On Oct.14, President Donald Trump announced on social media that the United States had once more attacked an alleged drug smuggling small boat in international waters off the coast of Venezuela. This is the latest strike in what the Trump management has, in a notification to Congressdesignated a “non-international armed conflict” against Tren de Aragua, a narco-group based in Venezuela. simply put, the administration has invoked war powers to justify the targeting of these vessels and, ostensibly, other assets of the institution in the future – perhaps even inside Venezuela.
This assertion that the United States is now engaged in a “war” against Tren de Aragua matters for two profound reasons. First, these attacks may very well expand into Venezuelan territory with an almost certain risk of a Venezuelan military response. While such a response is unlikely to present a important impediment to U.S.forces, what began as a limited action against a handful of alleged drug smugglers could quickly expand to an interstate war, regime change (which recent news suggests may be the administration’s ultimate goal), and all the second and third order consequences the United States has experienced that are often harder to address than defeating the enemy in battle.
Second, by invoking the characterization of armed conflict against what is by any objective measure a criminal threat that does not justify that invocation, the United States is setting a precedent of pretextual invocation of unusual combat power that other countries may follow in the future, resulting in overzealous claims of war powers, international destabilization, and abuse of essential human rights.
This raises a critical question: Do the facts actually support treating this group’s threat as an armed conflict – one that would justify moving from ordinary law-enforcement powers to the extraordinary powers allowed in war? While the Trump administration asserts a categorical “yes” to this question,the objective facts point to a categorical “no.”
Crossing the Line
States bear a fundamental obligation to protect their peopel and territory from a wide array of threats. This obligation, and the state’s authority to fulfill it, is beyond dispute. But this does not mean that every threat justifies the use of combat power – a power restricted to “war,” what international law designates as armed conflict.
Like domestic law, international law – thru the operation of human rights principles – normally limits the power of the state to disable criminals who pose a threat. That power is fundamentally constabulary in nature – law enforcement authority. This means states may only resort to using deadly force as a last resort and only in response to an actual or imminent unlawful threat (not a future threat) of death or great bodily harm. This is why police carry less-than-lethal weapons, like Tasers, enabling the use of minimum necessary force to subdue a threat. Once an individual is subdued, subsequent deprivation of liberty – detention – requires a criminal charge, prompt appearance before a judicial officer to validate the arrest, and ultimately trial and conviction with the accordant imposition of penal sanction.
if, in contrast, the state is engaged in an armed conflict, the range of lawful measures to bring the enemy – in the collective sense – into submission is far more permissive. The legality of these measures is derived from international law, namely the law of armed conflict. Members of the enemy armed group are subject to deadly attack as a measure of first resort, and those attacks are justified based on a determination of enemy belligerent status and not based on the individual posing an actual or imminent threat. This attack authority terminates only if the enemy belligerinvolved in an armed conflict with a non-state group: whether the activities of that group have overwhelmed (or are about to overwhelm) normal law enforcement response capabilities.This was the true essence of the concept of non-international armed conflict as the 1949 inception of that legal concept: Does the extraordinary nature of the threat necessitate invocation of extraordinary response authority?
To answer this question, the Trump administration has emphasized – and exaggerated – the fentanyl death toll in the United States. There can be no real debate that the loss of approximately 80,000 lives each year to this pernicious illegal drug is tragic. Setting aside a recent report that Venezuela plays no role in the movement of fentanyl,although some colombian cocaine passes through that country,harmful effect does not automatically indicate the United States is engaged in an armed conflict with a narco syndicate responsible for a portion of that influx. Nor does it justify the administration’s analogy to the threat posed by – and the U.S. response to – al-Qaeda. The fundamental difference between these two threats is intent: Unlike al-Qaeda,there is no objective support for the conclusion that Tren de Aragua intends to inflict death and destruction on the united States or its citizens,armed forces,or facilities abroad. Indeed, if the group is motivated by the profits derived from the sale of illegal narcotics, it is indeed counter-intuitive to infer an intent to kill the consumers or provoke the type of armed response they now confront.
The administration should be applauded for designating this group (and other narco groups) as foreign terrorist organizations. This move justifiably expanded federal criminal and immigration powers to deprive the group of resources (most notably triggering the Material Support to Terrorism statute, a federal crime that prohibits anyone from providing resources or support to the group knowing the group has been so designated). But this in no way indicates the existence of an armed conflict. Nor does it, or the illegal activities of the group, justify invocation of unilateral presidential war powers, an invocation historically restricted to protecting the nation and its citizens abroad from actual or imminent armed attacks. Rather, the Trump administration’s assertion of armed conflict appears to be a pretext to justify invoking both constitutional and international legal authority inapplicable to this situation.
Just Because You Can Doesn’t Mean You Should
Is all this functionally irrelevant? In a sense, yes. It seems clear that there are immense political advantages to this expansive assertion of legal authority: U.S. forces face minimal risk; the president looks uniquely aggressive in combating the drug problem; there is little sympathy for the alleged drug-runners being attacked; and venezuela has neither the interest nor capacity to intercede on their behalf. Nor is there meaningful domestic legal risk. unlike so many of this administration’s moves, there is almost no chance a U.S. court will entertain a challenge to the president’s authority in this case. this leaves only Congress to scrutinize and ultimately check abuse of war power by a president, but as Justice Robert Jackson