Self-Defense?

As I listened to this week’s first episode of The Editors today, something Jim said made me kick myself over having missed it. Our friend Abe Greenwald made a similar point on the Commentary podcast.

Both of them invited our attention to Trump White House Press Secretary Karoline Leavitt’s claim of “self-defense” regarding the controversial second strike that killed two shipwrecked survivors of the first September 2 missile attack on a suspected drug boat. Jim and Abe made excellent points about how this self-defense claim was absurd on its face (there being no threat out in the middle of the ocean from the remnants of a small boat and whatever suspected drug cargo remained after it had been hit by a first round of missile fire). The self-defense gambit is also in tension with other rationalizations that administration officials have given.

Their calling attention to Leavitt’s comments has put me in mind of a different point: the misleading of Congress.

Let’s get to Leavitt’s exact statement. I wanted to make sure I had it right, so I transcribed it from a video of parts of the press conference. (The pertinent exchange with a reporter starts around the one-minute mark.) Upon being asked to explain the administration’s legal basis for contending that the second strike was lawful, the press secretary stated:

The strike conducted on September 2nd was conducted in self-defense to protect Americans in vital United States interests. The strike was conducted in international waters and in accordance with the law of armed conflict.

I left in the bit about international waters for completeness purposes. I’ll have something to say about that at the end of this post. For now, let’s stick with self-defense.

The video is helpful here. It allows us to observe that, when the fraught question that every Trump national security official knew Leavitt would be asked was posed, the press secretary reached for a prepared document and then read the statement excerpted above. Clearly, some thought went into this answer.

But maybe just enough thought to try to get through a difficult press conference, and not enough to ensure consistency with prior administration representations.

A month ago, as I detailed at the time, the administration was up against a congressional deadline. If a president deploys U.S. forces and conducts combat operations without congressional authorization, then the 1973 War Powers Resolution is triggered. Under its terms, once the president notifies Congress that U.S. forces “are involved in an attack or hostilities,” the president must terminate any use of military force in that connection unless, within 60 days, Congress has either declared war or enacted an authorization for the use of military force (AUMF).

Obviously, Congress has not declared war or enacted an AUMF. Yet, the administration informed lawmakers that no compliance with the War Powers Resolution was necessary — i.e., that the 60-day limit was inapplicable — because the combat operations off the coasts of South and Central America did not rise to the level of “hostilities.”

How could that be? After all, the administration had previously described the campaign as a non-international conflict against nonstate actors (the cartels). Plus, by then our missiles had killed at least 64 people in approximately 15 attacks — in the month since, the totals have risen to 83 people killed in attacks on 22 vessels.

Answer: The Trump Justice Department’s Office of Legal Counsel reasoned that because the strikes are executed by drones, which are guided from places remote from the area attacked, no U.S. miliary personnel are at risk of of harm.

This theory was elaborated on by an administration official in an email to the Washington Post:

The operation comprises precise strikes conducted largely by unmanned aerial vehicles launched from naval vessels in international waters at distances too far away for the crews of the targeted vessels to endanger American personnel.

So here’s my question: If we’re supposedly not in hostilities, despite all the missiles and all the dead people, on the rationale that our forces are not vulnerable to attack or counter-attack, even when the boats and crews are still intact, how could it be “self-defense” to attack a boat that we’ve already substantially destroyed by missile fire in the course of killing most of its crew?

This, obviously, is a rhetorical question. As I contended in the above-linked piece, (a) the “doesn’t rise to the level of hostilities” theory is laughable (although it’s been posited before by the Obama and Trump I administrations); and (b) among the reasons the administration has deployed such a large U.S. force in the Caribbean for this operation is that the military knows, based on hard experience, that we are always vulnerable to attack. For our enemies, the presence of U.S. forces is a target; our assets must be sufficiently formidable to discourage enemy attacks and protect our people when attacks happen.

My point for present purposes is that the Trump administration just says stuff — one day it’s that we intend these attacks to be lethal; the next day it’s that we needed to destroy the boat remnants (in the middle of nowhere) to remove navigation hazards; the next day it’s self-defense. There is no discernible concern about being consistent with what has previously been represented because, at least to this point, there has been no concern that Congress would take any action.

Last point: Leavitt’s inclusion of the administration mantra that the strike “was conducted in international waters” is also a red herring. To repeat, the dispositive issue when it comes to military force is whether there is an armed conflict. If there is, then the government is free to use military force wherever the enemy is operating; if there is not, then there is no authority to use military force and the happenstance that an encounter occurs in international waters (or the high seas) is irrelevant.

Moreover, international waters are not the Wild West. This is not a gray area: Congress has made importation of narcotics a serious crime; it is thus a regular practice for U.S. authorities to interdict suspected drug-trafficking vessels, search them, seize contraband, arrest and extradite traffickers, try them in federal court, and imprison them in federal penitentiaries.

There’s more to say about the commentary around the current controversy, but I’ll do that in separate posts.