Pam Bondi’s Department of Justice has authored a secret memo purporting to provide legal cover for President Donald Trump to launch a never-ending war on an expansive list of drug cartels and suspected traffickers.
The opinion, which was produced by the DOJ’s Office of Legal Counsel, says the president can order deadly strikes against the cartels because they pose an “imminent threat” to Americans, sources told CNN.
Instead of treating alleged drug traffickers as suspected criminals with due process rights, the memo says the president can designate them as “enemy combatants” and have them summarily killed.
The list goes beyond the cartels that the administration has publicly designated as terrorist organizations and is being kept secret from lawmakers, who have repeatedly asked for a copy of the legal opinion but have been denied, according to CNN.
The military has carried out at least four strikes on boats allegedly carrying drugs in the Caribbean, killing a total of 21 people the Trump administration claims are “affiliated” with drug cartels.
Officials, however, have refused to answer questions about where the strikes took place and under what circumstances, and have not provided evidence that the boats were carrying drugs. They also originally failed to provide a legal authority that would justify the summary execution of civilians.
Within the Pentagon, some career defense officials and military lawyers warned that the strikes were potentially illegal, but their opinions were ignored or sidelined, according to reporting from both The Wall Street Journal and CNN.
The U.S. Coast Guard often intercepts suspected drug smugglers, but the standard rules of procedure for dealing with cartel members are to arrest and prosecute them, not execute them.
Last week, the Department of Defense gave lawmakers a memo justifying the strikes that apparently drew heavily on the DOJ opinion, according to CNN.
The Daily Beast has reached out to the White House and DOJ for comment.
Despite the opinion, many current and former JAGs—military lawyers who are members of the judge advocate general’s corps—do not think the strikes are legal, sources told CNN.
But Pentagon lawyers cannot overrule the DOJ, and many are reluctant to publicly dissent, the sources said.
They’re worried, however, that the military personnel who carry out the strikes could be personally liable for extrajudicial killings, and are looking for ways to provide legal protection for the personnel involved, according to the Journal.
Legal scholars and lawmakers on both sides of the aisle have said the strikes violated both domestic and international law, especially because Congress has authorized the use of force against terrorist groups in the Middle East, but not against Latin American drug cartels.
“Every American should be alarmed that their President has decided he can wage secret wars against anyone he labels an enemy,” said Democrat Jack Reed, a ranking member of the Senate Armed Services Committee, after the latest boat strike.
Secretary of State Marco Rubio initially told reporters that the first boat carrying 11 people, which was hit on Sept. 2, was probably headed from Venezuela toward Trinidad and Tobago, The New York Times reported.
That would have put it about 650 miles from the U.S. territory of Puerto Rico and more than 1,600 miles from Florida.
“Maybe the boat was coming here. Maybe it wasn’t. But nobody’s even asking whether we need to prove that. We just blow them up,” Sen. Paul Rand told Politico last month.
Regardless of where the boats were located, John Yoo, the University of California at Berkeley professor who wrote the legal memos justifying President George W. Bush’s use of “enhanced interrogation” techniques on suspected al Qaeda terrorists, told Politico that the Trump administration hasn’t made the legal case that cartels should be considered enemies of war.
“There has to be a line between crime and war,” he said. “We can’t just consider anything that harms the country to be a matter for the military. Because that could potentially include every crime.”
Administration officials have so far shrugged off the criticism, with Defense Secretary Pete Hegseth claiming that he has “absolute and complete authority” to kill suspected drug smugglers.
Sanho Tree, a global drug policy expert at the Institute for Policy Studies, told the Daily Beast that Trump—who has been lobbying for a Nobel Peace Prize—had effectively started an endless war because the drug trade did not have an organizational structure or international high command.
“If one cartel gets killed, an infinite number of others will appear,” Tree said. “Trump trying to apply this new military doctrine against an enemy who is quite literally incapable of surrender is, by its very definition, a forever war.”
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