To add to my post from yesterday (US Blows Alleged Drug Smuggling Boat Out of the Water) here’s a run down of why the strike is unusual and a problem.
For example, here’s Brian Finucane (a legal scholar whose credentials include “over a decade as an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State”) writing at Just Security (a publication based out of the NYU Law School), Legal Issues Raised by a Lethal U.S. Military Attack in the Caribbean.
Despite labelling the targets “narcoterrorists,” there is no plausible argument under which the principle legal authority for the U.S. so-called “war on terror”—the 2001 Authorization for the Use of Military Force—authorizes military action against the Venezuelan criminal entity Tren de Aragua.
[…]
Further, though Trump and others in his administration have emphasized the prior designation of Tren de Aragua as an FTO, such designation does not by itself convey authority to use force. Nonetheless, such FTO designations are widely and mistakenly perceived as authorizing such action within the executive branch. Thus, designation of Tren de Aragua and a number of other Latin American criminal entities as FTOs in February foreshadowed this week’s attack in the Caribbean, despite providing no actual legal authority for it.
The designation of TdA as an FTO is clearly the pathway the administration is taking to justify this and future attacks. But it is worth underscoring that simply designating a group as a foreign terrorist organization does not convey the legal authority to kill suspected members with impunity. Further, the notion of an FTO is that it is a politically motivated group willing to engage in political violence against US interests. Criminal activity is not the same thing.
The following is noteworthy as it further confirms the various reactions, mine included, that see this as a real deviation from the past.
Working in collaboration with the U.S. Coast Guard, the U.S. Navy has for many years conducted maritime interdictions of suspected drug smugglers under a law enforcement paradigm—including during the current Trump administration. In such operations, U.S. Coast Guard law enforcement personnel board the suspect vessel and take the crew into custody.
The attack on the smuggling vessel in the Caribbean was so extraordinary because there was no reported attempt to stop the boat or detain its crew. Instead, the use of lethal force was used in the first resort. According to Secretary of State Rubio, President Trump was given the option of conducting a maritime interdiction but instead elected to blow up the vessel to send a message. Such use of lethal force raises a number of distinct legal issues.
Please note: no known attempt to stop the boat, but lethal force was the first resort. This is central to understanding how unusual this is as official policy touted directly from POTUS.
I would note “law enforcement paradigm” includes presumptions of innocence and due process of law. It does not mean summary execution based on mere suspicion.
From his conclusion (emphasis mine).
The Trump administration’s military attack on this alleged smuggling vessel is not only extraordinary and unsettling in its own right, but also because of the context in which it occurs and for what it may portend for future action.
The use of lethal force in this attack appears gratuitous and the administration has not explained why law enforcement tools were inadequate to address the situation. Of a piece with the deployment of troops to U.S. cities, the strike is an unnecessary and performative use of the U.S. military—a use that is legally fraught at best. (Indeed, Trump threatened Chicago with a troop deployment in the same Oval Office appearance in which he announced the strike.) And the use of lethal force against these supposed terrorists is ominous both because the Trump administration has vowed further such strikes in Latin America and because this administration has deployed the “terrorist” label more broadly domestically, including against migrants and political opponents.
I commend the whole piece, which notes a long list of areas of law and practice that are raised by this action.
I think that dismissing this action is a mistake. One of my fears is that the broader public will just see this as eliminating “bad guys” and shrug it off.
I will stress again that, in addition to the moral and legal objections, there is no reason to assume that this kind of action will actually stop drugs from entering the United States. So, even if one thinks that this is justifiable, it isn’t an efficacious policy. The President of the Philippines, Roberto Duterte, a person that Trump admires, thought that killing suspected drug dealers was the way to go. Guess what: there are still illegal drugs in the Philippines.
I will note that El Salvador’s President Bukele has managed to drive down gang violence, but it meant putting a lot of innocent people in jail and dispensing with due process. Side note: There is still crime in El Salvador.
In terms of precedents, Axios quotes former U.S. Attorney Patrick Sullivan:
“We’ve never seen this before,” Sullivan told Axios. “This is a totally different approach. No one fired a missile at a go-fast boat and just destroyed it. It’s just totally unheard of.”
Ok, why does it matter? I would point to this essay in The Atlantic: Trump Is Crossing a Line That Dates Back to the Revolution.
Both domestically and internationally, the U.S. armed forces are tackling threats once assigned to police officers, Drug Enforcement Administration agents, Coast Guardsmen, and other law-enforcement personnel. They are escorting immigration officers as they arrest undocumented immigrants in American cities, combatting crime with their presence in the U.S. capital, and stopping drugs at the southern border. Off the shores of Venezuela, U.S. ships are massing in a show of force against drug traffickers, a threat long addressed through interdiction at U.S. points of entry or in international or U.S. waters—not through lethal strikes.
[…]
The new tactics represent a shift away from the vision, dating back to the colonial revolt against an overbearing superpower, that U.S. armed forces should defend the country from external threats but not be used to routinely enforce the law.
While I would be concerned about the boat incident even if were singular, or if the issue was just expanding the drug war, we need to note the broader context. Trump is using pretexts like “emergencies,” “invasions,” and “terrorism” to engage in dubious, if not highly problematic, deployments of federal assets in the US and is further using such logic to disappear human beings from US streets and send them to foreign prisons.
We are not talking here about some singular puzzle piece with hysterical inferences being drawn. The use of “emergency” powers and the politicization of the military, all the while stoking fear to justify such actions, are all classic authoritarian moves.
I would add that the notion that enough force can be deployed to make crime go away is an ahistorical fantasy.
I will add, since it is on the minds of many, yes, some policies can be deployed to help alleviate crime. Most of them take money, and none of them are perfect. Further, the fact that some Democrat somewhere said something wacky does not mean that any of what Trump is doing is justified, nor is the blame to be laid at the feet of the wacky.
Blame the person doing the thing.
If your sister was super annoyed and you kicked her, your Mom isn’t going to accept, “She made me!”
If a woman is raped, it is never appropriate to point to her dress and say, “She was asking for it.”
At any rate, back to the Atlantic piece:
Under the Trump administration, the mission has changed. Terrorist threats are no longer limited to groups or individuals plotting violent attacks against America, and invasions don’t just come from foreign adversaries. A threat could be someone carrying drugs bound for the United States; an invasion could be a collection of migrants crossing the border. And just as the military has used precision strikes to eliminate al-Qaeda and Islamic State leaders thousands of miles from U.S. shores, it can now target drug runners operating far closer to home.
If it is unclear as to why this is a problem, let me know, and I will try to better explain it.
I recommend the whole piece, by the way.
