A broad range of legal specialists and a growing number of political leaders have called the Trump administration’s killings of people at sea it said were drug runners illegal and “murders.”
That accusation invites the question of whether anyone involved may someday be held accountable in court.
The administration insists that President Trump has the lawful power to order the summary extrajudicial killings. And even if the critics are right, there would be many obstacles to prosecutions.
For one, future administrations may not want to allow prosecutions, especially of anyone who was simply following orders — both because of the likely political backlash and to avoid setting a precedent that could inhibit their own actions.
But even aside from that practical reality, there would be legal impediments to putting the matter before any court.
Here is a closer look.
What is the legal controversy?
It is illegal for the U.S. military to deliberately target civilians — even those suspected of being criminals — who do not pose a threat of imminent violence. In peacetime, that is murder. In an armed conflict, that is a war crime.
This is according to U.S. laws, including the Uniform Code of Military Justice, and international law accepted by the U.S. military.
Just as the police arrest people they suspect are drug dealers rather than shoot them down in the street, the U.S. Coast Guard, sometimes assisted by the Navy, has long dealt with maritime drug smuggling by intercepting boats and arresting their crews if suspicions of illicit cargo prove accurate.
But since Sept. 2, on orders from Mr. Trump and Defense Secretary Pete Hegseth, U.S. Special Operations forces have been attacking vessels in international waters and killing nearly everyone aboard, blurring the line between enforcing the law and waging a war.
Initially, the operation appeared to focus on Venezuelans. But it has increasingly extended to boats carrying Colombians, whose country is a far greater source of narcotics smuggled to the United States.
To date, the administration has acknowledged killing 61 people in 14 such strikes.
What does the administration say?
The administration told Congress that Mr. Trump “determined” that the United States was in a formal armed conflict with drug cartels, and that the boat crews suspected of smuggling were “combatants.”
As a rationale for the deadly attacks, the administration says the cartels “directly” cause the deaths of tens of thousands of American drug users who overdose each year.
That policy argument ignores a key fact: Fentanyl, the drug behind a surge in overdoses over the past decade, comes from labs in Mexico. South America instead produces cocaine.
In any case, the administration has not offered a legal argument explaining how Mr. Trump could legitimately make his “determinations.” It has not supplied a theory or analysis to bridge the conceptual gulf between drug trafficking and an armed attack.
Could Trump be prosecuted in a U.S. court?
Almost certainly not.
The Supreme Court last year granted presidents immunity from prosecution for crimes they may commit with their official powers, especially those core to their constitutional duties.
Giving orders to the U.S. military as the commander in chief for an operation in the name of defending the United States from a foreign threat — even if the orders go too far and are later found unlawful — appears to be the kind of thing for which Mr. Trump is immune.
Are his subordinates also immune?
Maybe.
One issue left unclear in Chief Justice John G. Roberts Jr.’s majority opinion in the 2024 immunity case was whether lower-ranking executive branch officials would also be granted immunity for crimes they commit while following a president’s orders.
The logic of the opinion is that presidents need immunity so they will not be inhibited by fear of future prosecution for how they carry out their constitutional roles. That would arguably extend to subordinates, because presidents must rely on them to carry out their directions in order for anything to happen.
What other shields could subordinates have?
Before he leaves office, Mr. Trump could issue sweeping pre-emptive pardons of everyone who carried out his directions.
Even if he does not, the Trump administration’s Office of Legal Counsel at the Justice Department has issued a memo that apparently blesses the operation as lawful.
The administration has not divulged the memo’s legal reasoning, so it is not clear whether it contains anything more than what was in the White House notice to Congress.
But even if a future administration decides the memo is wrong and rescinds it, the fact that it currently exists would severely inhibit future prosecutions. It would be hard to prove anyone intentionally committed a crime if the Justice Department itself had assured officials that their actions were lawful.
Could anyone be sued for wrongful deaths?
It is unlikely that a lawsuit would succeed in this matter.
Similar to his shield from prosecution, Mr. Trump has absolute immunity from liability for civil damages arising from any official action taken while president. That comes from a 1982 Supreme Court precedent involving a lawsuit against former President Richard M. Nixon.
Subordinate government officials have only limited immunity from being sued, and that shield does not extend to situations in which they are accused of violating people’s constitutional rights — like a wrongful death lawsuit. But the Constitution does not give rights to noncitizens abroad.
What about foreign courts?
The legal obstacles to charging Mr. Trump or any subordinates in U.S. court would not protect them from being charged in other countries, raising the theoretical possibility of a prosecution by a nation whose citizens were killed.
As a matter of geopolitical reality, it is difficult to imagine a scenario in which the various countries whose citizens have been killed in the U.S. strikes would be in a position to prosecute the current or former leader of a superpower that dominates the Western Hemisphere militarily and economically.
What about The Hague?
The International Criminal Court in The Hague, Netherlands, has its own obstacles.
The court was established in 2002 to prosecute crimes against humanity, genocide and war crimes. Its definition of crimes against humanity includes murders that are part of a deliberate “widespread or systematic attack directed against any civilian population.”
The court has issued arrest warrants for President Vladimir V. Putin of Russia for alleged war crimes in Ukraine, and Prime Minister Benjamin Netanyahu of Israel for alleged crimes against humanity and war crimes in Gaza. It is prosecuting Rodrigo Duterte, the former Philippines president, for his brutal crackdown on drug dealers, which included extrajudicial killings. Mr. Trump praised Mr. Duterte in 2017 for his approach.
But for now, the International Criminal Court does not appear to have clear jurisdiction over the boat attacks.
The multilateral treaty that created the court allows it to bring cases if the accused are citizens of a country that is a party to that treaty, or if offenses took place in the territory of a party or aboard a vessel or aircraft flagged to one.
But the United States has not joined the treaty. The strikes have also apparently taken place in international waters, and there has been no sign that the small boats were registered.
What if the U.S. attacks targets on land?
Mr. Trump has publicly mused about ordering the U.S. military to target people suspected of drug cartel involvement who are on land. Doing so could give the court clearer hypothetical jurisdiction over officials or troops involved in such killings. Notably, Venezuela is a party to the International Criminal Court’s treaty.
But there would be other major problems.
The United States, under presidents of both parties, has strongly resisted accepting that the court can legitimately investigate American political leaders or troops, and Congress has enacted laws requiring the government to shun the institution — including making it illegal to extradite Americans to the court’s custody.
Charlie Savage writes about national security and legal policy for The Times.
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