Why I believe Trump lacks the legal authority to conduct military strikes on Venezuelan boats
Secretary of Defense Hegseth is under fire for the killing of two men who survived the initial U.S. attack on a boat near Venezuela. The law of war forbids killing defenseless survivors of a wrecked vessel.
Hegseth defends the two killings but denies ordering them. He says he didn’t know there were survivors of the initial attack and blames the killings on “the fog of war” — a term usually reserved for cases in which there are two sides fighting.
Some Senators on both sides of the aisle are skeptical of Hegseth’s defense. Congressional hearings are likely.
That’s fine with me. My concern, though, is less with the killing of the two survivors — as indefensible as that might prove to be — than with the ongoing military strikes themselves. I believe they are unlawful.
The administration says the strikes are in furtherance of our efforts to combat “narco-terrorism.” But in my view, narco-terrorism is an oxymoron.
Terrorism occurs when random, unsuspecting people are killed or maimed in order to terrorize the general population. It is carried out for purposes of furthering a political/ideological program or, in some cases, just for the hell of it.
Narcotics trafficking fits none of this description. The victims are not random or unsuspecting. They are people who want to buy drugs. Nor is the purpose of selling the drugs political or ideological. It is commercial. The traffickers want to make money.
The administration seems to consider drug dealing by foreigners not just an act of terrorism by, at least in the case of Venezuelans, an act of war. It is not. It is a crime. See 21 U.S. Code § 952.
Furthermore, the crime of importing narcotics is not punishable by death. President Trump has at times advocated the death penalty for drug dealing, but U.S. law does not permit it.
Accordingly, Sen. Rand Paul calls the lethal strikes on drug-dealing Venezuelans “extrajudicial killings.” I agree.
The Trump administration claims that the Venezuelan government is behind the importation of narcotics by those running boats off that country’s coast. Apparently, Trump considers this an act of war against the U.S.
It might well be that the government of Venezuela has connections with the cartel that’s doing the drug trafficking. It’s normal for corrupt, authoritarian regimes to want a slice of the money gangsters obtain through criminal activity.
In addition, the Venezuelan government might well be happy to see Americans overdosing on drugs. But that’s not the same thing as waging war on the U.S.
Ironically, Trump has just pardoned former Honduran president Juan Orlando Hernández who was convicted in a U.S. court on charges that he ran the Central American nation as a “narco-state” that helped bring South American cocaine to the United States. Hernández was charged during the first Trump administration. At trial, prosecutors presented evidence that Hernández, as president of Honduras, helped to move at least 400 tons of cocaine to the United States while protecting traffickers from extradition and prosecution.
The pardon makes me wonder about the seriousness of Trump’s claim that state support of drug trafficking constitutes terrorism or war against the U.S. It also makes me wonder how much Trump really cares about such criminal activity. With Trump, things are often just personal. He dislikes Maduro. Apparently, he likes Hernández.
Irony and my suspicions aside, if Trump really believes that the Maduro regime is behind the importation of drugs into the U.S. and that this amounts to an act of aggression that justifies military attacks on Venezuelans, he should make that case. He should go to Congress and seek a declaration of war or at least some form of authorization for his military campaign.
This Congress has given Trump nearly everything he’s asked for. If there’s a good case for deploying the military to attack boats off the Venezuelan coast, Congress is very likely to authorize it. Indeed, Congress is somewhat likely to do so even if there isn’t a good case.
The Trump administration’s position is that it doesn’t need authorization from Congress. In its view, the president’s role as commander-in-chief gives him the authority he needs.
But the commander-in-chief role doesn’t confer the authority to deploy the military to strike whomever the president wishes to attack. If it did, the Constitution would not have reserved for Congress the power to declare war.
I understand that there are cases when the president needs to deploy the military without congressional approval. This includes cases in which delay will render military action ineffective and cases in which surprise is essential to the success of the attack or to the preservation of the lives of our forces.
The ongoing campaign off the Venezuelan coast is not such a case. There are no circumstances here that justify not taking the short amount of time needed to obtain congressional approval (if approval is in the cards). Nor at this point is there any element of surprise to our strikes.
I understand the devastating effect that the importation of drugs has on our country. U.S. drug overdose deaths in a single year now routinely exceed total deaths from many of our actual wars (and, by the way, will almost certainly continue to exceed them even if Trump stopped all drug shipments from Venezuela).
Nonetheless, the importation of narcotics is a crime, not an act of war. To confuse crime with war would dangerously expand the scope of military force into areas of ordinary social problems.
It would also erode the rule of law, by which I mean American law. There has been no declaration of war on Venezuela and no congressional authorization for the use of military force. Nor is there any plausible claim that the attacks on the Venezuelan drug smugglers are necessary to repel or prevent an imminent armed attack against the United States.
Under these circumstances, I believe the Trump administration strikes are unlawful.
this is much more than just a "war" against drug-dealers. This is the Trump variation on the Monroe Doctrine; i.e., we're telling China, Iran, Hezbollah & the other friends of Maduro that they have to stay the hell out of the Western Hemisphere. Re: congressional authorization- Obama and Biden didn't call their military interventions "wars" but they killed many people in Iraq & Afghanistan and the Washington Post had no objections.
I think that's a very myopic, legalistic view of the modern narcotics trade and a naive view of how hostile governments deal with each other. It sounds like the Mayor of Chicago, Big Bill Thompson, lecturing Eliot Ness about his illegal tactics against Al Capone.
Venezuela, Brazil, Chile and Colombia's leftist governments have welcomed the Chinese Belt and Road initiative into this hemisphere with no serious pushback from American politicians. The Chinese build out of dual-use, milspec ports is not just about trade; nor is their provision of fentanyl precursors to the cartels operating in Mexico, Columbia and Venezuela simply a matter of making money off the American appetite for narcotics.
The cartels today are not the cartels of the 80s and 90s; if they were public companies, they would have market caps in the tens of billions of dollars. They are far larger and more powerful than LCN ever was. They have real political power, as any of the recent Presidents of Mexico will attest.
The number of Americans killed or harmed by fentanyl - which is not just sold in pure form but added to practically every recreational street drug - has surge to over 100,000 per year. That's twice the carnage of the Vietnam War. Because it is so poisonous even in small amounts, people are killed by simple dermal contact. In places were fentanyl death is common, people keep a can of Narcan in their cars just in case.
On the distribution side, almost thirty years of treating the cartels like domestic drug traders and prosecuting them in courts of law has been fruitless, while in their own countries, the cartels have bought government cooperation from mayors to judges to Presidents.
That is not speculation, it is history - but I would speculate that, given the scale and scope of their operations in the US and the ineffectiveness of conventional law enforcement, they have done so here as well.
Even in this country, it's hard to get a jury that will serve on a trial involving a gang member, let alone someone associated with a cartel.
The American criminal justice system is not up to dealing with this problem. That's not just my opinion, it's a matter of record.
The so-called war on drugs was a failure not just because of the demand for drugs, but because it was never conducted as war. It was a criminal justice approach that cannot work against an adversary that knows no limits. Prison is not an impediment to cartel drug lords; it is an opportunity to grow the ranks.
On the supply side, going to the root of the problem has also been fruitless. Successive administrations have tried to pressure Xi into cutting off the supply of precursors from cartels. Joe Biden told us two years ago he had Xi's assurance, but nothing happened.
Why is that? Could it be because flooding the US with fentanyl is part of the CCP's "unrestricted warfare" on the US, which the CCP has boasted about?
Somehow it's OK for the CIA to influence foreign elections, foment regime change, broker illegal arms sales, etc., in secrecy with dark money, but it's a crime for the US military to openly engage an organized effort to poison the US population. This not just about making money off drug rackets, it's about weakening the US.
In destroying the drug boats before they reach our shoes, where the lawyers take over, Trump is not addressing drug dealers. He is talking to Xi.