President Donald Trump has declared that the U.S. is in a formal “armed conflict” with drug cartels in a confidential notice to Congress.
The notice, obtained by the New York Times, labels suspected drug smugglers as “unlawful combatants,” and seeks to justify the Trump Administration’s three military strikes on civilian vessels in the Caribbean sea last month as part of a sustained active conflict. The strikes, which experts said were likely illegal and amounted to extrajudicious murders, killed a total of 17 people.
In a Jan. 20 executive order, Trump designated several drug cartels as terrorist organizations, and the Trump Administration has characterized the strikes as instances of self-defense against national security threats to the U.S. The notice, however, suggests that the Administration has moved to expand its basis for the strikes, by now describing its intensifying military campaign as an active armed conflict, in which a country can legally kill enemy combatants even when they do not pose an active threat, detain them without trial, and prosecute them in military court.
“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, which was reportedly sent to several congressional committees, said.
“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,” White House spokesperson Anna Kelly said in a Thursday statement to media outlets.
Here’s what to know.
Notice raises legal questions
The notice, which is considered controlled but unclassified information, reportedly calls drug cartels “nonstate armed groups” and says that their actions “constitute an armed attack against the United States.” In characterizing the campaign as a “noninternational armed conflict,” the Administration is invoking the legal concept of a conflict between a nation state and a non-state party (or between two or more non-state parties), as opposed to two or more nation states. A noninternational armed conflict does not need to be constrained within a state, but the non-state party must be organized and possess an organized armed force, according to the International Committee of the Red Cross. Additionally, hostilities must reach a level of violence that is sufficiently intense to be considered a noninternational armed conflict, which does not include “banditry, unorganized and short-lived insurrections, or terrorist activities.”
The U.S. government has engaged in noninternational armed conflicts before. Following the deadly Sept. 11, 2001, terror attacks, the George W. Bush Administration argued that its war on terror was a noninternational armed conflict. Congress passed the 2001 Authorization for Use of Military Force, which allowed the President to employ limited wartime powers against Al-Qaeda operatives. The use of AUMFs has come under criticism for effectively giving U.S. Presidents carte blanche to authorize military action without congressional scrutiny and to effectively lead “forever wars.”
Even so, the Supreme Court in 2004 acknowledged the U.S. war with Al-Qaeda, determining the Bush Administration’s indefinite detentions without trial of “enemy combatants” as lawful while still requiring some judicial constraints, although in 2006 it initially restricted the government’s use of military commissions.
It would appear that the Trump Administration is seeking to use a similar argument to justify to Congress its military campaign against cartels. The Trump Administration has sought to constitute the inflow of dangerous substances to the U.S. as a direct armed attack by arguing in the notice that cartels “illegally and directly cause the deaths of tens of thousands of American citizens each year.”
The notice also seeks to provide justification for the Trump Administration’s summary executions of alleged drug traffickers, whom Trump has called “narco-terrorists,” through strikes. In ordinary times, penalizing a suspected criminal, let alone killing them, without due process would be considered a crime. But the notice appears to use the pretext of armed conflict, on top of previous claims of self-defense, to transform the civilian boats and their crews into legitimate military targets.
“The vessel was assessed by the U.S. intelligence community to be affiliated with a designated terrorist organization and, at the time, engaged in trafficking illicit drugs, which could ultimately be used to kill Americans,” the notice reportedly said. “This [Sept. 15] strike resulted in the destruction of the vessel, the illicit narcotics, and the death of approximately three unlawful combatants.”
Experts have raised concerns about the legality of Trump’s determination and its ability to apply to the military strikes that have already killed more than a dozen civilians.
Matthew Waxman, a law professor at Columbia University, told the Council of Foreign Relations last week that the U.S. government has sought to recast the war on drugs from a criminal matter to a military one. The U.S. government has historically gone after alleged narcotics traffickers through a combination of interdiction outside U.S. borders, the use of criminal law within U.S. borders, and some extension extraterritorially of U.S. criminal law, Waxman said.
“The United States government can’t go around the world killing people, even the most odious ones, without some lawful basis,” Waxman said. “The question is what is a lawful basis for overcoming this baseline idea that the government can’t kill people.” To that end, the Trump Administration has portrayed drug cartels as waging an attack against the U.S.
But Geoffrey S. Corn, a retired judge advocate general lawyer and former senior adviser to the Army for law-of-war issues, told the Times that selling a dangerous or illegal substance is not the same as an armed attack.
Venezuela is also not a major source of cocaine, although it acts as a transit hub for the drug. It is also not believed to be a source of illegal fentanyl coming into the U.S.
The notice reportedly also does not define with any specificity the “unlawful combatants” the U.S. is at war with. It does not name the drug cartels, or describe how the Administration determines that individuals have links to these organizations or are “combatants.” Trump previously asserted that the U.S. government has recorded proof that the vessel struck on Sept. 15 was carrying illicit drugs, but the footage does not clearly show what cargo is on the boat.
Rhode Island Sen. Jack Reed, the ranking Democratic member on the Armed Services Committee, posted on X, “Every American should be alarmed that Pres Trump has decided he can wage secret wars against anyone he labels an enemy.”
After Vice President J.D. Vance argued in a post that “Killing cartel members who poison our fellow citizens is the highest and best use of our military,” Kentucky Sen. Rand Paul, a Republican, questioned, “Did he ever wonder what might happen if the accused were immediately executed without trial or representation??”
“What a despicable and thoughtless sentiment it is to glorify killing someone without a trial,” Paul added.
Ryan Goodman, a New York University law professor and former Pentagon lawyer, told the Times last month after the first U.S. strike, “It’s difficult to imagine how any lawyers inside the Pentagon could have arrived at a conclusion that this was legal rather than the very definition of murder under international law rules that the Defense Department has long accepted.”
Brian Finucane, a former State Department lawyer, told the Times that it is not clear that these drug cartels, in particular the Venezuelan Tren de Aragua, constitute organized armed groups, as required for a noninternational armed conflict. An April U.S. intelligence memo, which was declassified in May, concluded that Tren de Aragua, which has spread to other countries, has a “decentralized structure” with “loosely-organized” and “small” local cells that “focus on low-skill criminal activities.” The assessment also found that there is no evidence of widespread cooperation between the Maduro regime and Tren de Aragua, and indeed that top Venezuelan officials view the group as a threat.
“Important threshold issue is the President’s ‘determination’ that US has suffered an ‘armed attack’ as a result of drug smuggling,” Finucane posted on Bluesky. “‘Baloney’ is the technical legal term for that claim.”
Waxman said the Trump Administration’s flagrant flouting of international law sets a dangerous precedent for other nation states to do the same, and undermines the U.S.’s geopolitical position.
“The U.S. has an interest in strengthening, not weakening, the basic rules on the use of military force,” Waxman said. “By flouting international law or dismissing it through sort of boasting that the Administration doesn’t care, the United States is undermining some of its strategic interests, both in the short and the long term.”
“To take this dismissive approach to international law is a real opening for our main competitor, China, to make some diplomatic inroads by painting itself as a reliable partner and painting the United States as the predatory one,” Waxman said. The U.S.’s decision to join Israel in bombing Iranian nuclear facilities presented that very opportunity to Beijing earlier this year.
Escalated campaign on Venezuelan targets
The Trump Administration has ramped up its military campaign on Venezuela in recent months. The government has moved thousands of troops, several navy ships and other military craft to the region, which prompted the Venezuelan government to mobilize militia troops in August. Trump has ordered three military strikes on Venezuelan vessels in international waters: the first on Sept. 2 killed 11 people, the second on Sept. 15 killed three, and a third on Sept. 19 killed another three.
U.S. military officials have also prepared potential plans to target drug traffickers within Venezuela, including the possibility of drone strikes on the country’s mainland which could begin within weeks, officials told NBC last week. The strikes would target cartels’ leaders, members, and drug labs, the officials said.
“We’ll see what happens. Venezuela is sending us their gang members, their drug dealers and drugs. It’s not acceptable,” Trump said on Sept. 14 when asked if the U.S. would consider strikes on mainland Venezuela.
Trump at the time had not yet approved of the plans, officials said last week. The officials told NBC that the Trump Administration’s escalating campaign against Venezuela was in part based on the view that Venezuelan President Nicolás Maduro was failing to sufficiently stop the flow of illegal drugs out of Venezuela.
Trump in early September denied seeking regime change in Venezuela, but a camp of top aides led by Secretary of State Marco Rubio have reportedly pushed for intensifying U.S. military pressure in order to oust Maduro. Outwardly, the Trump Administration’s goal is to stop the inflow of illegal drugs, but a source familiar with the Trump Administration’s thinking told NBC in early September that the Administration has a second objective: to pressure Maduro into making a reckless decision that could lead to him being pushed out of office.
Trump has long railed against the Venezuelan leader, whose last two electoral victories are not recognized by the U.S. government. The Trump Administration has accused Maduro of being “one of the world’s largest drug traffickers” and the leader of the so-called Cartel of the Suns, allegations that the Venezuelan government has denied. In August, the Administration doubled the reward to $50 million for information leading to Maduro’s arrest. In March, Trump imposed penalty tariffs on countries that buy oil from Venezuela on the basis that such purchases aid the Maduro regime which poses “an unusual and extraordinary threat to the national security and foreign policy of the United States.” During Trump’s first term, the Justice Department in 2020 indicted Maduro on charges of drug trafficking.
In response to the Sept. 2 strike, Venezuela has flown F-16 fighter jets over a U.S. Navy ship, which prompted Trump to warn that the U.S. would shoot down Venezuelan jets that “put us in a dangerous situation.” Maduro and other Venezuelan officials have also repeatedly affirmed that their country is prepared to defend itself and accused the Trump Administration of seeking to provoke a war in the Caribbean, with the goal of regime change in Venezuela. Earlier this week, Maduro signed constitutional decrees to ready the country’s security powers to defend itself in case of an attack.
But Maduro also sent a letter to Trump on Sept. 6, days after the first strike, offering to engage in a “direct and frank conversation with your special envoy.” Maduro also denied in the letter any involvement in narco-trafficking, calling the allegations “fake news, propagated through various media channels.” White House Press Secretary Karoline Leavitt confirmed last week that Trump had received the letter but dismissed it.
“Frankly, I think there were a lot of lies that were repeated by Maduro in that letter, and the Administration’s position on Venezuela has not changed,” Leavitt said at a White House press briefing. “We view the Maduro regime as illegitimate, and the President has clearly shown that he’s willing to use any and all means necessary to stop the illegal trafficking of deadly drugs from the Venezuelan regime into the United States of America.”
The Administration is treading more carefully, however, after facing an unexpected level of blowback towards the strikes, an official told NBC last week. The White House is reportedly in talks with Venezuela through Middle Eastern mediators, and Maduro has reportedly offered concessions to the U.S. in order to stay in power.
Anibal Sanchez Ismayel, a Venezuelan political analyst, told NBC that a U.S. attack within Venezuela’s borders could in fact strengthen Maduro’s regime. “An attack on Venezuelan soil would have consequences from diplomatic protests to an increase in political persecutions of those they classify as collaborators, to further uniting the population with the need to defend sovereignty reaffirmed,” he said.
Geopolitical rifts
Tensions resulting from the Trump Administration’s war on drugs have rippled beyond Venezuela. Colombian President Gustavo Petro last week called for a criminal investigation into Trump over the U.S. strikes on Venezuelan boats.
“Criminal proceedings must be opened against those officials, who are from the U.S., even if it includes the highest-ranking official who gave the order: President Trump,” Petro said during the annual United Nations General Assembly meeting. Petro said the passengers on the boat “were not drug traffickers; they were simply poor young people from Latin America who had no other option.”
“They said that the missiles in the Caribbean were used to stop drug trafficking. That is a lie stated here in this very rostrum,” Petro added. “Was it really necessary to bomb unarmed, poor young people in the Caribbean?”
Petro, who took office in 2022 as Colombia’s first leftist president, has resumed diplomatic ties with Venezuela and pursued relations with China, the U.S.’s biggest geopolitical rival. On Tuesday, the Colombian leader dismissed diplomats from Colombia’s embassy in Beijing, claiming that they felt “ashamed of engaging” and sabotaged relations with China.
The U.S. on Sept. 26 revoked Petro’s visa after he joined a pro-Palestinian demonstration in New York and urged American soldiers “not to point their guns at people. Disobey the orders of Trump. Obey the orders of humanity.” Colombia’s Ministry of Affairs said in a statement to Reuters that the U.S. was using visa revocations as a diplomatic weapon, adding that the U.N. “should find a completely neutral host country.” Earlier last month, the U.S. decertified Colombia as a partner in the war on drugs, prompting Petro to argue that the U.S. is “meddling in Colombia’s internal politics, wanting a puppet president.”
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