President Donald Trump and his top white House aides pushed for lethal strikes on Western Hemisphere drug traffickers almost as soon as they took office in January, and in the past 10 months have repeatedly steamrolled or sidestepped government lawyers who questioned whether the provocative policy was legal, according to multiple current and former officials familiar with the debates.
As Trump weighs what could be imminent military action against Venezuela and its leader, nicolásMaduro, while striking at alleged drug boats in the Caribbean Sea and eastern Pacific Ocean, new details are emerging about the evolution of a strategy that involves unprecedented U.S. military force against the narcotics trade – and, critics say, outsize legal risk.
The deadly attacks on small boats are being carried out by the Pentagon, which at Trump’s orders has amassed a vast array of warships, aircraft and troops in the region, including the largest U.S. aircraft carrier.But early on, according to two people familiar with the matter, the administration proposed having the CIA use its unique covert authorities to conduct the lethal strikes on drug traffickers that Trump and Stephen Miller, his powerful homeland security adviser, wanted.
The spy agency, under Director John Ratcliffe, was rapidly ramping up its counternarcotics arm, consciously modeling the effort to mirror the post-9/11 U.S. war against terrorists.
White House officials initiated proposals that envisioned the CIA taking the lead, and work began on drafting a presidential authorization for covert action, known as a “finding.”
Lawyers at the spy agency and elsewhere in the government were skeptical. Was killing civilian drug traffickers defensible under domesticlaw, they asked, if the cartels do not actually seek to attack Americans, even if the product they smuggle might lead to deaths in the United States? Was it legal to kill drug traffickers, many of them apparently low-level, without knowing their identities?
“There is no actual threat justifying self defense – there are not organized armed groups seeking to kill Americans,” said one person familiar with the legal debate, who like others interviewed for this report spoke on the condition of anonymity to avoid retribution and because of the matter’s sensitivity.
Though the hand behind covert actions is supposed to be hidden, Miller and his team wanted to publicize any strikes on what Trump has deemed “narcoterrorists,” including through videos of drug labs or boats being blown up, one person familiar with the matter said.
Amid pushback on CIA action from lawyers in the late spring, the administration forged ahead with an alternative plan that was already under discussion: to use the U.S. military. And it came up with a legal justification that national security law experts inside and out of government have said does not stand up to facts: that the country was in a “non-international” armed conflict with “designated terrorist organizations.”
this account of the evolution of the Trump administration’s lethal counter-drug strategy is based on interviews with almost 20 current and former officials and other people familiar with aspects of the discussions.
White House Legal Scrutiny Intensifies Amidst Controversial Cartel Strikes
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The White House National Security Council (NSC) is facing increased legal scrutiny as it navigates a series of controversial strikes against drug cartels. Despite a recent restructuring, the NSC actually has more lawyers dedicated to its portfolio than previously, according to an anonymous administration official. However, a key vacancy – the NSC legal adviser position – remains unfilled, raising concerns about the quality of legal counsel available to White House principals.
“The absence of a seasoned national security lawyer serving in that role means that the principals in the White House are not getting the best national security legal advice that they can,” explained Carrie Cordero, a national security lawyer who served in both the Bush and Obama administrations and is now a senior fellow at the Centre for a New American Security.
Meanwhile, career civilian lawyers at the Defense Department were largely excluded from discussions regarding the cartel strikes, a decision made by political leadership.
The Justice Department’s Office of Legal Counsel attempted to provide a legal foundation for the strikes with a classified opinion released this summer. The memo reportedly argues the U.S. is engaged in an armed conflict with “narcoterrorists,” justifying the use of lethal force as an advancement of national interest without triggering the constitutional requirement for congressional authorization.
This opinion was the result of a restricted interagency group comprised of four career lawyers – including two uniformed military attorneys – and four political appointees, who unanimously agreed the actions were legally permissible for the President.
The Defense Department has denied any internal concerns regarding the legality of the strikes.Spokesman sean Parnell stated, “The Defense Department categorically denies that any Pentagon lawyers…with knowledge of these operations have raised concerns…regarding the legality of the strikes conducted thus far because they are aware we are on firm legal ground.” He further affirmed that current operations are lawful under both U.S. and international law and in compliance with the law of armed conflict.
In August, the administration formally determined the U.S. was in an armed conflict with drug cartels, a determination communicated to military officials. Shortly after, in early September, U.S. special operators struck a vessel allegedly carrying “Tren de Aragua Narcoterrorists…operating under the control of Nicolás Maduro,” according to former President trump.
However, family members of the 11 individuals killed in the strike disputed claims of affiliation with the Tren de Aragua gang, admitting to transporting marijuana and cocaine but denying any direct involvement with the organization. U.S. intelligence agencies have also determined the Venezuelan government does not directly control the group.
Trump formally notified Congress of the strike two days later,on September 4th.
The situation is further elaborate by recent changes within the CIA, where Director John Ratcliffe appointed his deputy, Michael Ellis, as temporary general counsel at the end of September.
Concerns Grow Within Military Over Legality of Strikes Against Drug Traffickers, Sparking Debate and Political Fallout
Recent reports indicate growing unease within the U.S. military regarding the justification for using lethal force against suspected drug traffickers. The directive, reportedly initiated under the previous administration, has triggered legal and ethical concerns among service members, some of whom are questioning whether alleged criminals meet the threshold for military strikes traditionally reserved for terrorist organizations.This situation has escalated into a public debate, with lawmakers urging service members to refuse potentially illegal orders and a former president accusing them of “sedition.”
Legal and Ethical Concerns Within the Military
The core of the issue lies in the legal and ethical implications of broadening the scope of military engagement beyond customary counterterrorism operations. As reported by The Washington Post, some troops have struggled to reconcile targeting drug traffickers with the established rules of engagement for groups like the Islamic State. https://www.washingtonpost.com/national-security/2023/12/08/military-drug-traffickers-lethal-force/
This discomfort has manifested in several ways:
* Requests for Legal Sign-Off: Junior officers reportedly sought written confirmation from military lawyers (judge advocates general) before participating in strikes, fearing potential legal repercussions. These requests, according to sources, were largely unanswered.
* Concerns About Future Scrutiny: Service members are worried about potential investigations by a new administration or Congress, anticipating increased scrutiny of the operation’s legality.
* Pentagon Lawyer Involvement: In recent weeks, civilian lawyers at the Pentagon have begun participating in strike discussions and are reportedly raising concerns about the use of lethal force.
These internal concerns highlight a fundamental question: does the fight against drug trafficking fall within the legal authority granted to the military? The legal basis for such operations remains a point of contention.
Lawmaker Response and Political Backlash
The situation escalated publicly with a video released on November 19,2023,by six Democratic lawmakers – all veterans of military or intelligence service. The lawmakers directly addressed service members and intelligence professionals, stating, “You can refuse illegal orders. No one has to carry out orders that violate the law or our constitution.” https://www.nbcnews.com/politics/national-security/democratic-lawmakers-warn-service-members-illegal-orders-trump-response-rcna92491
This message was swiftly condemned by former President Donald Trump, who, on his Truth Social platform, labeled the lawmakers’ comments “dangerous to our country” and later accused them of “SEDITIOUS BEHAVIOR, punishable by DEATH!” These accusations have further inflamed the debate and raised concerns about the potential for political interference in military affairs. Sedition, defined as inciting rebellion against the authority of a state, is a serious crime.
understanding the Legal Framework
The use of the military for domestic law enforcement is generally restricted by the Posse Comitatus Act of 1878. https://www.justice.gov/usam/posse-comitatus-act-18-usc-1385 This act generally prohibits the use of the U.S. military to enforce civilian law, including drug enforcement. Exceptions exist, particularly in cases where Congress specifically authorizes military involvement or when the President invokes emergency powers. The legal justification for the recent strikes against drug traffickers remains unclear, and critics argue it may exceed the bounds of existing legal authority.
Key Takeaways
* Growing Military Discomfort: Service members are expressing serious legal and ethical concerns about targeting drug traffickers with lethal force.
* Legal Ambiguity: The legal basis for these strikes is unclear and potentially conflicts with the Posse Comitatus Act.
* Political Polarization: The issue has become highly politicized, with lawmakers and a former president offering sharply contrasting views.
* Potential for Legal Challenges: Service members involved in these operations may face legal scrutiny in the future.
Looking ahead
The controversy surrounding these strikes is likely to continue, particularly as a new administration takes office. Increased clarity regarding the legal justification for the operation, as well as a clear articulation of the rules of engagement, will be crucial to restoring confidence within the military and addressing the concerns raised by lawmakers and the public. The debate also underscores the need for a broader discussion about the appropriate role of the military in addressing complex challenges like drug trafficking.
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