The issue is not where the alleged drug boats are located but whether we’re in a state of armed conflict.
On Tuesday, Defense Secretary Pete Hegseth announced that the U.S. armed forces massed in the Caribbean had launched missile strikes against four more boats off the coasts of South and Central America, killing 14 people. That raises the death toll to 57 since the first strike, on September 2.
To repeat what I’ve contended (see, e.g., here and here), these are lawless killings. The United States has not been threatened with a military attack, Congress has not authorized the use of force, and drug trafficking — even if we assume that all the vessels were transporting illegal narcotics, which the administration has not established — is a crime punishable by courtroom prosecution, not a predicate for the use of lethal force.
I’ve been asked a few times what to make of the administration’s stress on the fact that these military attacks have taken place on the high seas — i.e., in international waters. This is apparently meant to analogize them to the use of force in ungoverned spaces, similar to attacks on al-Qaeda forces in, say, Peshawar (the badlands on the border between Afghanistan and Pakistan) after 9/11. The analogy is fatuous, of course, because al-Qaeda had attacked the United States and killed nearly 3,000 Americans, prompting a congressional authorization for the use of military force that made al-Qaeda jihadists enemy combatants under the laws of war. The operators of drug vessels in waters off South and Central America have done no such thing and therefore have no analogous status.
The administration is being asked the uncomfortable question of why, if the president may legitimately order drug traffickers killed in the Caribbean Sea, he might not also be authorized to have them shot (or even bombed) on the streets of, say, Brooklyn or Chicago. Groping for a rationale, the administration’s facile response is: the high seas. The idea is that in our territory, the courts are open and functioning, so drug trafficking can be handled as it is always handled in domestic peacetime conditions, but on the high seas — international waters over which no particular country is sovereign — the drug traffickers are operating in ungoverned spaces, so domestic peacetime rules don’t apply.
It’s a specious distinction. What makes the use of lethal force permissible under the laws is the fact that a state of armed conflict exists between the United States and the country or faction of which the target is an enemy combatant. The happenstance that the enemy combatant may be located on the high seas or some other ostensibly ungoverned space (e.g., Peshawar in 2002), rather than in our own territory or the territory governed by a country with which we are at peace, affects the range of options we may resort to in addressing the enemy combatant. But what makes him an enemy combatant is the state of armed conflict, not his presence in a particular place.
Where an actual enemy combatant is found has political implications that may be more important than the legal ones.
In the World War II–era Ex Parte Quirin case, German saboteurs (including an American citizen) were apprehended on U.S. soil. To make an example of them, FDR subjected them to military commission and quick execution. The Supreme Court endorsed this outcome, even though the civilian courts were open and functioning. By the post-9/11 period, however, sensibilities had changed: In 2002, Jose Padilla, an American citizen and al-Qaeda operative, was arrested in Chicago; he was initially detained as an enemy combatant but ultimately prosecuted and convicted in civilian federal court.
These are fact-intensive cases, driven by conditions that vary from war to war. Perhaps the outcome would be different if, say, we were forcibly invaded, we felt threatened, and the continued operation of civilian courts seemed no sure thing. Still, barring such exigencies, the assumption today is that if (1) we were in an armed conflict in which the battlefield was mainly overseas, and (2) an enemy combatant were apprehended in the United States when the courts were open and functioning, that combatant would likely be prosecuted in civilian federal court. There would be a legal argument in favor of the Quirin treatment, or at least in favor of detaining the person as an enemy combatant until the hostilities wound down and then transferring him to civilian court (as was done with Padilla).
Similarly, just as we wouldn’t use lethal force upon encountering an enemy combatant on our own territory, we generally wouldn’t use it on the territory of a country with which we were at peace, and certainly not on an allied country’s territory. We would instead work with the relevant country’s authorities to apprehend the enemy combatant, probably for extradition and civilian prosecution in the United States. Under the laws of war, we could use lethal force against an enemy combatant, but, politically, we would opt not do that — to maintain public and international support of our war effort.
These can be knotty questions. But notice, once again: The questions are only triggered when there is a state of armed conflict between the United States and an enemy. That’s what allows the use of lethal force under the laws of war.
If there is no armed conflict — if, for example, the foreign power at issue has not militarily attacked or threatened the United States, and if Congress hasn’t declared war or authorized military force — then the laws of war do not apply and military force may not legitimately be used.
It’s not a matter of whether the person at issue happens to be in Manhattan, London, Peshawar, or on the high seas. The location is irrelevant to the question of whether the laws of war permit lethal force. The question is whether there is a state of armed conflict. If there is not, then lethal force may not be used.
On that score, note that the Constitution vests Congress, not the president, with the power to define and punish crimes committed on the high seas (see Article I, Section 8). As I’ve explained a number of times, Congress has made the importation of narcotics a serious federal crime (see Section 952 of the drug laws). That is, Congress has given the executive branch jurisdiction to interdict suspected drug trafficking vessels on the high seas, apprehend the operators, seize their cargo, and bring the operators into the civilian justice system for prosecution, trial, and sentences of incarceration (often, lengthy ones).
Consequently, it cannot be said that the high seas are ungoverned territory akin to Peshawar after 9/11. Congress has ensured that our law enforcement agencies can police the high seas; as a result, interdictions, apprehensions, seizures, and prosecutions are a commonplace.
The fact that the vessels our forces are attacking are encountered on the high seas does not give the president any more authority to employ lethal force than if drug traffickers were found selling drugs on an American street. What makes the use of lethal force legitimate is a true state of armed conflict, resulting from an enemy’s forcible attack or threat of forcible attack against the United States or our vital interests.
There has been no such attack or threat of attack. Trafficking in narcotics is a crime. The operatives on these drug vessels (assuming the president is right that they are drug vessels) are not enemy combatants. Hence, the fact that the vessels are transiting the high seas provides no basis to use military force against them.