Trump’s premeditated extrajudicial killings by the military are illegal

Charlie Savage of The New York Times writes:

Since he returned to office nine months ago, President Trump has sought to expand executive power across numerous fronts. But his claim that he can lawfully order the military to summarily kill people accused of smuggling drugs on boats off the coast of South America stands apart.

A broad range of specialists in laws governing the use of lethal force have called Mr. Trump’s orders to the military patently illegal. They say the premeditated extrajudicial killings have been murders — regardless of whether the 43 people blown apart, burned alive or drowned in 10 strikes so far were indeed running drugs.

The administration insists that the killings are lawful, invoking legal terms like “self-defense” and “armed conflict.” But it has offered no legal argument explaining how to bridge the conceptual gap between drug trafficking and associated crimes, as serious as they are, and the kind of armed attack to which those terms can legitimately apply.

The irreversible gravity of killing, coupled with the lack of a substantive legal justification, is bringing into sharper view a structural weakness of law as a check on the American presidency.

It is becoming clearer than ever that the rule of law in the White House has depended chiefly on norms — on government lawyers willing to raise objections when merited and to resign in protest if ignored, and on presidents who want to appear law-abiding. This is especially true in an era when party loyalty has defanged the threat of impeachment by Congress, and after the Supreme Court granted presidents immunity from prosecution for crimes committed with official powers.

Every modern president has occasionally taken some aggressive policy step based on a stretched or disputed legal interpretation. But in the past, they and their aides made a point to develop substantive legal theories and to meet public and congressional expectations to explain why they thought their actions were lawful, even if not everyone agreed.

Around 15 years ago, intense legal controversy surrounded President Barack Obama’s drone strikes targeting Al Qaeda militants in ungoverned places where the United States did not have ground troops, like Yemen and tribal Pakistan. Those included the killing of a U.S. citizen, Anwar al-Awlaki, who was deemed an operational terrorist leader whose capture was infeasible.

Behind the scenes, Obama administration lawyers wrestled with the scope and limits of how the congressionally authorized armed conflict against Al Qaeda could apply to such scenarios. They developed lengthy and detailed memos citing Supreme Court precedents, and systematically worked through issues of domestic and international law.

The details of its legal rationale became known to Congress and the public not only through unauthorized disclosures and Freedom of Information Act lawsuits, but also because the administration delivered speeches and produced a white paper summarizing its reasoning, which it gave to Congress.

Today, the Trump administration is mostly behaving with audacious transparency about its boat attacks. Mr. Trump has posted surveillance videos of the deadly strikes, talked with relish about how “it is violent and it is very — it’s amazing, the weaponry,” and even acknowledged that he had authorized the C.I.A. to take covert actions in Venezuela.

But administration officials have clammed up when asked for the legal analysis to support their assertion that there is a legal state of armed conflict that makes the killings lawful.

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Even in closed-door congressional briefings, according to people familiar with them, officials have provided no detailed legal answers. They are said to have cited drug overdose deaths of Americans, and stated that Mr. Trump decided the country was in an armed conflict with drug cartels. They are also said to have pointed to the part of the Constitution that makes the president the commander in chief of the armed forces, without much further elaboration.

Jack Goldsmith, a Harvard Law School professor and former top Justice Department lawyer in the George W. Bush administration, said Mr. Trump’s actions demonstrated an indifference to law that threatened to hollow it out.

“Nixon tried to keep his criminality secret, and the Bush administration tried to keep the torture secret, and that secrecy acknowledged the norm that these things were wrong,” Professor Goldsmith said. “Trump, as he often does when he is breaking law or norms, is acting publicly and without shame or unease. This is a very successful way to destroy the efficacy of law and norms.”

Anna Kelly, a White House spokeswoman, said in a statement that Mr. Trump promised during the campaign to take on drug cartels whose actions “resulted in the needless deaths of innocent Americans.” She suggested his “unprecedented action” would continue.

“All of these decisive strikes have been against designated narcoterrorists, as affirmed by U.S. intelligence, bringing deadly poison to our shores, and the president will continue to use every element of American power to stop drugs from flooding into our country and to bring those responsible to justice,” she said.

A Legal Vacuum

In peacetime, targeting civilians — even suspected criminals — who pose no threat of imminent violence is considered murder. In an armed conflict, it is a war crime. International law accepted by the U.S. military says that, as do U.S. laws.

By asserting that he can have the military kill people suspected of drug trafficking as if they are enemy soldiers on a battlefield, Mr. Trump is blurring a line between enforcing the law and waging a war.

The United States has long dealt with maritime smuggling by using the Coast Guard, sometimes assisted by the Navy, to intercept boats and, if illicit cargo is found, to arrest their crews. Similarly, the police arrest people they believe are dealing drugs; it would be considered murder to instead summarily gun such suspects down in the street. And even if a person accused of drug trafficking pleads guilty or is convicted at trial, the penalty is prison — not execution.

Since Sept. 2, however, the military, on Mr. Trump’s orders, has carried out 10 strikes on small vessels in the Caribbean Sea and the Pacific Ocean off the coast of Colombia. Mr. Trump has asserted that each boat carried drugs that would have killed 25,000 Americans, and on behalf of “narco-terrorists,” or cartels his team has designated as terrorist organizations.

It is increasingly difficult to speak plainly about the administration’s actions without dissecting layers of rhetoric that can create a misleading impression.

In all, about 80,000 American drug users died last year by overdosing, down from about 110,000 in 2023. The drug that has caused a surge in such deaths over the past decade is fentanyl, which comes from labs in Mexico. South America, the origin of the boats the Trump administration has been attacking, instead produces cocaine.

And terrorists, by definition, are trying to advance some ideological or religious cause. Drug cartels, by contrast, seek to profit from an illicit consumer product. In any case, the law that enables the executive branch to designate a group as terrorists triggers the power to freeze its assets and criminalize providing support to it, not to kill people suspected of membership.

These factual distinctions raise questions about the two legal terms the administration has invoked to say that its killings are lawful rather than murders: “self-defense” and “armed conflict.”

To legally kill someone in self-defense, the deadly force must be necessary to prevent an imminent threat of death or significant injury. In an armed conflict, though, one can legally kill someone based on the person’s status as a member of the enemy force, even if that person poses no immediate threat. But for an armed conflict to exist, there must be a certain intensity and duration of combat.

Why is carrying drugs on a speedboat 1,500 miles from Florida, the kind of vessel the Coast Guard and Navy could easily seize, an imminent threat of death? Why is trafficking cocaine — not fentanyl — an armed attack on the United States? Why does crewing a drug-running boat make someone a targetable combatant rather than a criminal?

What is the theory for transmuting acts of crime into acts of war?

Legal deliberations inside the executive branch, according to officials familiar with the matter, have been closely held and largely limited to political appointees. The Justice Department’s Office of Legal Counsel — which Mr. Trump sidelined for most of the year until appointing an official to lead it in August as preparations for the attacks ramped up — has produced a memo apparently blessing the campaign. But the administration has not described its analysis.

An administration official, speaking on the condition of anonymity to discuss a sensitive matter, disputed the premise of this article. The administration has, in fact, publicly laid out its legal theory, the official said, pointing to a recent notice to Congress about one of the boat attacks.

KILLING DRUG-SMUGGLING SUSPECTS

Read the notice to Congress about President Trump’s “determination” that the United States is in a formal armed conflict with cartels.

The notice lays out a policy argument for attacking cartels, portraying them as dangerous groups that are “directly” causing the deaths of tens of thousands of Americans each year. And it states that Mr. Trump has “determined” that their actions “constitute an armed attack against the United States” and that the country is in a formal “armed conflict” with them.

But even putting aside the key factual discrepancy between fentanyl and cocaine for overdose deaths, the notice contains no legal theory. It does not mention international and domestic laws governing force. It does not cite court precedents and analyze how they might apply. It offers no explanation for how Mr. Trump could legitimately “determine” that trafficking drugs is legally an armed attack, giving him the power to lawfully order killings in response.

Even if the Justice Department memo that somehow blesses the killings lacks much actual legal analysis and even if a future administration rescinds it, its existence essentially forecloses any prospect of future prosecutions. It is hard to prove someone intentionally committed a crime when the Justice Department itself said at the time that the action was lawful.

Two decades ago, Professor Goldsmith took over the Office of Legal Counsel and withdrew memos issued under the Bush administration that blessed the C.I.A.’s torture program. Reflecting on that period in a memoir, he called such memos get-out-of-jail-free cards.

Mr. Trump and Attorney General Pam Bondi have used the authority of the administration to exert pressure on the decisions of executive branch lawyers.Credit...Kenny Holston/The New York Times

The silence about what legal theory can support Mr. Trump’s assertion that suspected drug smugglers are lawful military targets as “combatants” in an armed conflict dovetails with a growing pattern in his administration’s assertions of executive power.

The administration has found a two-part hack to the system in which executive branch lawyers are supposed to independently determine the legal boundaries within which policymakers may act.

The first is that Mr. Trump has told executive branch lawyers that they may not question any legal judgment that he — or Attorney General Pam Bondi, subject to his “supervision and control” — already decided. “The president and the attorney general’s opinions on questions of law are controlling on all employees in the conduct of their official duties,” Mr. Trump declared in a February executive order.

The second is that Mr. Trump has been declaring that as president, he has determined that the factual and legal scenarios exist that are necessary for him to exercise various extraordinary powers.

The two tactics combined create a gigantic loophole. Mr. Trump is able to dictate his own factual and legal realities, and executive branch lawyers who want to keep their jobs must treat them as settled. The result is that Mr. Trump can order agencies to take actions to which independent-minded lawyers might have raised legal objections.

On his first day in office in January, Mr. Trump signed an order that nullified a law the Supreme Court had just unanimously upheld that banned TikTok from operating in the United States. When letters the Justice Department sent to tech companies assuring them that they could lawfully violate the statute became public in July, they explained only that Mr. Trump had “determined” that the law interfered with his constitutional duties.

Even when Mr. Trump’s “determinations” reach the courts, the administration has argued that judges must defer to Mr. Trump’s assertions, too.

For example, Mr. Trump is trying to use a wartime deportation law to deport Venezuelan migrants without due process — taking planeloads of them to a notorious Salvadoran prison — based on his assertion that Venezuela’s government is directing a gang to invade the United States.

The U.S. intelligence community believes the gang is not, in fact, controlled by Venezuela’s government, and lower-court judges have rejected his finding that illegal immigration counts as an “invasion.” But the administration has faulted those judges for having “failed to defer to the president’s determinations,” and a full appeals court has decided to rehear the case.

Mr. Trump’s attempts to deploy troops under federal control into Democratic-run cities like Los Angeles, Portland, Ore., and Chicago also turn on his finding, rejected by lower-court judges, that protests of his immigration crackdown were out of control. One Trump-appointed judge wrote, “The president’s determination was simply untethered to the facts.”

Two appeals court panels have overturned the rulings about Los Angeles and Portland, saying greater deference was required. A third panel upheld the ruling about Chicago, but the administration has asked the Supreme Court to intervene, insisting that courts may not “review the president’s judgment at all.”

Politically appointed officials have often been ready to devise creative legal theories that allow presidents to do what they want, especially when it comes to war powers. Many critics, for example, said that was the Obama administration’s approach in defending his unilateral decision to have the United States participate in NATO’s 2011 air war in Libya.

Still, the very act of searching for a legal theory and developing an argument can shape deliberations about what a president chooses to do. And sometimes presidents have restrained themselves because of legal objections, as when Mr. Obama relinquished his high-profile vow to close the prison at Guantánamo because of a law barring him from bringing detainees to the United States.

Based on the information now available, Geoffrey S. Corn, a retired judge advocate general officer who served as the Army’s senior law-of-war adviser and now teaches criminal and military law at Texas Tech University, said that the United States was not in an armed conflict with drug cartels, notwithstanding Mr. Trump’s “determination.”

Professor Corn said he believed the killings were illegal, and expressed concern about “the impact on the morality of the war fighters who have to carry out the orders.”

“The men and women who volunteered to serve this nation and engage in the most morally challenging conduct imaginable — killing someone who is not immediately threatening you — have a right to know the nation will not order them to engage in that deadly endeavor unless it is genuinely justified both legally and morally,” he said. “The service members who conduct attacks have to live the rest of their lives with the memory.”

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