The Volokh Conspiracy
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Trump's Unjust and Illegal Killing of 11 Venezuelans
Killing suspected drug traffickers is both unjust and illegal. And it could be the start of an effort to turn the already awful War on Drugs into something more like a real war, thereby making it even worse.
On September 2, at President Trump's order, US military forces used a drone strike to kill 11 Venezuelans on a small boat in the Caribbean Sea. The claimed justification for this action is that the people on the boat were drug traffickers. Even if that claim is true, the killings were unjust and illegal.
In my view, the entire War on Drugs is fundamentally unjust. It kills and imprisons many thousands of people every year, for no good reason, and in the process stimulates the growth of organized crime and associated violence. It has also severely undermined the Constitution. Under the principle of "my body, my choice," the government should not be in the business of deciding what drugs adults, at least, are allowed to consume. And the way to get rid of drug gangs like Venezuela's Tren de Aragua (TdA) is to end it, just as ending the similarly unjust Prohibition regime was what largely put paid to the organized crime involved in the alcohol trade then. But even if we assume the War on Drugs has some justification, it is a matter of ordinary law enforcement and doesn't justify gratuitously killing people without due process.
US officials admit they could have interdicted the boat and detained the people on board. They did not pose any imminent threat of violence, and they were not combatants in any war against the US. Calling them "narco-terrorists" does not change these obvious facts.
In addition, it is not even clear these people were drug traffickers at all (they might have been migrants fleeing Venezuela's horrible socialist dictatorship). If they were shipping drugs, it is not clear they were going to the US, as opposed to Trinidad and Tobago (which was much closer to their location) or somewhere else. It is not illegal for people on a ship in international waters to transport drugs that are banned in the United States. US law only applies, if at all, if they were planning bring their cargo into US territorial waters.
As GOP Senator Rand Paul put it, "The reason we have trials and we don't automatically assume guilt is what if we make a mistake and they happen to be people fleeing the Venezuelan dictator? … off our coast it isn't our policy just to blow people up … even the worst people in our country, they still get a trial." He's right.
I won't go through the legal issues in detail here, because national security law expert Brian Finucane has already done so in a thorough Just Security article. The bottom line is that these were illegal, extrajudicial killings.
I would call it a war crime, except that there is no war here, despite Trump's (also illegal) efforts to use TdA's activities to invoke the Alien Enemies Act against Venezuelan migrants. So really it's just an old-fashioned regular crime. Perhaps the president has immunity for his part in it under the Supreme Court's dubious immunity ruling in Trump v. United States (which is far from a model of clarity). But if so that just means he can't be prosecuted. It does not not make his actions either legal or right.
I have previously warned against Republicans' dangerous plans to try to turn the War on Drugs into a real war, thereby making an already awful policy much worse (though at that time they seemed more focused on Mexico than Venezuela). We shall have to see if this strike is just the first of a series of similarly terrible actions; administration officials say it may be.
Back in 2013, I testified before a Senate subcommittee on President Obama's use of targeted drone strikes in the War on Terror. Ironically (in light of recent events), I was called as a witness by Republicans who worried that Obama was going too far; some Democrats on the committee also had concerns. I argued that targeted killing of Al Qaeda terrorist leaders was legal and justified (citing precedents like the targeted killing of Admiral Yamamoto and SS General Reinhard Heydrich during World War II) but also that there should be somewhat greater due process to prevent inadvertent targeting of the innocent. See my testimony here.
I have not kept up with this issue in detail since then, instead focusing my writings on other matters). But the concerns I and others expressed at that time apply with much greater force to targeting alleged drug smugglers. And unlike Heydrich, Yamamoto, and Al Qaeda leaders, suspected drug traffickers are simply not proper military targets, except perhaps in rare situations where they are themselves about to launch an attack.
Perhaps, though I am skeptical, evidence will emerge to prove that the people killed in the strike were planning a dangerous terrorist attack, or the like. Otherwise, the president committed an utterly indefensible and criminal act here.
