Trump’s lethal strike on a ship ‘transporting illegal narcotics’ raises yet more questions.
Trump’s lethal strike on a ship ‘transporting illegal narcotics’ raises yet more questions.
P resident Trump ordered a lethal military strike yesterday on a ship he alleges was “transporting illegal narcotics, heading to the United States.” In a post on Truth Social (reposted on X), he elaborated that the strike resulted in “11 terrorists killed in action.” He added that the eleven had been “positively identified Tren de Aragua Narcoterrorists” and that TdA has been designated by the U.S. government as a foreign terrorist organization (see here) and is “operating under the control of Nicolas Maduro.”
In essence, the president is taking the position that a vessel operated by a designated foreign terrorist organization, which is allegedly an arm of a hostile foreign regime and which is carrying illegal drugs for distribution in the United States, is functionally the same as a hostile foreign naval force that is in the act of conducting an armed attack against the United States. That is to say: The president claims inherent constitutional authority (under Article II) to use lethal force to stop — to destroy — the hostile foreign force, with no need for a congressional authorization of military force.
This is a controversial claim, to put it mildly.
To be sure, the Supreme Court has held since the Civil War–era Prize Cases (1862) that the president has not only the authority but the obligation to resist by appropriate force any invasion of our nation by a hostile foreign force; in such straits, a president need not “wait[] for any special legislative authority” prior to taking action.
Still, it is not obvious that the Venezuelan vessel in question — even if it was doing what the administration says it was doing — was conducting a military invasion. Moreover, let’s say the operatives on the vessel were engaged in narcotics trafficking; the United States government, very much including the Trump administration, has been treating narcotics trafficking in general, and Maduro’s narcotics trafficking in particular, as a crime subject to prosecution in court, not as acts of war.
Secretary of State Marco Rubio recently increased to $50 million the reward for information leading to the apprehension or conviction of Maduro (formally known as Nicolás Maduro Moros), the successor of Hugo Chávez who has ruled Venezuela for a dozen years. This reward, which has been increased over time, stems from the Justice Department’s indictment of Maduro and over a dozen other Venezuelan officials on narcoterrorism charges.
That happened in 2020, during the first Trump administration. The United States alleges that Maduro directly commands the Cartel of the Suns (Cártel de los Soles), a reference to the sun insignia affixed to the uniforms of top Venezuelan military officials said to be members of this narcotics trafficking enterprise. Our government further alleges that Maduro’s Cartel of the Suns “facilitates” and provides material support to TdA — as the Treasury Department asserted in designating the Cartel of the Suns as a Specially Designated Global Terrorist less than two weeks ago. (It is a felony to provide material support to a designated foreign terrorist organization.)
Since Maduro’s theft of the 2024 Venezuelan presidential election, the United States government has not formally recognized him as the country’s legitimate leader. (I have to say “formally” because our government has negotiated with Maduro — i.e., has recognized him as Venezuela’s de facto leader — in connection with the release of American prisoners and the repatriation of Venezuelan prisoners.) Earlier this year, Trump issued a proclamation under the 1798 Alien Enemies Act (AEA) asserting that TdA, under Maduro’s direction, is engaged in an invasion of or predatory incursion in the United States. A divided three-judge panel of the Fifth Circuit U.S. appeals court yesterday invalidated Trump’s AEA proclamation, concluding that TdA’s activities do not amount to an invasion or predatory incursion.
The indictment against Maduro describes a hybrid scheme conjoining hostile military operations with drug trafficking crimes. Maduro and other Venezuelan officials are alleged to have
abused the Venezuelan people and corrupted the legitimate institutions of Venezuela — including parts of the military, intelligence apparatus, legislature, and the judiciary — to facilitate the importation of tons of cocaine into the United States.
The cocaine trafficking, at this scale and backed by armed forces, is thus analogized to a hostile military operation:
The Cartel de Los Soles sought not only to enrich its members and enhance their power, but also to “flood” the United States with cocaine and inflict the drug’s harmful and addictive effects on users in this country. Thus, whereas most drug-trafficking organizations in South and Central America have sought to recede from their roles in importing narcotics into the United States in an effort to avoid U.S. prosecution, the Cartel de Los Soles, under the leadership of MADURO MOROS and others, prioritized using cocaine as a weapon against America and importing as much cocaine as possible into the United States. [Emphasis added.]
The New York Times reported a month ago that the president signed a directive authorizing the U.S. armed forces to engage in military combat against various cartels in Latin America, including Venezuela. More recently, U.S. naval forces have massed into a significant presence in the Caribbean, close to Venezuelan territorial waters.
As the Times reports (see here and here), the deployment includes at least three guided-missile destroyers and the Iwo Jima Amphibious Ready Group, comprising three ships (the USS San Antonio, Iwo Jima, and Fort Lauderdale) carrying 4,500 sailors. Also deployed are 2,200 Marines from the 22nd Marine Expeditionary Unit. That contingent has spurred speculation about potential combat in Venezuela, with the objective of ousting Maduro. As Tuesday’s strike on the vessel allegedly transporting drugs and TdA operatives illustrates, this is serious firepower. While the Maduro indictment of five years ago focused on cocaine, the current operation is homed in on Maduro’s fentanyl trafficking (not that these are mutually exclusive).
It is not clear to me that the president’s theory is going to fly such that he is free to invoke the laws of war — i.e., to treat Venezuelan drug traffickers as terrorist enemy combatants subject to military force without congressional authorization, at least when the administration can plausibly say the traffickers are in the act of an “attack” (as the president deems an importation of narcotics to be).
Consider, for example, the Clinton administration’s formal designation of al-Qaeda as a foreign terrorist organization in 1999. By then, this jihadist organization had actually carried out mass murder attacks (as opposed to supplying drugs that resulted in the deaths of thousands of American drug users). Yet, that mere designation was not thought sufficient to unleash large-scale combat operations. Wartime combat operations against al-Qaeda did not commence until Congress authorized the use of military force after the atrocities of September 11, 2001 — although President Clinton did order ineffectual retaliatory strikes in August 1998, a couple of weeks after the jihadists bombed American embassies in Kenya and Tanzania.
There is an important precedent. In December 1989, President George H. W. Bush ordered American forces to invade Panama to depose and capture its ruler, General Manuel Noriega, who — like Maduro — had been indicted by the Justice Department for drug trafficking. The invasion resulted in the deaths of 23 U.S. soldiers and three American civilians, and the Pentagon estimated that 516 Panamanians were killed (314 soldiers and 202 civilians). President Bush did not obtain congressional authorization. Yet, there were salient circumstances that distinguish the Panama situation from the current U.S. confrontation with Venezuela: Based on long-standing treaty authority, the United States had a military presence and security responsibilities in the Panama Canal Zone. Plus, prior to invasion, Noriega’s regime had declared war against the United States and there had been attacks on U.S. personnel. And since the objective was to return Noriega to the U.S. for trial, there was a rationale (albeit a law enforcement rationale) for attacking rather than openly seeking permission to attack.
By contrast, President Trump is deducing Venezuelan warmaking against our country based mainly on drug trafficking, not military attacks or a declaration of war. (I am not ignoring that Maduro has taken American prisoners on bogus pretexts of lawbreaking; but so have other regimes, Russia most notably, and the administration has not cited it as support for combat operations.)
Because Trump has, as usual, chosen to act unilaterally but has not endeavored to explain the parameters of the authority he claims, obvious questions arise. How extensive is the military force he has authorized? Does it anticipate only operations on the high seas or is an invasion of Venezuela contemplated? Trump contends (the Fifth Circuit notwithstanding) that TdA, directed by Maduro, has invaded the U.S. or is conducting a predatory incursion on our territory; so, are TdA members now being deemed enemy combatants? Has the president authorized lethal force against them if they are encountered in the U.S.? And what about captures, including the apprehensions of Venezuelans whom the Justice Department has indicted on narcoterrorism charges? Are such captured Venezuelans going to be brought into the U.S. criminal justice system for civilian trials? Are they going to be subjected to military detention as alien enemy combatants?
These and many other matters have to be sorted out. Indeed, if it is ultimately determined that U.S. government officials are conducting lethal operations even though the laws of war do not actually apply, they are going to be accused of heinous crimes.
Under circumstances in which it is anything but crystal clear that President Trump is responding to hostile military force, as contrasted with responding to serious crime, it is incumbent on Congress to act. In our constitutional system, it is Congress, not the president, that has the power to declare war and, derivatively, to authorize combat operations. In addition, Congress has the power to authorize the president to detain hostile operatives as enemy combatants, and to make clear whether the president is authorized to take the actions (including capture and summary deportations) that he is now dubiously taking under the AEA.
President Trump obviously prefers unilateral executive action. Our governing framework, however, resists the agglomeration of power in one branch of government, effectively unchecked by the coordinate branches — particularly Congress.
So, as is too often the case, we’re left to ask: Where the hell is the Republican-led Congress?