My weekend piece is about President Trump’s lawless killings on the high seas off South America — the military campaign, unauthorized by Congress and unprovoked by any forcible attack on the United States, in which a large (and growing) contingent of our armed forces is firing missiles at boats suspected by the president and his subordinates of smuggling illegal narcotics.
When I substantially completed the weekend piece on Thursday, there had been nine reported missile attacks since September 2, with a death toll of 37. On Friday the administration announced a tenth attack, killing six more people.
In a social media post that included a short video clip of the attack, Defense Secretary Pete Hegseth asserted that, according to “our intelligence,” the vessel in question was “operated by” Tren de Aragua and was smuggling drugs. Notably, the administration is not even claiming the suspected drugs were en route to the United States; just that the TdA operatives were “trafficking narcotics in the Caribbean Sea.”
TdA is the Venezuelan gang the president has designated a foreign terrorist organization, and has proclaimed is conducting an invasion of, and predatory incursion in, the United States. The president’s proclamation (purportedly under the Alien Enemies Act) claims that TdA is acting under the auspices of the Maduro regime, a conclusion U.S. intelligence agencies — on whose information the administration is relying to justify the missile attacks on the high seas — do not endorse.
It is entirely possible, perhaps even probable, that all or most of the vessels our forces have attacked were in fact carrying drugs. But the president has offered no proof that this is the case, other than his say so — i.e., other than what he and Secretary Hegseth say is “confirmation” by “intelligence.”
Proof that the president is right about the drugs would not legally justify what he is doing. Still, one might think it would be forthcoming in light of the facts that the president has unilaterally instigated armed hostilities; importation of narcotics is a federal crime commonly prosecuted in our courts (see Section 952), so we need proof to take action; and while the president’s analogy of drug shipments to enemy military attacks is fatuous, it is his rationale for lethal attacks.
I’d note again that the president’s designation of cartels as terrorist organizations because they import drugs is dubious: the extensive definitions of terrorist activity in federal law do not include drug trafficking. And even if it weren’t dubious, the designation of terrorist organizations under congressional laws is not an authorization to use military force against them (it enables the government to prosecute their material supporters and seize their assets).
On that score, Hegseth’s bombastic comment is worth pausing over:
If you are a narco-terrorist smuggling drugs in our hemisphere, we will treat you like we treat Al-Qaeda. Day or NIGHT, we will map your networks, track your people, hunt you down, and kill you.
This might make sense if the cartels in question had done to the United States what al Qaeda did: a series of mass-murder attacks and plots over eight years, culminating in the 9/11 attacks that killed nearly 3,000 Americans in our homeland. That terrorist activity is why al Qaeda was designated as a foreign terrorist organization after Congress established that procedure in the mid-nineties (again, not to authorize force but to take law-enforcement and asset-seizure action).
TdA and its ilk have committed egregious crimes and deserve to be prosecuted accordingly; they are not al Qaeda, not even close.
As I’ve previously explained, moreover, the epithet “narco-terrorist” is just government rhetoric, it is not a formal legal designation. It appears to come from a federal drug statute, Section 960a, called “Foreign terrorist organizations, terrorist persons, and groups.” The statute does not create an offense called “narcoterrorism.” Indeed, it keeps separate the line between drug trafficking and terrorist activity: the penalty for drug trafficking is exacerbated if it is done to promote terrorist activity; the statute does not say that drug trafficking is terrorist activity.
In recent days, Hegseth has also ordered the USS Gerald R. Ford carrier strike group, including the Navy’s most advanced aircraft carrier, to the Caribbean. This signals that President Trump is serious about his threat to expand the military strikes from the high seas to land-based targets. The forces sent to the region also include the Army’s Special Operations Aviation Regiment and the 22nd Marine Expeditionary Unit, demonstrating readiness to attack on the ground and, potentially, to extract Venezuelan strongman Nicolás Maduro, whom the Justice Department in the first Trump administration indicted on drug trafficking charges.
Such an operation would have a precedent: President George H.W. Bush’s 1989 invasion of Panama, in which Manuel Noriega was apprehended and returned to the United States for trial on drug-trafficking charges. There are, however, salient differences.
The U.S. had a longstanding military presence in the Panama Canal Zone and treaty authority to take unilateral action to defend the Canal against any threat. Noriega, like Maduro, nullified an election that would have turned him out in the months before U.S. military action; but unlike Maduro, who has sought to appease Trump in recent months, Noriega’s government declared a state of war against the United States. Immediately afterwards, on December 16, 1989, Panamanian forces shot three U.S. officers at a roadblock, killing Marine First Lieutenant Robert Paz. The U.S. invaded four days later.
President Bush did not seek congressional authorization for the invasion. Given the Noriega regime’s attack on U.S. forces and the American treaty rights to protect the Canal, doing so was unnecessary. Bush did notify a small group of congressional leaders in the hours before the invasion. He also provided statutory notice immediately after combat began, outlining the deployment and purposes of the operation.
In Venezuela, we don’t have similar treaty rights, war has not been declared against us, and there have been no attacks on American troops. In addition, as I’ve detailed, Trump did not provide notice until weeks after the first attack, and the notice was not only sparse on details but contradictory. When the U.S. attacks began on September 2, the administration signaled it was targeting cartels it linked to Maduro’s regime; when it finally provided notice, however, it said the targets of U.S. attacks were “nonstate actors” and denied that hostilities involved any country.
Implicitly then, the president claims power to strike any boat in any place, regardless of country, that his administration suspects of shipping illegal drugs. And to repeat: Hegseth’s above excerpted post did not even claim the alleged “narco-terrorists” were shipping drugs to the United States. According to the secretary, lethal force is justified if were suspected of “smuggling drugs in our hemisphere.”
Putting aside stark situational differences between Panama 1989 and Venezuela today, there remains a commonality about invasions: They are risky affairs.
Maduro has placed his regime on heightened alert, activating military and militia forces. His forces are no match for ours, and much of the public wants Maduro ousted; but the regime, stretching back to Hug Chávez, has been in power for over a quarter of century because the security apparatus has remained loyal. These supporters could face harsh consequences if Maduro is overthrown; it must be expected that they would fight, and they’d be defending their own territory. The U.S. invasion of Panama lasted over a month, even though the regime’s forces collapsed after a few days. On our side, 23 U.S. troops were killed and 325 wounded. Estimates on the Panamanian side vary widely – the U.S. Defense department estimated that 516 were killed (314 soldiers and 202 civilians).
Since we have neither been attacked nor threatened with an attack, the president should seek congressional authorization for combat operations in South America — both those that are ongoing and those he is contemplating. Yet, he insists he can and will act unilaterally.