Release White House legal memos supporting 'drug' boat strikes

Perhaps not surprisingly, Defense Secretary Pete Hegseth and senior military leaders have faced the worst of the political uproar from the Trump administration’s boat strikes off the coasts of Central and South America. The campaign has produced at least 87 deaths and one of the few episodes of bipartisan pushback in Trump’s second term following the revelation that the U.S. military conducted a “double tap” strike on an alleged drug boat that intentionally killed two survivors of an earlier strike.

But very serious questions about the legality of the effort in its entirety — even setting aside the double tap strike — should be directed at the Trump administration’s top lawyers, reported Politico. In particular, there is a dubious, but still classified, memo that was reportedly produced over the summer by the Justice Department’s Office of Legal Counsel that signs off on the campaign and asserts that everyone in the chain of command is entitled to criminal immunity because the United States is said to be engaged in an armed conflict with drug cartels. (A DOJ spokesperson said, “These operations were ordered consistent with the law of armed conflict.”)

You can add this episode to the list of issues that have produced a series of sharp and unprecedented divisions among even conservative lawyers, scholars and judges as they grapple with a president who, in the last 11 months alone, has pushed the boundaries of executive power further than any president in our lifetimes. The rifts have emerged on a variety of fronts, with some on the right opposed to Trump’s judicial nominations, his “emergency” tariffs, his deployment of the National Guard and his decision to ignore Congress’ TikTok ban.

The OLC’s memo on the boat strikes appears to reflect a particularly aggressive interpretation of the laws of war that goes further — and relies on more questionable analysis — than some of the most highly controversial legal positions taken by administrations over the last half century.

One obvious point of comparison is the set of memos that President George W. Bush’s OLC produced concerning the treatment of military detainees after the Sept. 11, 2001 attacks by al Qaeda — otherwise known to many as the “torture memos” because they authorized extreme interrogation methods like waterboarding and prolonged sleep deprivation. But for a variety of reasons, and regardless of where you might have come down in that case, the OLC’s conclusion on Trump’s boat strikes appears less defensible and even more worthy of serious public scrutiny.

“I don’t think there’s an armed attack” against the U.S. by the drug cartels, John Yoo, a Berkeley law professor, told me.

Yoo’s skepticism is especially notable. That’s because he was famously one of the drafters of those post-9/11 memos while working at the OLC in the Bush administration and, despite considerable criticism of his analysis, has never changed his position. Even for him, the Trump administration’s arguments are hard to accept.

“They’re not attacking us because of our foreign policy and our political system,” Yoo said, drawing a distinction between al Qaeda and drug traffickers who may be based in Venezuela. “They’re just selling us something that people in America want. We’re just trying to stop them from selling it. That’s traditionally, to me, crime. It’s something that we could never eradicate or end.”

If that is correct, then the boat strikes constitute murder under federal law and are also illegal under international law. Trump may be immune from criminal prosecution in the U.S. thanks to the Supreme Court, but everyone else involved, in theory at least, faces the risk of federal prosecution in a future administration unless Trump at some point grants some or all of them a pardon.

For all of the Trump administration’s bravado, getting legal signoff for the boat strikes may not have been as simple as it now appears. Multiple media outlets have reported that proponents of the strikes were forced to push aside or ignore government lawyers who concluded that the military campaign is unlawful or otherwise questioned its legality.

One lawyer who was unlikely to question the administration’s legal analysis and conclusions: T. Elliot Gaiser, the 36-year-old currently running OLC, whose loyalty to Trump appears to be one of his principal qualifications.

According to testimony provided to the Jan. 6 select committee, Gaiser worked on the effort by Trump to overturn the 2020 election. Former White House Press Secretary Kayleigh McEnany testified, among other things, that Gaiser helped develop some of the arguments that Trump made to support his false claim that he won the state of Pennsylvania in 2020. Gaiser also told McEnany at one point that Vice President Mike Pence had the legal authority to refuse to recognize electors from certain states during the Jan. 6 certification — a claim that, fortunately for the country, Pence and his advisers adamantly rejected.

Before becoming the head of OLC, Gaiser had never worked as a lawyer in the Justice Department or anywhere else in the federal government. Most recently, he had been Ohio’s solicitor general, and he previously clerked for some of the staunchest conservative judges in the country: Supreme Court Justice Samuel Alito, Judge Neomi Rao of the U.S. Court of Appeals for the D.C. Circuit and Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit. As Yoo put it to me, that may provide the “kind of background that you would hire” at OLC, but it is not the sort of resume that should put you in charge of the entire office. Sen. Sheldon Whitehouse, a senior Democrat on the Senate Judiciary Committee, called Gaiser “completely unqualified” for his role before he was ultimately confirmed on a party-line vote.

The OLC’s memo is not public, but according to news reports and accounts from lawmakers who have seen it, the office appears to have uncritically adopted a series of factual claims advanced by the White House that are highly contestable — and in some cases borderline nonsensical — in order to justify the strikes. Indeed, the administration itself seems to understand that, given a new report from the New York Times that the U.S. military has tried not to take survivors of the strikes into custody in order to avoid having to legally justify the campaign in the courts.

Most notably, the OLC appears to have concluded that the U.S. is in an armed conflict with drug cartels because they are using their profits to fund violence and extortion in our country. But as other legal and foreign policy analysts have noted, this makes little sense because there is no meaningful or credible evidence that these cartels are using their profits to promote organized violence in the U.S.

The idea that they are intentionally trying to kill Americans is also hard to take seriously, since active drug users provide the demand that ultimately keeps drug cartels in business, and you have to actually be alive in order to use drugs. On top of that, experts have noted that fentanyl, which has driven a rise in drug overdoses in recent years, largely comes from Mexico, which has apparently not been subjected to this military campaign.

The OLC’s memo also reportedly argues that the targets of the strikes are the drug shipments themselves — not the people delivering drugs — on the apparent theory that the drug sales are used to fund the cartels’ supposed hostilities against Americans. There is no apparent precedent for a theory like this, which could easily be adapted in a future administration to pursue objectives that many Republicans would hate.

“This is the thing I think conservatives should worry about,” Yoo told me. “Could a future President AOC say, ‘Oh my gosh, we are at war with the fossil fuel companies. They are inflicting masses of harm on the United States. It might be cumulative, but they’re doing it on purpose.’”

“You just make the same exact arguments,” he said. “That’s the danger you have once you start saying anything that hurts Americans could be an act of war.”

The American public should be able to see the administration’s legal analysis, including the OLC’s memo, so that they can judge the rationale for themselves, know who is actually producing it and — critically — see how far-reaching the logic is.

The idea that it needs to remain classified in its entirety makes little sense. The most sensitive part of the analysis would be the supposed factual summary, but although the government often goes to great lengths to protect intelligence sources and methods, the only method that appears to be at issue here — blowing up the boats without providing evidence or due process to the alleged traffickers — has been publicly touted by the White House itself in the form of endless self-congratulatory remarks and the release of some of the videos of the strikes. On top of that, the administration has already made the analysis available to some members of Congress, and the administration can redact anything that might actually reveal sensitive intelligence or operational details to the public.

At best, it appears that the Trump administration’s military crusade is proceeding based on severely deficient — and perhaps even disingenuous — analysis by administration officials who have relied on their own self-serving, logically dubious and hotly contested factual assertions in order to justify the use of lethal force to kill alleged, low-level drug traffickers who otherwise make just hundreds of dollars a day on these runs.

Some of the administration’s defenders have argued that the Trump administration’s approach draws support from former President Barack Obama’s use of drone strikes against alleged terrorists. One obvious flaw in that analysis is that Congress had at least passed an authorization for the use of military force in the wake of 9/11. Although some prominent legal analysts questioned whether the Obama administration had exceeded the scope of that authorization, Congress has certainly not provided any authorization whatsoever for military force against drug traffickers or the government of Venezuela — which, in fact, appears to be the Trump administration’s real target.

“The only way the strikes have any legal plausibility,” Yoo argued during our discussion, “is if we’re at war with Venezuela and the drug cartels are something like what we saw in Afghanistan after 2001 with the Taliban and al Qaeda being so intertwined together that the drug cartels are essentially acting as an auxiliary of the armed forces or intelligence services of Venezuela.”

“For some reason,” he continued, “the administration doesn’t want to say that’s what they’re doing, and they won’t legally justify it.”

But between the boat strikes and other actions by the White House — including Trump’s announcement that the airspace above and around Venezuela should be considered closed — it appears as though the Trump administration would like to start a war with Venezuela. As a practical matter, it may already have done so, albeit without any congressional authorization and without even bothering to make a case to the American public for it.

If the Trump administration is confident that its actions are lawful — as top officials have repeatedly claimed — they should have no problem releasing the OLC’s analysis.

Whether that happens or not, congressional investigators who are probing the administration’s actions should focus closely on the role of the government’s lawyers and the basis for the claims that they are making to support the White House’s ongoing military campaign.

If the Trump administration does not release the OLC’s analysis and a Democrat wins the White House in 2028, the next president should release all of the relevant legal analysis and conduct an investigation into the work of Trump’s lawyers, just as the Obama administration did in the aftermath of the Bush presidency.

These memos concern matters — of life and death, of war and peace — of the highest legal and political order. They should not be secret.

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