Trump Notifies Congress That the U.S. Is at War with Drug Cartels

The more distant we are from an actual military threat, the more imperative it should be to obtain authorization from the people’s representatives.

T he Trump administration has informed Congress that the United States armed forces are engaged in hostilities against drug cartels and have killed operatives the president has unilaterally determined are “enemy combatants” because they are allegedly shipping quantities of illegal narcotics that kill Americans.

The notice was conveyed to Congress this week in a report that is required by statute — Section 1543a of federal war and national defense law (Title 50, U.S. Code) — when American military forces engage in hostilities. Although the law mandates notice within 48 hours of the engagement, the three reported U.S. missile attacks on seacraft began a month ago (on September 2), and the last one publicly disclosed by President Trump appears to have occurred almost two weeks ago, on September 19. (I’ve posted about the attacks here, here, and here, and Rich and I discussed them on the podcast this week.)

A copy of the notice, which is apparently sensitive but nonclassified, was obtained by the New York Times, which reports that it has been “sent to several congressional committees.” The Times, which summarized the document but did not post a copy of it, says the administration “stressed that about 100,000 Americans die annually from overdoses” of narcotics.

That may be true, but it does not make drug importation the legal equivalent of military hostilities — as if the people on those boats, even if they were doing what the administration says (but hasn’t tried to prove) they were doing, were engaged in the functional equivalent of bombing the United States.

Congress has made narcotics importation a serious felony crime fit for prosecution in the civilian courts. It has not authorized the executive branch to treat it as an armed attack to be countered by American military power. Obviously, narcotics trafficking is a significant crime problem, but American users obtain illegal narcotics voluntarily and, usually, nonviolently. The importation and distribution of illegal drugs is simply not analogous to a missile strike or other violent mass-murder attack.

As the president himself has pointed out, the increase in drug deaths in the United States has been attributed to fentanyl, which is manufactured in Mexican labs, often with precursor chemicals from China. Yet, the Trump administration has tied the boats our forces have attacked in the Caribbean to Venezuela (although it has not made that claim with respect to the third attack). Venezuela is a transportation hub, not for fentanyl, but for cocaine shipments, which originate in Colombia, Peru, and Bolivia; while not a major coca source, Venezuela’s location makes it an ideal shipping point. For example, when the Justice Department in the first Trump administration indicted Nicolás Maduro and members of his regime on narco-terrorism charges, it described them as having “caus[ed] tons of cocaine to enter and devastate American communities.”

The Trump administration’s notice to Congress seems confusing in light of the president’s prior Alien Enemy Act (AEA) proclamation against Venezuela’s Tren de Aragua (TdA) criminal gang, and his designation of Maduro’s Cartel de los Soles as a specially designated foreign terrorist (SDGT).

In the AEA proclamation, the president depicted TdA as “closely aligned with” the Maduro regime and part of “its military and law enforcement apparatus.” In the SDGT designation, the Trump administration asserted that Maduro and his regime used Cartel de los Soles as a vehicle for providing material support to TdA (which the administration by then had designated as a foreign terrorist organization). The administration elaborated that the cartel of Maduro, the head of the Venezuelan regime, was “carrying out its objective of using the flood of illegal narcotics as a weapon against the United States.”

In the notice to Congress that we are at war with the cartels, however, the administration does not claim that they are acting on behalf of a hostile foreign regime. To the contrary, the cartels are labeled “nonstate armed groups” that are engaged in “noninternational armed conflict” against the U.S. — meaning, armed hostilities conducted by a subnational entity that is not acting on behalf of a foreign sovereign.

That designation most notably has been applied to al-Qaeda. Yet, the differences in that situation and today’s involving the cartels are stark.

After several brazen terrorist attacks executed over the preceding eight years, al-Qaeda on September 11, 2001, instigated a war with our country by weaponizing four jumbo jets in what, in effect, were missile attacks that killed nearly 3,000 Americans. Within days, Congress voted overwhelmingly to authorize the use of military force. As a result, our armed forces not only carried out combat operations; they detained alien enemy combatants under the laws of war and tried some of those detainees for war crimes in military commissions that were initially ordered by President George W. Bush and later authorized by congressional statute.

As the Times report recounts, the Supreme Court recognized the non-international armed conflict with al-Qaeda as a war because of the mass-murder attack and Congress’s authorization of a forcible military response. (See Hamdan v. Rumsfeld (2006).)

This week’s Trump administration notice to Congress does not identify the cartels to which it applies. It does not say the cartels have engaged in actual hostilities against the United States. Rather, it reportedly claims President Trump has “determined” that the drug smuggling actions of the cartels “constitute an armed attack against the United States.”

They may be an attack of a sort. That’s why, for many years, our government has interdicted shipments and aggressively prosecuted smugglers. It’s why Maduro, members of his regime, members of Tren de Aragua, and other cartel figures are under indictments. But the drug smuggling, even in the aggregate, is not an armed attack if that term is to have any meaning. And acknowledging that narcotics shipments are not armed attacks hardly minimizes their seriousness — they are punished by decades of imprisonment and even punishable by death in some severe circumstances.

As I have argued a number of times, I do not believe that the Constitution, as originally understood, vested in any single official the unilateral authority to take the nation to war, or to use military force in the absence of true military threat to the United States and its vital interests. The Constitution aims to divide power. It assigns to Congress the power to declare war, provide for the armed forces, and make rules for military captures on sea and land. The president is the commander in chief, with the power to conduct warfare, but Congress principally was given the power to authorize it.

Administrations of both parties have long argued that historical gloss on the Constitution — the many more times force has been used than war has been declared — gives the president broad powers to use force without congressional authorization whenever the president believes doing so is in the national interest.

Furthermore, Congress’s power to declare war has been marginalized by the trend of redefining war as a continuing commitment of military power, especially ground troops, over an extensive period of time. Anything less than that (e.g., President Obama’s bombing of Libya in furtherance of promoting a hoped-for democratic transformation in the Middle East, and now, President Trump’s intermittently blowing up vessels suspected of transporting drugs) is a subset of hostilities that falls short of war and therefore needs no congressional approval.

I believe this is wrong. The more distant we are from an actual military threat to the United States, the more imperative it should be to obtain authorization from the people’s representatives. The Framers did not intend to endow in the president the power that President Trump is claiming. And as for the meaning of war, it makes no sense to me to disclaim as warfare military strikes of the type which, if carried out against us rather than by us, we would adamantly regard as acts of war.

It goes without saying that what I believe is beside the point. It is unrealistic to think the courts would intervene in the commander in chief’s judgment that the national security of the United States required the use of military force. And international law, such as it is, is not a meaningful deterrent to the use of force. Hence, we have reached a point at which the president believes he can use force whenever he sees fit for whatever serves the national interest as he sees it; Congress, rather than being asked for authorization, is reduced to using its powers to curtail military operations if it objects.

That is not the system we were bequeathed, but it is the system we now have. It’s a dangerous system — and I say that as one who has long held that the president must have robust authority to use military force without congressional assent if our nation and its vital interests are truly threatened.