The Trump administration has sought to frame its lethal strike on September 2nd in the Caribbean—reportedly killing 11 as yet unidentified people—as just another military counterterrorism operation. President Donald Trump referred to those killed as “narco-terrorists” and what little formal legal justification the administration has presented repeatedly refers to an (unspecified) “designated terrorist organization.” Many Americans and members of Congress, inured by over 20 years of targeted killings of supposed “terrorists” may be willing to accept that representation. But the administration’s characterization is inapt and elides a vital distinction.
The Trump administration tries to cloak this fatal attack in the mantle of the “war on terror,” by using the rhetoric, tools, and trappings of military counterterrorism operations. Yet the similarities between the Caribbean attack and prior U.S. hostilities against al Qaeda, ISIS, and their affiliates are superficial at best. Unlike in those post-9/11 conflicts with jihadi fighters, the Trump administration has not attempted to justify the premeditated killing of human beings through the relevant legal framework: the law of war.
Nor can it convincingly do so. There is simply no credible argument that an armed conflict exists involving the United States and whoever was on that boat. Nor is there any credible argument that those on the boat presented an imminent threat of armed attack against the United States that could have triggered the initiation of an armed conflict. With neither of these facts being present, we are left with the premeditated killing of human beings, not in armed conflict and not in self-defense. Although the criminal liability of individuals is a matter for the courts, Americans engaging in such conduct would normally risk very serious charges, as discussed below.
As a former U.S. government lawyer who advised on the United States’ conflicts with jihadis, and as an often-vocal critic of how these conflicts have been waged (and indeed whether they should be waged at all), I am all too familiar with the abuses and overreaches of those wars – which in some cases bled into outright criminality.
But the Trump administration’s lethal strike in the Caribbean is categorically distinct from these prior controversies. With its fatal attack on a vessel in the Caribbean and vows to bomb more boats, the Trump administration is not so much seeking to stretch the legal underpinning of the war on terror to a new battlefield (which has been done all too frequently by past administrations). Instead, the administration is effectively asserting the prerogative to kill outside the law entirely.
The Legal Underpinnings of Targeted Killings in the War on Terror
For over two decades, the United States has used military force in the targeted killing of jihadi fighters in the so-called “war on terror.” Despite the legal and policy flaws of the war on terror—including the ways in which the executive branch unilaterally expanded hostilities to new enemies and battlefields—the use of lethal force had at its core a cognizable legal basis.
The United States launched the targeted killings of the war on terror in, in response to the prior armed attack on September 11, 2001 on the United States by al Qaeda, which killed almost 3,000 people. The United Nations Security Council recognized the United States’ right of self-defense in response to this attack. Congress enacted the 2001 Authorization for the Use of Military Force against those responsible for those attacks. Critically, the lethal U.S. response that followed was governed by the law of war, even if there was legitimate debate about the contours of how that body of law applied. And the U.S. Supreme Court (and lower courts) applied the law of war to the conflicts.
In short, as affirmed by multiple presidential administrations and U.S. courts, the hostilities with al Qaeda, and subsequent hostilities with their so-called “associated forces” and with ISIS, constitute armed conflicts governed by the law of war. This was despite the initial efforts by the Bush administration to create certain legal blackholes relating to the treatment of detainees in these conflicts—efforts subsequently rebuffed by the courts and Congress.
Specifically, these were non-international armed conflicts involving protracted armed violence between the United States and organized armed groups. The criteria indicative of whether an entity is an organized armed group (OAG) such that it could be engaged in an armed conflict (as opposed to a group of criminals or individual terrorists acting alone) include, inter alia, whether the OAG possesses a sufficient degree of military organization (such as command and control) to conduct hostilities, disciplinary rules and mechanisms, and ability to plan military operations and put them into effect.
Crucially, U.S. domestic law also does not cease to apply during armed conflicts, as has also been affirmed by the Supreme Court. The right of habeas corpus enshrined in the U.S. Constitution extends to those detained under the law of armed conflict at Guantanamo Bay, for example, and U.S. criminal laws also continue to apply.
The acknowledgement that these conflicts were governed by a cognizable body of laws is not meant to excuse or defend the level of violence seen in the war on terror. Indeed, the law of war permits considerable death and destruction that would otherwise be illegal—including the use of lethal force in the first resort against enemy combatants/fighters (who are not hors de combat or detained). Although the definition of who constitutes a combatant in the context of a non-international armed conflict can sometimes be contested at the margins, the U.S. government view has been the law of war permits the lethal targeting of individuals who perform “functions for the benefit of the group that are analogous to those traditionally performed by members of State militaries that are liable to attack.” The law of war does not permit the intentional targeting of civilians, unless and for such time as they are directly participating in hostilities.
Still, the law of war also imposes restrictions and prohibitions — it has bright lines that the United States has always recognized are applicable in international (state-to-state) and non-international armed conflicts (those involving non-state armed groups). These include, crucially, the requirement to distinguish between civilians and combatants. And the law of war creates consequences for the most serious violations. Indeed, some violations of the law of war—such as the targeting civilians—are war crimes.
Why the Law of War Doesn’t Apply and the Absence of Legal Justification for this Lethal Strike
Notwithstanding the Trump administration’s attempt to cloak its lethal strike on a boatload of people in the war on terror mantle, that conflict’s legal basis for killing people is completely absent here.
In prior conflicts, U.S. forces engaged in hostilities against jihadi fighters belonging to organized armed groups governed by the law of war. That is not the case here. Indeed, the Trump administration has not even attempted to make out the case that somehow the intentional and pre-planned killing of the people on the vessel was somehow permitted by the law of war. Instead, the White House is attempting to use the tools and rhetoric of military counterterrorism without the associated legal authorities and constraints. In this respect, this administration’s efforts echo prior attempts by the George W. Bush administration to wage aspects of the war on terror without the constraints of the law – but again, the predicate fact of an armed attack on the United States by an OAG, triggering the right of self-defense, was at least present at that time.
The administration has not argued, much less demonstrated that the unspecified “designated terrorist organization” is an OAG engaged in an armed conflict with the United States. The administration has not argued, much less demonstrated that the vessel, cargo, and/or passengers bombed were lawful targets. In its most formal legal justification yet, the administration does not even describe the specific individuals it killed or identified their alleged affiliation.
At bottom, the administration has not acknowledged that the law of war even applies—though it baldly asserts the operation was “fully consistent with the law of armed conflict,” a general statement of policy often made by the Pentagon. Indeed, this is one thing about which they are correct – the lens of “war,” is not the right one through which to view this premeditated killing.
In framing the use of military force against alleged criminals in Latin America as a war on terror, the administration has leaned heavily on the prior designation of several criminal entities in the region as “foreign terrorist organizations.” But these terrorist designations are legally a complete red herring. Not only were designations of these criminal groups as terrorists unprecedented and inappropriate, but they provide no authority to use military force. Moreover, these designations or otherwise labeling a group or person a “terrorist” does not magically transform them into a lawful target or otherwise permit the use of lethal force against them, nor does it create an armed conflict where one did not existed before that label is used.
Why Does It Matter?
The salient legal consideration that executive branch lawyers should have weighed before the attack is that, absent the limited permission provided by the law of war, the premeditated killing of human beings is a crime—even when carried out by the military outside of the United States. Murder is an offense under Article 118 of the Uniform Code of Military Justice. With respect to civilians, they have to contend with the federal criminal laws punishing murder on the high seas (18 U.S.C. § 1111) and conspiracy to commit murder outside the United States (18 U.S.C. § 956).
The Trump administration has thrown around the term “self-defense,” including in its War Powers report to Congress. In addition to providing a potential legal basis for using force under international law, in the domestic criminal law context, self-defense could—in principle—provide an affirmative defense to criminal liability, including for murder. Yet both as a matter of international and criminal law, the barebones references to self-defense read more as legal mad libs than a substantive theory, though they do sound more in international law. Certainly on the available information any claim of self-defense falls flat (as Mike Schmitt explains here with respect to international law).
For the purposes of criminal law, the administration has not articulated a legal argument as to how the self-defense would justify the killing of the specific people aboard that boat. In law enforcement contexts, such as interdictions involving the Coast Guard, lethal force can be used only if there is “an immediate threat of serious injury or loss of life.” There is no viable argument that this was the case in the attack on this vessel.
Moreover, the administration’s own statements have foreclosed reliance on a justification of self-defense. According to Secretary of State Rubio, President Trump was presented with the option to interdict the vessel (as is long-standing U.S. practice) but instead he elected to blow it up to “send a message.” Further, the New York Times reports that U.S. forces attacked the vessel after it had turned back towards Venezuela—travelling away from the United States or its more probable destination Trinidad and Tobago—further undercutting any argument premised on the supposed threat posed by the vessel.
The lethal strike in the Caribbean and the U.S. government’s failure to advance even a rudimentary legal justification for these killings matter not just because U.S. officials may have committed a serious crime, but also for what they portend about how the administration feels it can wield power. Members of Congress and American citizens who are either indifferent to the fates of alleged drug smugglers or regard the issue as a political winner for Trump need to recognize this situation for the emergency it is. The issue is not defending alleged drug smugglers, but whether the U.S. president can use unconstrained, lawless violence in violation of the criminal laws Congress has enacted.
The administration appears to think so. Despite its cursory references to self-defense, the absence of any credible legal justification for these killings suggests that the Trump administration is asserting the prerogative to kill outside the law. It has used that power to kill 11 people the President claims (without evidence) were “narcoterrorists.” If this is indeed the case, having used this lethal, unlawful power in the Caribbean, where might the President deploy it next? Against this backdrop, the administration’s liberal use of the term “terrorist”—including against criminal gangs, immigrants, and domestic political opponents—is especially unsettling.
Denying a License to Kill
Congress and the American public need to push back against the notion that the administration has a license to kill. Such opposition should include legislation to prohibit or even defund further U.S. military action in the Caribbean or elsewhere in the Americas. Even if such legislation fails, it may nonetheless send an important political signal.
Members of Congress should also conduct oversight with respect to this lethal attack–both to gather information and raise the salience of these killings by the Trump administration. If Republican committee leaders block such efforts, Democratic members should hold “shadow hearings” with expert witnesses.
U.S. political leaders—especially contenders for the 2028 nomination—should also make clear that they will push for accountability for those who conduct unlawful killings.
Trump’s assertion of the power to kill outside the law must be rejected. Notwithstanding considerable lawful powers the U.S. President is granted both by the Constitution and through congressional authorizations, there are still crucial legal limits on how the executive may wield lethal force. If the President is able to disregard those limits the implications are dangerous and destabilizing both at home and abroad.
– Brian Finucane, Published courtesy of Just Security.
