trump administration's summary execution/targeted killing of suspected drug dealers, by contrast, is utterly without precedent in international law. In fact, there is precedent for considering such attacks, when committed on a widespread or systematic basis, to be a crime against humanity. Former Philippine President Rodrigo Duterte is currently facing charges in the International Criminal Court for exactly that reason."

Trump, however, is a big fan of Duterte, who likened himself to Adolf Hitler while urging the murder of drug offenders. During his first term, Trump bragged about his "great relationship" with Duterte, who he said was doing "a great job" in tackling substance abuse. Now Trump seems bent on copying Duterte's bloodthirsty example.