Legal scholars say the Trump administration may have a solid argument that international drug cartels are using narcotics as de facto weapons of war and are targeting the U.S. with the intent of causing physical harm, in the form of drug addiction, to its citizens.
That rationale, analysts say, seems to be the Trump administration’s best legal defense as it strikes alleged drug boats off the coasts of Central and South America, while insisting that the U.S. technically isn’t at war and doesn’t need congressional approval to continue its deadly anti-narcotics campaign.
So far, the U.S. has struck at least 16 alleged drug boats and killed at least 64 people in the process. The administration has deemed them “narco-terrorists.” The strikes have received significant criticism at home, including from lawmakers of both parties, as well as abroad. Top officials at the United Nations recently said the administration is violating international law and carrying out extrajudicial killings.
Retired Air Force Maj. Gen. Charles Dunlap, now executive director of the Center on Law, Ethics and National Security at Duke University Law School, said the administration is prosecuting its war on drug boats under a “law of war regime.” That differs from the law enforcement legal regime under which the U.S. Coast Guard, for years, has interdicted boats suspected of carrying drugs.
The administration argues that it is engaged in armed conflict with non-state actors — in this case, drug cartels — whom the U.S. has deemed unlawful combatants. Mr. Trump also has designated some drug cartels as foreign terrorist organizations.
Those definitions give the president some authority to conduct a military campaign but carry specific conditions to pass legal muster over the long term.
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“International law requires that there be sufficient organization of these non-state actors, as well as a certain intensity of the conflict, and here’s where we get into some pretty complicated legal thoughts,” Mr. Dunlap said recently in an exclusive interview on the “Threat Status” weekly podcast.
“Is this an armed conflict? I think a case could be made — we haven’t really heard any details from the administration — that drugs are, in essence, an arm. We do have a chemical weapons treaty, so the idea of chemicals being weaponized is not new. Some might say, ‘Well, wait a second, they’re not trying to kill anybody.’ Maybe not, but they certainly are intending to harm people, especially with cocaine. They want to create addicts,” Mr. Dunlap said of the drug cartels.
A ‘dangerous’ legal stretch?
Behind the scenes on Capitol Hill, the Justice Department reportedly is arguing that the drug cartels are akin to extremists targeting the U.S. and that their weapons of choice are narcotics rather than bombs, guns or other more traditional terrorist tools. Several media outlets have reported that top Justice Department officials presented their case to top lawmakers, arguing that the U.S. is technically not at war because its military is not under attack and the 1973 War Powers Resolution therefore does not apply. That law requires a president to seek congressional approval, get an extension or halt hostilities 60 days after beginning military strikes.
The administration has given no indication that it will seek any formal congressional approval to continue its campaign.
Presidents have broad discretion over military matters, as outlined in Article II of the Constitution. Still, arguing that the U.S. isn’t at war and that its military is not under attack, but that non-state actors are targeting the American homeland and must be preemptively struck by American forces, appears to be a tricky legal tightrope.
“The closest analogy is the ongoing armed conflict against al Qaeda and its affiliates. … That’s been the legal basis, across five presidential administrations now, for lethal force and detention of al Qaeda fighters. The Trump administration seems to be applying that same template, but this time against drug cartels instead of a transnational terrorist group. But that’s a dangerous stretch,” Matthew C. Waxman, an adjunct senior fellow for law and foreign policy at the Council on Foreign Relations, wrote in a recent analysis.
“Al Qaeda had declared war on the United States and attacked U.S. warships, embassies, military headquarters and financial capital, killing thousands of Americans with the equivalent of missiles. If a state had carried out those attacks, no one would dispute that we were in a war,” he said. “Part of the problem is that the Trump administration has been so opaque about its legal basis and about the facts surrounding its recent strikes. That’s a mistake that exacerbates the legal problems.”
Mr. Dunlap agreed. He argued that the administration has not offered a convincing legal case for its actions, at least not publicly.
Critics say the Trump administration is setting a dangerous precedent by killing alleged narco-terrorists without providing an airtight legal case to Congress, the American people and international allies.
Congress on the sidelines
Administration officials say their rationale is clear.
“So, the rationale is quite simple: It’s self-defense of the American people,” Defense Secretary Pete Hegseth told The Washington Times in a recent exclusive interview. “We have been poisoned. Our kids have been poisoned. Our communities have been poisoned, and we’ve allowed it to happen because, for some reason, we weren’t willing to look holistically or seriously at the problem.”
The operations are “not extrajudicial,” as some critics assert, Mr. Hegseth said.
“We’ve got a lot of lawyers and a lot of process that’s looking at it with the who and the why, and we’re working with Congress to make sure they have that information,” he said.
Congress isn’t convinced. Once again, lawmakers are left in a position to stand by and watch as an administration conducts military actions abroad with little input from the House and Senate. That scenario has played out repeatedly in the post-9/11 era under presidents of both parties. Authorizations for use of military force and other war powers have been stretched by commanders in chief who, for various reasons, chose not to seek formal congressional approval for military actions around the world.
Last week, Sen. Roger F. Wicker, Mississippi Republican, and Sen. Jack Reed, Rhode Island Democrat, the chairman and ranking member of the Senate Armed Services Committee, respectively, publicly released two letters sent to Mr. Hegseth that seek clarity on the legal rationale for the strikes.
The Oct. 6 letter, they said, “requests any written opinion from the Department of Justice’s Office of Legal Counsel regarding the domestic or international legal basis for these operations and strikes, and a complete list of all designated terrorist organizations and drug trafficking organizations with whom the president has determined the United States is in a non-international armed conflict and against whom lethal military force may be used.”
On Friday, the senators said they had not received those documents.
The administration reportedly held a closed-door briefing on the matter last week, excluding congressional Democrats. As a result, some lawmakers are questioning the foundation of the administration’s arguments.
“We’re all saying, come clean. And the fact is, if, as the administration says, these are all bad guys, and yeah, they’re all drugs on these boats, interdict these boats and show the world,” Sen. Mark R. Warner, Virginia Democrat and vice chairman of the Senate Select Committee on Intelligence, said on CBS’s “Face the Nation” program over the weekend.
“If you are going to try to make a case to the American public, make it publicly. Don’t do this and then try to hide the legal justification and give it out only on a partisan basis,” Mr. Warner said.
Some Republicans have been equally critical.
“The drug war … or the crime war has typically been something we do through law enforcement. And so far, they have alleged that these people are drug dealers. No one said their name. No one said what evidence. No one said whether they’re armed. And we’ve had no evidence presented,” Sen. Rand Paul, Kentucky Republican, said recently on “Fox News Sunday.”
“So, at this point, I would call them extrajudicial killings,” Mr. Paul said. “And this is akin to what China does, to what Iran does with drug dealers. They summarily execute people without presenting evidence to the public. So, it’s wrong.”
