Trump Says His 'Armed Conflict' With Drug Traffickers Does Not Involve 'Hostilities'
The government is tying itself in knots to cast murder as self-defense and avoid legal limits on the president's use of the military.
President Donald Trump has sought to justify the summary execution of suspected drug smugglers by arguing that the United States is engaged in an "armed conflict" with criminal organizations that supply prohibited intoxicants. Yet the Trump administration also insists that U.S. forces are not engaging in "hostilities" when they blow up boats believed to be carrying illegal drugs.
Those positions are consistent with Trump's disregard for legal limits on his use of the military to prosecute a literalized war on drugs. But they are otherwise hard to reconcile with each other, and their implications underline the immorality and lawlessness of his bloodthirsty antidrug tactics.
Since September 2, Trump has ordered 15 attacks on suspected drug boats in the Caribbean and the eastern Pacific, killing a total of 65 people. As he tells it, those men were "unlawful combatants" in a "noninternational armed conflict" with the United States because they were affiliated with "nonstate armed groups" whose actions "constitute an armed attack against the United States."
Those unspecified groups, Trump says, are "designated terrorist organizations." That label, which refers to "foreign terrorist organizations" (FTOs) identified by the State Department under 8 USC 1189, is misleading because Trump is talking about financially motivated drug traffickers rather than ideologically motivated groups that use violence for political ends.
In any case, that designation authorizes the Treasury Department to block transactions involving an FTO's assets and triggers criminal penalties for providing "material support or resources" to the organization. Contrary to what Trump has repeatedly suggested, it does not authorize the assassination of people who allegedly are affiliated with an FTO. In other words, no matter how many times Trump calls suspected drug smugglers "narcoterrorists," that description cannot transform murder into self-defense—which is why he claims that killing those alleged "narcoterrorists" is justified by the law of war.
Geoffrey Corn, formerly the U.S. Army's senior adviser on the law of war, does not buy it. "This is not stretching the envelope," he told The New York Times. "This is shredding it."
Cardozo Law School professor Gabor Rona concurs. If the men whose deaths Trump has ordered "were running illicit drugs destined for the United States," he writes, "the proper—and entirely feasible and precedented—response would have been interdiction, arrest, and trial. The Trump administration's summary execution/targeted killing of suspected drug dealers, by contrast, is utterly without precedent in international law."
The definition of a "noninternational armed conflict" requires violent confrontations between "organised Parties" that possess "organised armed forces." The violence must "meet a minimum threshold of intensity" that distinguishes it from situations such as "riots," "banditry," "unorganized and short-lived insurrections," or "terrorist activities." The "armed conflict" that Trump describes does not seem to meet these criteria.
Even if it did, Trump's use of the military would still be subject to the requirements of the War Powers Resolution. That 1973 law requires the president to report "any incident in which the United States Armed Forces are involved in an attack or hostilities" within 48 hours. It adds that the president "shall terminate any use of United States Armed Forces with respect to which such report was submitted" within 60 days unless Congress has declared war or authorized an extension.
"Even when a president is acting under his or her constitutional authority to use force," law professor Rebecca Ingber and former State Department lawyer Jessica Thibodeau note, "the statute requires that the operations terminate after 60 days if Congress has not yet approved of the operations." Since Trump notified Congress of the first boat strike on September 4, that 60-day period expires today. But last week, the Justice Department's Office of Legal Counsel (OLC) told Congress the 60-day rule does not apply in this case because blowing up suspected drug boats does not count as "hostilities" within the meaning of the War Powers Resolution.
The OLC's reasoning, which hinges on the premise that U.S. forces face no plausible risk of casualties, resembles former President Barack Obama's controversial claim that dropping bombs on Libya in 2011 did not constitute "hostilities." But however useful it may be in avoiding statutory limits on the president's war powers, the Trump administration's argument also underlines the reality that the president is killing people who are not engaged in "an armed attack on the United States" in circumstances where the use of lethal force is morally and legally unjustified.
"In a statement provided by the White House," The New York Times reports, "an unnamed senior administration official said that American service members were not in danger because the boats suspected of smuggling drugs were mostly being struck by drones far from naval ships carrying U.S. forces." According to that official, "the operation comprises precise strikes conducted largely by unmanned aerial vehicles launched from naval vessels in international waters at distances too far away for the crews of the targeted vessels to endanger American personnel."
In other words, these attacks were not, by any stretch of the imagination, acts of self-defense, even though that is how the Trump administration has tried to frame them. And in denying the existence of "hostilities," the government implicitly contradicts Trump's September 4 letter to Congress about the first boat strike, which said the report was "consistent with the War Powers Resolution." The provision to which he was referring requires a "report on hostilities involving United States Armed Forces." The government's new characterization of the attacks also seems inconsistent with Trump's assertion of a "noninternational armed conflict," which requires "hostilities."
Just a few days ago, Ingber and Thibodeau thought that contradiction would make a denial of "hostilities" clearly untenable. "The administration is making no argument that the lethal kinetic attacks killing more than 60 alleged narcotraffickers are not hostilities," they wrote—prematurely, it turned out. "Indeed, they've gone further to argue that the United States is engaged in a non-international armed conflict with a publicly unnamed list of cartel groups."
The Trump administration has tied itself in knots in an effort to obscure what is really happening. By choosing to kill alleged drug smugglers instead of interdicting and arresting them (the practice until September 2), Trump is imposing the death penalty on criminal suspects without statutory authorization or any semblance of due process.