Previous posts have discussed presidential decisions to kill suspected terrorists. (See NYT story on the "kill list.")
Trump reportedly determined and notified Congress that the U.S. government is involved in an “armed conflict”—i.e. a legal state of war— with drug cartels, marking the latest in an escalating series of legal moves by the administration. It previously designated some cartels as FTOs, unlocking certain criminal law, immigration, and sanctions authorities. It has invoked a 1798 law authorizing the swift removal from the United States of “enemy aliens,” and applied it to suspected Tren de Aragua members. It has used lethal force against alleged Tren de Aragua drug vessels in the Caribbean, claiming national self-defense.
One of the most significant implications of this declaration is that it purports to justify using lethal force against some unspecified categories of cartel members, essentially treating them as enemy soldiers. Because the Trump administration has provided so little information about the strikes and their legal justifications, however, it’s unclear how far the White House is stretching this theory.
The closest analogy is the ongoing armed conflict against al-Qaeda and its affiliates, which is a more legally precise term for the “Global War on Terror.” 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. 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.
Major international cartels are brutally violent and drug trafficking is an enormously destructive problem in the United States, so the Trump administration is right to combat them aggressively. The administration may also believe, with reason, that international drug trafficking is a grave threat to the safety of Americans, and perhaps there are important roles for American military forces in dealing with it. But, to date, the administration hasn’t persuasively made the legal case that drug cartels are waging war against us like al-Qaeda was, nor is it clear whether the White House acknowledges any limits to its theory—one that unlocks the most extreme legal powers a state can wield. 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.
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So far, the Trump administration has used lethal force against drug vessels at sea, but it has also suggested that it might do so in the territory of other states, like Venezuela or Mexico. That would be a major escalation, and it raises additional legal issues because the UN Charter prohibits the use of force against the territorial integrity of UN member states. Unless those states consent, which is unlikely, the administration would probably claim that it was justified because they were unwilling or unable to neutralize the threat against the United States. That would be a radical extension of past precedents, and I believe a misguided one.
