Sort of.
Sort of.
M y friend Marc Thiessen makes some excellent points in his Washington Post column today (which I recommended to listeners of our podcast during my discussion with Rich Lowry this morning). He defends the Trump administration against war crime allegations related to the now infamous “double tap” strike that killed two alleged drug traffickers who were shipwrecked (because of the first missile strike) off the coast of Venezuela.
Relying on David Shedd, formerly of the Defense Intelligence Agency, Marc observes that double taps are not unusual. In combat, initial strikes often do not eliminate the threat and additional strikes are necessary to destroy the targeted enemy asset. This is obviously why, as I noted on Tuesday, the Trump administration has tried to shift the focus of the second strike from the shipwrecked people (the focus of media coverage initially, to which the administration did not effectively respond) to the remnants of the ship and its cargo.
Marc also points out that, in targeting cartels that it has designated as foreign terrorist organizations, the Trump administration is closely following the playbook of President Barack Obama:
On taking office, Obama dramatically escalated the use of drone strikes against terrorism targets after ending the CIA’s terrorist interrogation program — finding it was simpler to vaporize enemy combatants rather than capture them alive for questioning. So Obama forged what the New York Times called at the time a “take-no-prisoners policy,” ordering over 540 drone strikes on terrorists in Pakistan, Somalia and Yemen (including one that killed a U.S. citizen, Anwar al-Awlaki, leader of al-Qaeda in the Arabian Peninsula).
The strikes Obama ordered were similar to those Trump has carried out in the waters off of Venezuela. Obama used what were called “signature strikes” in which the U.S. targeted patterns of behavior denoting terrorist activity (“signatures”) even when the precise identity of the individuals being targeted was unknown. And he routinely carried out so-called “double-tap” strikes — hitting a target once and then striking again to take out any survivors or other terrorists who rushed to the scene after the initial hit.
I agree. I was a constant critic of Obama’s skewed application of the Bush–Cheney counterterrorism strategy. The Bush administration had correctly emphasized capturing and detaining alien enemy combatants in order to gather intelligence, which enabled our government to thwart terrorist attacks. In the 2008 presidential campaign, however, Obama demagogued interrogations of terrorists (as if all of these were torture sessions) and their detention without trial at Guantanamo Bay (a highly humane detention camp, which was not among the now notorious CIA “black sites”). He wanted to return counterterrorism to the Clinton-era law enforcement paradigm. When that proved politically impossible, Obama was reduced to killing terrorists we might otherwise have apprehended and detained for intelligence-gathering purposes. Perversely, the “humane” option had become drone strike rather than detention.
That said, I have two problems with Marc’s analysis.
First, Obama’s authority to kill al-Qaeda terrorists did not stem from al-Qaeda’s designation as a terrorist organization. It was based on Congress’s authorization of military force. That AUMF remained in effect throughout Obama’s presidency (as it still does).
Obama’s September 30, 2011, drone strike that killed Anwar al-Awlaki and his companions in Yemen was much criticized: Awlaki was an American (as well as a Yemeni) citizen. When he was struck, he was not on a battlefield or carrying out a jihadist attack (though he could have been planning one). Another American citizen, Samir Khan — the publisher of Inspire, al-Qaeda’s online English-language magazine — was also killed in the strike. Nevertheless, Awlaki was a legitimate military target because of Congress’s AUMF — he was not only an al-Qaeda operative; he was also implicated in the 9/11 attacks (as I detailed a number of times, including here). When Congress has authorized military force, Americans who join forces with the enemy are legitimate targets, as illustrated by Ex parte Quirin, the Supreme Court’s World War II–era case involving Nazi saboteurs, including at least one American citizen, who were captured, tried by military commission, and promptly executed.
There is no AUMF covering the suspected drug traffickers whom Trump is targeting in the high seas off South and Central America. Moreover, they are not engaged in terrorist activity as that term is defined in U.S. law, notwithstanding that the Trump administration has dubiously designated the cartels as foreign terrorist organizations (FTOs). (I excerpted and discussed the federal definition of terrorist activity, drawn from Section 1182(a)(3)(B)(iii) of immigration law, here.)
You know how you know the cartels are not conducting terrorist activity? As we discussed on the podcast today, if the cartels had conducted terrorist mass-murder attacks against the United States, rather than shipping cocaine to the lucrative American market for that drug, we wouldn’t be talking about double taps and Trump’s lack of congressional authorization. If a terrorist ship was loaded with explosives and guns rather than bags of cocaine, everyone would agree that our armed forces would need to strike the target as many times as it took to destroy it. And Trump would already have congressional authorization because, as was the case after 9/11, lawmakers of both parties would be demanding to vote in favor of military force; they would enact an AUMF even if Trump didn’t ask for it.
So that’s the problem. The analogy between Latin American drug cartels and al-Qaeda fails because there is no congressional authorization for military force against the former as there is against the latter and because al-Qaeda was incontestably engaged in terrorist activity, which the cartels are not — at least vis-à-vis the United States. (Under the FTO designation statute, Section 1189 of immigration law, even if an organization engages in terrorist activity, it may not properly be designated unless “the terrorist activity . . . threatens the security of United States nationals or the national security of the United States.”)
Here’s my second problem. Marc clearly apprehends that the post-9/11 AUMF, coupled with al-Qaeda’s unambiguously terrorist attacks (in contrast to the cartels’ moneygrubbing drug trafficking), make Obama’s drone strikes much easier to justify than the military strikes in the Caribbean. So he adds:
Even if one did not accept that Trump’s terrorist designation justified strikes against the cartels, there is another legal basis for military action: The administration has also argued in court that cartels — including Tren de Aragua and Cartel de los Soles — have “infiltrated” the Venezuelan regime’s “military and law enforcement apparatus” and “taken control over Venezuelan territory” resulting in a “hybrid criminal state.” As John Yoo, former deputy assistant attorney general in the Office of Legal Counsel, told me, if the cartels are part of the Venezuelan regime, then they are effectively “an auxiliary attachment to the regular armed forces and the intelligence agencies in Venezuela” and are thus legitimate targets of military action against the Venezuelan state.
Now, you’ll find no more enthusiastic an admirer of our mutual friend John Yoo than moi. But the problem is that the administration has retreated from the claim that Tren de Aragua and Cartel de los Soles are arms of the Venezuelan government.
Although it would be far better for the president to seek congressional authorization for military action against Venezuela (as our editorial has urged, and as Noah Rothman and Dan McLaughlin have argued), I freely concede that the legal case for using force against Maduro’s regime without congressional authorization is marginally better than the case for using such force against the cartels. Nevertheless, after a lot of heavy breathing about links between the cartels and Maduro, the administration formally informed Congress that our armed forces are in a non-international conflict because the cartels are non-state actors.
Quietly, officials have walked back the claim that the cartels are incorporated in the Venezuelan regime, undoubtedly because our intelligence agencies assess that it’s not true. The National Intelligence Council has opined that Maduro does not direct TdA, and despite the DOJ’s Maduro indictment, which describes Cartel de los Soles as an entity led by Maduro, there is some dispute about whether it exists as a stand-alone cartel. There remains the possibility that “los soles” is better understood as a status held by certain high-ranking regime officials who wear a sun insignia and are believed to profit from drug trafficking.
Marc Thiessen is right that Trump is using the Obama model for drone strikes. But Obama was relying on the AUMF that Bush 43 prudently sought and obtained from Congress — which Congress overwhelmingly approved because al-Qaeda, undeniably engaged in terrorism, had just slaughtered nearly 3,000 Americans.