President Trump creates distance between himself and the second September 2 strike, but the problem is that there is no armed conflict, period.
As the directors on the set say, “take two.”
In a post on Saturday evening, I contended that Defense Secretary Pete Hegseth’s first “defense” of a second U.S. missile strike on September 2, which killed two shipwrecked survivors of an initial missile strike, was more like a guilty plea. With indignation, but without trying to refute any of the factual claims in a Washington Post report about the strikes, Secretary Hegseth asserted, “As we’ve said from the beginning, and in every statement, these highly effective strikes are specifically intended to be ‘lethal, kinetic strikes.’” But the laws of armed conflict prohibit lethal, kinetic strikes against combatants who’ve been rendered hors de combat (i.e., out of the fighting); hence, it is not a defense to say, “But it was our intention all along to kill them.”
Not surprisingly, the White House figured out that this wasn’t going to fly, so we now have an actual defense. According to President Trump, Hegseth now says he didn’t order what the Washington Post’s unidentified sources say he ordered — to wit, that everyone on the vessel suspected of trafficking illegal drugs on the high seas was to be killed.
I hope that’s true. Of course, if it is true that he didn’t give the order, how odd was it that Hegseth’s first two responsive posts over the weekend were exactly what you would expect from someone who did give such an order: first, the above unflinching declaration of intention to execute “lethal” strikes, and second, the cruder, “We have only just begun to kill narco-terrorists.”
The president ostensibly defended the secretary, insisting that Hegseth had said “he did not say that, and I believe him, 100 percent.” But Trump also shoved Hegseth halfway under the bus, qualifying that, “I wouldn’t have wanted that. Not a second strike.” That raises the stakes because, obviously, somebody ordered the second strike . . . and congressional Republicans who lead the relevant committees have vowed to join Democrats in getting to the bottom of that.
To be clear, as I have maintained for three months since the attacks started, I believe all of the killings are lawless. There is no armed conflict. The Trump administration has imagined one by equating the suspected trafficking of illegal narcotics with forcible attacks by the armed forces of foreign enemies. The two things are not analogous, much less the same. Unless there is an armed conflict, the operators of the boats cannot be enemy combatants, even if they are criminals. The laws of war allow our armed forced to target enemy combatants, not mere criminals.
That said, in our system, the question whether the laws of war apply is principally for Congress, which is given the power to declare war in Article I. Constitutionally speaking, the president may use military force in the absence of congressional authorization only if vital American interests are forcibly attacked or threatened with forcible attack.
This is sometimes a gray area, but not so here. Congress has extensively addressed drug trafficking in the federal narcotics laws. In the United States, the importation of illegal narcotics is not considered an act of war. It is a crime that is punishable severely.
To take the most recent, notable example, former Honduran President Juan Orlando Hernández was sentenced to 45 years’ imprisonment for facilitating massive shipments of illegal drugs to the United States. He will apparently not serve that sentence, or even be tainted by a conviction, in light of President Trump’s shocking announcement that he will pardon Hernández. But the procedure in his case (he was indicted and convicted in the Southern District of New York), was consistent with federal practice in countless cases over decades: interdict drug shipments, seize cargo, arrest or extradite offenders, prosecute them in federal court, and incarcerate them in federal penitentiaries. Congress has thus been quite clear on how drug trafficking is to be addressed.
President Trump has tried to bridge the gulf between crime and war by claiming that the cartels are terrorist organizations. This reasoning, as I’ve explained at length, is hopelessly flawed for two reasons.
First, Congress has undertaken to define terrorist activity in federal law, and those exhaustive provisions do not include drug trafficking activity (which is also exhaustively defined). Second, while the administration has nevertheless designated the cartels as foreign terrorist organizations (FTOs), the statutory process of designating FTOs does not authorize the use of military force against them; it empowers the executive branch to seize assets and prosecute those who provide material support to FTOs. For example, in 2001, when al-Qaeda carried out the 9/11 attacks that killed nearly 3,000 Americans, it had already been a designated an FTO (in 1999); the combat operations against al-Qaeda took place only after Congress authorized the use of military force on September 18, 2001, a week after the 9/11 attacks.
Even if one accepts the administration’s dubious premise that our forces are in an armed conflict against nonstate actors (the cartels) whose operatives are enemy combatants, the second September 2 strike against the shipwrecked survivors of the first strike cannot be justified. I continue to believe, to the contrary, that none of the strikes can be authorized. The controversial second strike on September 2 is singular only in that its lawlessness is more blatant.