Trump Declares War Against Drug Cartels
The obvious has been made expllicit.
NYT (“Trump ‘Determined’ the U.S. Is Now in a War With Drug Cartels, Congress Is Told“):
President Trump has decided that the United States is engaged in a formal “armed conflict” with drug cartels his team has labeled terrorist organizations and that suspected smugglers for such groups are “unlawful combatants,” the administration said in a confidential notice to Congress this week.
The notice was sent to several congressional committees and obtained by The New York Times. It adds new detail to the administration’s thinly articulated legal rationale for why three U.S. military strikes the president ordered on boats in the Caribbean Sea last month, killing all 17 people aboard them, should be seen as lawful rather than murder.
Mr. Trump’s move to formally deem his campaign against drug cartels as an active armed conflict means he is cementing his claim to extraordinary wartime powers, legal specialists said. In an armed conflict, as defined by international law, a country can lawfully kill enemy fighters even when they pose no threat, detain them indefinitely without trials and prosecute them in military courts.
Readers who have been exposed to civics education may recall that the Constitution assigns the power to declare war to Congress, not the President. But, of course, Presidents have used military force without prior congressional authorization throughout our history.
Geoffrey S. Corn, a retired judge advocate general lawyer who was formerly the Army’s senior adviser for law-of-war issues, said drug cartels were not engaged in “hostilities” — the standard for when there is an armed conflict for legal purposes — against the United States because selling a dangerous product is different from an armed attack.
Noting that it is illegal for the military to deliberately target civilians who are not directly participating in hostilities — even suspected criminals — Mr. Corn called the president’s move an “abuse” that crossed a major legal line.
“This is not stretching the envelope,” he said. “This is shredding it. This is tearing it apart.”
While I am not a lawyer, I have had considerable training in the laws of armed conflict. I concur that this is an extraordinary interpretation of the war power.
Anna Kelly, a White House spokeswoman, said in an email that “the president acted in line with the law of armed conflict to protect our country from those trying to bring deadly poison to our shores, and he is delivering on his promise to take on the cartels and eliminate these national security threats from murdering more Americans.”
The Trump administration has called the strikes “self-defense” and asserted that the laws of war permitted it to kill, rather than arrest, the people on the boats because it said the targets were smuggling drugs for cartels it has designated as terrorists. The administration has also stressed that tens of thousands of Americans die annually from overdoses.
However, the focus of the administration’s attacks has been boats from Venezuela. The surge of overdose deaths in recent years has been driven by fentanyl, which drug trafficking experts say comes from Mexico, not South America. Beyond factual issues, the bare-bones argument has been broadly criticized on legal grounds by specialists in armed-conflict law.
Presidents assert novel legal theories to justify claiming new powers with some regularity. But it’s really hard to defend the argument that offering a product for sale, even an illicit one, to willing buyers constitutes an armed attack, much less terrorism. And, as noted, the overwhelming number of American overdoses come from abuse of federally-approved pharmaceuticals, albeit often obtained illegally.
The notice to Congress, which was deemed controlled but unclassified information, cites a statute requiring reports to lawmakers about hostilities involving U.S. armed forces. It repeats the administration’s earlier arguments but also goes further with new claims, including portraying the U.S. military’s attacks on boats to be part of a sustained, active conflict rather than isolated acts of claimed self-defense.
Specifically, it says that Mr. Trump has “determined” that cartels engaged in smuggling drugs are “nonstate armed groups” whose actions “constitute an armed attack against the United States.” And it cites a term from international law — a “noninternational armed conflict” — that refers to a war with a nonstate actor.
“Based upon the cumulative effects of these hostile acts against the citizens and interests of the United States and friendly foreign nations, the president determined that the United States is in a noninternational armed conflict with these designated terrorist organizations,” the notice said.
lf nothing else, it’s noteworthy that the administration is complying with notification requirements. Recent evidence suggests that Congress will not interfere with the administration’s actions here.
After the terrorist attacks on Sept. 11, 2001, when the United States went to war against Al Qaeda — a nonstate actor operating across multiple countries — some legal scholars objected that the Bush administration was stretching the rules to justify using wartime powers against a group they likened more to a criminal band of pirates.
But the Supreme Court found that the conflict with Al Qaeda was a real war. It blessed as lawful the Bush administration’s use of the wartime power to hold captured Qaeda members in indefinite detention without trial, while also saying the government was bound by the Geneva Conventions to treat such prisoners humanely and not torture them.
The court’s reasoning, however, turned on the fact that Al Qaeda had attacked the United States using hijacked airplanes as weapons to intentionally kill people, and that Congress had authorized the use of armed force against it. Indeed, in a 2006 ruling, the court also rejected the Bush administration’s first attempt to use military commissions, saying that lawmakers needed to explicitly authorize them.
The AUMF strikes me as the obvious difference here. Congress explicitly authorized Bush (and his successors, since the AUMF had no sunset provision) to conduct war against al Qaeda and those deemed affiliated. Not only has that not happened in this case, it’s not even obvious which groups have been designated as combatants.
Still, Brian Finucane, a former State Department lawyer who is a specialist in the laws of armed conflict and has criticized the boat attacks, expressed skepticism. Among other things, under international law, for a nonstate entity to be part of an armed conflict, it must meet the standard of being an organized armed group, he noted.
“Not surprised that the administration may have settled on such a theory to legally backfill their operations,” Mr. Finucane said. “I had speculated they might do so. One major problem, however, is that it is far from clear that whoever they are targeting is an organized armed group such that the U.S. could be in a N.I.A.C. with it,” he added, referring to a noninternational armed conflict.
Mr. Finucane questioned whether the gang the Trump administration has most talked about targeting, Tren de Aragua, is coherent enough to meet that threshold. An intelligence assessment in April, which was declassified and made public the following month, said the Venezuelan group consisted of “loosely organized cells of localized individual criminal networks” and was so “decentralized” that it would be difficult for it to coordinate actions.
As noted above, I highly doubt Congress will do anything to hamper these operations. Indeed, in cases where the Supreme Court ruled that the Bush administration had exceeded its legal authorities, Congress promptly passed laws granting those authorities. Legalities aside, few Members—even Democrats—are likely to want to be seen as defending drug cartels.
From something I blogged in 2004. Our political system has been failing for a while, in a variety of ways. The ailments just went into Stage 4 recently.
All together now: “the peace president”!
@Kingdaddy: May I recommend Dan Nexon at LGM this morning?
As always…take action, come up with a pretext, dare someone to do something about it. By the time the action is litigated the damage is already done and Russ Vought and Stephen Miller have moved on to the next illegal/unconstitutional power grab, and the 79 year old dotard adds more golden geegaws to the Las Vegas whore house waiting room formerly called the Oval Office.
If these drug runners from Venezuela are now non-state actors, can we conclude that they are really not being directed by the Venezuelan government?
@Joe: Being able to believe contradictory ideas is a prerequisite to conservatism.
@gVOR10: That’s a must-read post on LGM.
@Assad K:
It’s all part of his master plan to win the Nobel peace prize. See, he starts a war with drug cartels, then abandons the war and claims to have ended an 8th war. I don’t know what the hell is delaying things in Norway.
ETA: Here’s a fun thought experiment. Who is the one person, or the one organization, the Nobel committee could pick and most infuriate Trump?
@Michael Reynolds:
Zelensky.
@Michael Reynolds: I saw a cartoon of the Nobel committee sitting around a table, ‘Just for the lulz, let’s do Obama again.’
Tsunamis of cash flow aren’t going to be stopped by walls, border armies, naval interdiction, dramatically performative fighter jet attacks.
That is one thing for which the Trump brain trust should have an intimate understanding: the power of cash flows to overwhelm security of all forms.
@gVOR10:
“It can’t happen here.”
Reading Sinclair Lewis a couple decades ago, I finished thinking “yes it can. ” — all the pointers were there — er, here, to this moment.
Once the policy of declaring an enemy and blasting the enemy is established, it will soon be employed inside the US against domestic enemies of the state as defined by the Trump.
@Michael Reynolds:
President Obama
I had been guessing that the administration would say that Venezuela is launching chemical weapons attacks on the US, using the novel deployment mechanism of selling it to the victims.
300M Americans died from fentanyl overdoses, according to our President. And we seem to regularly intercept enough fentanyl to kill millions more, using the rough estimates provided by cabinet officials.
I guess there is still time.
That Nexon post on LGM is brutal.
I am coming to grips with what it means to be an American. I don’t want to be a subject. To be subjugated. Now the GOP has gone all in on reigning and ruling, not governing, I am seriously feeling American these days and therefore very much not cool with it.
What never fails to cease me, stop me dead in my tracks and shake my head in utter astonishment is how such sleazy, stupid men of such obvious insatiable greed and dishonesty are pulling it off.
@Kingdaddy: I’ve long taken the same view as the Supreme Court on this: an AUMF is functionally the same as a declaration of war. Congress authorized Korea, Vietnam, the Gulf War, the Afghanistan War, GWOT, and Iraq. It’s the freelance mini-wars that concern me.