The Constitution Does Not Allow the President To Unilaterally Blow Suspected Drug Smugglers to Smithereens
If the Trump administration wants to use military power, it should seek authorization from Congress, says Sen. Rand Paul.
Somewhere off the coast of Venezuela, a speedboat with 11 people on board is blown to smithereens. Vice President J.D. Vance announces that "killing cartel members who poison our fellow citizens is the highest and best use of our military."
When challenged that killing citizens without due process is a war crime, the vice president responded that he "didn't give a shit."
Sometimes in fits of anger, loud voices will say they don't care about niceties such as due process—they just want to kill bad guys. For a brief moment, all of us may share that anger and may even embrace revenge or retribution.
But over 20,000 people are murdered in the U.S. each year, and yet somehow we find a way to a dispassionate dispensation of justice that includes legal representation for the accused and jury trial.
Why? Because sometimes the accused is actually not guilty.
As passions subside, a civilized people should ask: To be clear, the people bombed to smithereens were guilty, right?
If anyone gave a you-know-what about justice, perhaps those in charge of deciding whom to kill might let us know their names, present proof of their guilt, and show evidence of their crimes.
The administration has maintained that the people blown to smithereens were members of Tren de Aragua and therefore narcoterrorists.
Certainly, then, if we know they belong to a particular gang, then someone must surely have known their names before they were blown to smithereens?
At the very least, the government should explain how the gang came to be labelled as terrorists. U.S. law defines a terrorist as someone who uses "premeditated, politically motivated violence…against non-combatants." Since the U.S. policy is now to blow people to smithereens if they are suspected of being in a terrorist gang, then maybe someone could take the time to explain the evidence of their terrorism?
Critics of this whole terrorist labelling charade, such as Matthew Petti at Reason, explain that: "In practice, that means that a 'terrorist' is whoever the executive branch decides to label one."
While no law dictates such, once people are labelled as terrorists, they appear to no longer be eligible for any sort of due process.
The blow-them-to-smithereens crowd, at this point, will loudly voice their opinion that people in international waters whom we label as terrorists deserve no due process. Vice President Vance asserts: "There are people who are bringing—literal terrorists—who are bringing deadly drugs into our country."
Which, of course, raises the questions:
- Who labelled them and with what evidence?
- What are their names, and what specifically shows their membership and guilt?
The blow-them-to-smithereens crowd also conveniently ignores the fact that death is generally not the penalty for drug smuggling.
The mindless trolls that occupy much of the internet whine that such questions show weakness or commiseration with drug pushers who are killing our kids. A ludicrous assertion to most sentient humans, but one I fear requires a response.
International law and norms have always granted due process to individuals on the high seas not actively involved in combat. U.S. maritime laws explain in detail the level of force and the escalation of force allowed in the interdiction of drugs.
Hundreds of ships are stopped and searched. The blow-them-to-smithereens crowd might stop to ponder that a good percentage of the ships searched actually turn out not to be drug smugglers.
Coast Guard statistics show that about one in four interdictions finds no drugs. So far, the administration has blown up four boats suspected of drug smuggling. Statistically speaking, there's a good chance that one of these boats may not have had any drugs on board.
If the U.S. policy is to blow all suspected ships to smithereens, should that policy really be extolled as "the highest and best use of our military?"
Jake Romm puts the dilemma of whom to designate as a terrorist into sharp relief: "The hollowness and malleability of the term [terrorism] means that it can be applied to groups regardless of their actual conduct and regardless of their actual ideology. It admits only a circular definition…that a terrorist is someone who carries out terrorist acts, and a terrorist act is violence carried out by a terrorist. Conversely, if someone is killed, it is because they are a terrorist, because to be a terrorist means to be killable."
Few independent legal scholars argue the strikes are legal. Even John Yoo—a former deputy assistant attorney general under President George W. Bush, who infamously authored the Bush administration's legal justification for "enhanced interrogation techniques"—has criticized the Trump administration's justification for the strikes, saying: "There has to be a line between crime and war. We can't just consider anything that harms the country to be a matter for the military. Because that could potentially include every crime."
Jon Duffy, a retired Navy Captain, eloquently summarizes our current moment: "A republic that allows its leaders to kill without law, to wage war without strategy, and to deploy troops without limit is a republic in deep peril. Congress will not stop it. The courts will not stop it. That leaves those sworn not to a man, but to the Constitution."
Congress must not allow the executive branch to become judge, jury, and executioner. President Thomas Jefferson understood the framers' intention that the president defer to Congress on matters of offensive war. That's why Jefferson, when faced with the belligerence of the Barbary pirates in 1801, recognized that he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense."
Jefferson wanted the authority to act offensively against the pirates, but he respected the intentional checks placed on the executive within the Constitution. Only after Congress passed an "Act for the Protection of Commerce and Seamen of the United States, against the Tripolitan Cruisers" in February 1802, did he order offensive naval operations. If the Trump administration wants to use military power, it should seek authorization from Congress. And Congress must have the courage as the people's representatives to reassert its constitutional duty to decide matters of war and peace.
This article is based on a speech Sen. Rand Paul (R–Ky.) gave on the Senate floor Wednesday while introducing a War Powers Act resolution, which he cosponsored.
The American people do not want to be dragged into a forever war without public debate or a vote.
I took to the Senate floor to defend what the Constitution demands: deliberation before war.
Watch my remarks???? pic.twitter.com/eq5fGvmqFu
— Senator Rand Paul (@SenRandPaul) October 8, 2025