America’s quarter-century-old global war on terrorism took on a whole new dimension this week. President Trump on Tuesday announced that U.S. forces conducted an airstrike on an allegedly drug-laden boat traveling in the south Caribbean, killing 11 people suspected of being members of the Tren de Aragua gang and raising immediate questions about the legality of the attack.
Since then, senior administration officials have said little else about the strike or the intelligence that apparently underpinned the action. They haven’t said what legal authorities they were acting on. They haven’t identified exactly who or what was on the vessel. Secretary of State Marco Rubio first said the boat, which was traveling in international waters, was probably headed toward the Caribbean, then said it was bound for the United States.
The administration’s explanation essentially boils down to this: Trust us.
That’s unacceptable. The administration appears to be betting partly that Americans are so inured from two decades of U.S. military kill-or-capture missions against terrorists in the Middle East that they’ll be indifferent to extrajudicial executions in their proverbial backyard.
The problem with that outlook is that the executive branch had the power to carry out those missions through two open-ended legal authorizations granted by Congress after the Sept. 11, 2001, attacks. The measures — one passed in 2001, the other in 2002 — gave sweeping authorities to the president to use military force against a wide array of militant groups, which ultimately served as the basis for action in at least 22 countries.
It’s difficult to see how that broad authorization would apply to the lethal action taken this week in the Caribbean. Yes, the administration has formally labeled a handful of gangs and drug cartels, including Tren de Aragua, as terrorist organizations. But none of these groups have clear links to Al Qaeda or a related brand of violent extremism. The White House is apparently basing its action on a wholly unrelated new directive that’s yet to be publicly spelled out.
Jameel Jaffer, a human rights lawyer who worked on several legal challenges to overseas drone strikes carried out by the Obama administration, told me Tuesday’s strike was “flagrantly unlawful,” even if you accepted the Obama team’s defense of its drone strikes. “In this case, there’s no congressional authorization of force,” he said. “There was no pre-existing armed conflict. Nor is there any non-frivolous argument that these men posed an imminent threat, even under an elongated definition of imminence. Killing these men in these circumstances looks like outright murder to me.”
What, then, is the legal rationale for the strike?
The administration maintains the strike was consistent with the law of armed conflict, but hasn’t said much more than that. Meanwhile, the Pentagon in recent weeks has expanded U.S. Navy forces in the region, deploying ships and a Marine expeditionary unit. It appears the massing firepower is linked to a still-secret directive that President Trump signed last month, directing the military to act against certain drug cartels that the administration has designated as foreign terrorist organizations.
There’s been no formal announcement from the Pentagon or White House on what exactly that might mean in practice. Does the administration believe it now has a green light to conduct a new military campaign throughout Latin America? Or that President Nicolás Maduro of Venezuela, who the administration has said is the head of another criminal group it has labeled a terrorist organization, is a legitimate target for a U.S.-engineered deposition, or even assassination?
Based on the information the White House has given, none of these questions have well-defined answers. The U.S. military has a standing mission to interdict vessels before they reach America’s shores. That’s a job that the U.S. Coast Guard and Navy crews train and prepare for: stopping boats, detaining smugglers and handing them to authorities for formal prosecution. Why that well-established practice was bypassed in favor of unilaterally killing suspected traffickers — an act far outside any traditional judicial processes — defies comprehension.
What is clear is that the strike doesn’t appear to be a one-off. Defense Secretary Pete Hegseth promised on Wednesday that additional strikes were forthcoming. “We’ve got assets in the air, assets in the water, assets on ships, because this is a deadly serious mission for us, and it won’t, it won’t stop with just this strike,” he said on Fox News.
By utilizing the military in this provocative way, President Trump is again testing the limits of his powers as commander in chief — a defining theme of his second term. On Tuesday, a federal judge in California ruled that the president’s decision to send Marines and National Guard soldiers to Los Angeles was illegal. On Thursday, the District of Columbia sued the administration in federal court for the deployment of National Guard troops there.
Secrecy often goes hand-in-hand with national security. But it appears the administration has drawn up new rules for U.S. lethal operations against suspected terrorists outside conventional war zones. That needs to be explained and understood in relation to international human rights law.
A generation of Americans watched as thousands of people across the Middle East and Africa were killed during the global war on terrorism. What should we expect here?
W.J. Hennigan writes about national security, foreign policy and conflict for the Opinion section.
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W.J. Hennigan writes about national security, foreign policy and conflict for the Opinion section.
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