‘Narco-Terrorism’ Loose Ends

On Wednesday, we published my column about how the term “narco-terrorism” is legally meaningless, no matter how often Trump officials incant it as a rationale for killing suspected drug traffickers on the high seas in the absence of congressional authorization or an actual military conflict. The column was long, so I cut a couple of things out of it — specifically, about (1) the involvement of Emil Bove in the case of former Honduran President Juan Orlando Hernández, a so-called narco-terrorist whom President Trump appallingly pardoned on December 1; and (2) the state of play regarding the president’s Alien Enemies Act (AEA) proclamation.

This is the separate post I said I’d do regarding those elisions.

Hernández was convicted on charges arising out of a massive conspiracy, in confederation with violent cartels, that resulted in the importation of 400 tons of cocaine to the United States. You can be sure that this amount, which was proven beyond a reasonable doubt at trial, is vastly more than the combined total of suspected cocaine that was allegedly being ferried by the 87 suspected drug traffickers killed by the Trump administration since September 2.

Ludicrously, the president continues to claim that each time our armed forces bomb a suspected drug boat, it saves 25,000 American lives. We’re now up to 23 vessels (and counting); according to Trump math, then, the lethal strikes have saved 575,000 lives, even though, down here on Planet Earth, there were less than 81,000 drug-related deaths in the U.S. last year. But if Trump math were real, how many deaths do you suppose the White House would say were caused by the 800,000 pounds of cocaine Hernández helped import?

The Justice Department’s Hernández probe was run for a time by Emil Bove, Trump’s former lawyer who held a high-ranking position in the current Trump DOJ before the president appointed him to the prestigious Third Circuit appeals court. Bove, you’ll recall, is the Trump DOJ official who tanked the Eric Adams corruption case, prompting the prosecutors on the case to resign in protest.

Even as an appellate judge, Bove remains the subject of a judicial contempt probe of Trump DOJ officials for flouting a court order and then stonewalling. That was in connection with the summary deportation of alleged Tren de Aragua (TdA) members, dubiously claimed by the president to be alien enemies who were conducting an invasion of, and predatory incursion in, the United States. You’ll no doubt be shocked to learn that, despite being an officer of the independent judicial branch, Bove took time out to endorse the Hernández pardon — apparently before attending Tuesday night’s Trump political rally in Pennsylvania.

With regard to the alleged Venezuelan alien enemies, the Trump administration transported about 137 of them, without notice, to a prison in El Salvador previously determined by the U.S. State Department to be a human rights violator. The administration alleged (but did not establish in any legal proceeding) that the Venezuelans were members of TdA, which, at the president’s direction, the State Department had designated as a foreign terrorist organization (FTO).

Although that designation is legally dubious, it is probably sufficient under immigration law to predicate the removal of non-Americans alleged to be affiliated with an FTO. But the president did not want legal proceedings and due process, so he invoked the 1798 Alien Enemies Act (AEA), claiming the power to summarily deport the Venezuelans. The administration contended (incorrectly, as it later conceded) that this invocation was not judicially reviewable. Notably, the administration has not relied on its AEA assertions about TdA in attempting to rationalize the Caribbean missile strikes by which it is targeting TdA, among other cartels. (After the president initially maintained that TdA was controlled by the Maduro regime — a proposition U.S. intelligence agencies reject — the administration now claims that TdA and the other cartels whose alleged members it targets in lethal drone strikes are “nonstate actors.”)

A Trump-appointed district judge in Texas rejected the president’s reliance on the AEA, as did a divided panel of the Fifth Circuit (over a lengthy dissent by a Trump appointee). That was after the Supreme Court first held that the deportation of Venezuelans to El Salvador violated due process and, later, stopped the administration from repeating it.

The Trump DOJ has appealed the Fifth Circuit panel’s ruling to the full Circuit. So, dizzyingly, the administration is defending in court a proclamation in which the president said, “TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela”; yet, in its representations to Congress regarding the drone-strike campaign, the administration says that the cartels — both TdA and Cártel de los Soles — are nonstate actors, apparently unconnected to the Maduro regime (notwithstanding that the first-term Trump DOJ, in indicting Maduro in 2020 on narcotics trafficking charges, alleged that he “helped manage and, ultimately, lead the Cártel de los Soles as he gained power in Venezuela”).

Perhaps these seeming contradictions can be rationalized by the administration’s position that, although Maduro heads the regime that rules Venezuela, he is not the legitimate leader of that nation-state because he stole the last two elections; consequently, the reasoning would go, the cartels are technically nonstate actors, regardless of their connections (if any) to Maduro. Of course, such a position would make more sense if the administration had not negotiated with Maduro, as the leader of Venezuela, on matters such as deportation flights, and had not announced that the president’s overarching position is to butt out of how authoritarian regimes — e.g., Russia, China, Saudi Arabia, and Qatar — rig elections and repress their peoples.