Drug trafficking is not an act of war, and the administration has not proved that the operators of the boats were transporting narcotics.
While the Iran War continues — despite the Trump administration’s claims that it is not a war and has terminated even as the antagonists blockade and fire at each other — the Defense Department is trying to distract attention from the stalemate: Our forces have picked up the pace of lethal strikes in the Caribbean and Eastern Pacific against boats the administration says it suspects of ferrying illegal narcotics (presumably cocaine).
There were three strikes in the last few days, according to the New York Times, bringing the total number of lethal attacks to 57, with at least 192 people killed. These strikes have not been authorized by Congress (there is no declaration of war or authorization to use military force), the United States was not threatened militarily, and there is no armed conflict.
Drug trafficking is a crime, not an act of war. The administration has not proved that the operators of the boats were transporting narcotics. I assume a high percentage of them have been (maybe you think U.S. intelligence has been right every time, but I’m dubious); even granting that, though, it is not clear that the boats were in the process of shipping drugs to the United States. It’s not even a federal crime (much less an act of war against our country) if a foreign drug transporter ships narcotics to a foreign country. Plus, the foreign countries affected (e.g., in Europe) did not ask for and do not support the lethal U.S. strikes. The administration is on its own.
The latest strike underscores the cavalier incoherence of the operation. As this is written, it has been reported that there is one survivor. The Defense Department says it has directed the U.S. Coast Guard to conduct search and rescue efforts; the administration, however, takes pains to say the Mexican navy is in charge of the search.
This fits the pattern. The Trump administration does not want to take custody of any survivors.
There have been about 16 cases of people who survived the strikes on their vessels. Most were lost at sea — i.e., they are presumed dead even though they “survived” the attack. There was also the infamous “double tap” incident, in which U.S. forces launched a second strike that killed a survivor. (I won’t rehash that incident, which we covered extensively at NR.)
Most telling for present purposes are the two survivors who were rescued by the U.S. Navy. They were briefly held but then repatriated to their own countries — Ecuador and Colombia, each of which released the alleged “narco-terrorist” in its custody with no charges. Mexico and Ecuador have also coordinated some search and rescue operations, but it’s not clear to me that they recovered any survivors.
The Trump administration is pressing other countries to deal with survivors because it knows it has no authority to detain them outside the criminal justice system as enemy combatants. Again, Congress has not authorized combat operations. Ergo, any survivor whom the administration tried to detain as an enemy combatant would file a habeas corpus petition in federal court, forcing the administration to explain its legal rationale for military detention. The Trump Justice Department would not be able to do that.
On the other hand, if the administration recovered survivors and transferred them to our court system, that would open a different can of worms: (a) it would illustrate that drug trafficking is a crime to be prosecuted, not an act of war, and therefore that the administration should not be using lethal force; and (b) the Justice Department would have to prove beyond a reasonable doubt that the survivors were actually committing drug offenses cognizable under federal law. It is much harder to do that than to claim “intelligence” showed they were drug traffickers, and if survivors were acquitted (or the cases against them was dismissed for lack of evidence) that, too, would highlight the lawlessness of the administration’s use of lethal force.
The administration is convinced that the boat strikes are popular. As is its custom, it has demagogued the issue: If you are opposed to the use of lethal military force without congressional authorization, due process of law, or at least some public demonstration of evidence that the targets are guilty of drug trafficking crimes against the United States, you are smeared as pro-“narco-terrorist” and anti-American. (Highly recommended: Charlie’s “I Love Drug Traffickers.”)
Such rationalizations have traction among Trump’s base. The country, broadly speaking, is more ambivalent, to say the least. To the extent administration officials see this as another instance of the president getting on the right side of an 80-20 issue (such as allowing boys and men to participate in girls’ and women’s sports), they are delusional.
There was polling, especially early on, showing a majority of the country approved the abstract proposition of using military force against drug traffickers who are trying to import narcotics into America. Opposition has mounted over time, as it has become more generally known that (a) the administration has not disclosed evidence establishing that the boats were transporting narcotics and (b) the strikes occur without any judicial process.
In connection with the strikes of recent days, the administration has repeated its stock claims that the operators of the boats were acting on behalf of “designated terrorist organizations” and “engaged in narco-trafficking operations.” Again, it has offered no proof that this is the case. Even if it were, however, to repeat what I’ve previously explained, (a) the formal designation of an entity as a foreign terrorist organization under federal law is not an authorization to use military force against that organization; (b) drug trafficking is not terrorist activity under federal law; and (c) narcotics trafficking is punished severely under federal law, if offenses are proven in court, although no one has been sentenced to death for drug crimes absent proof that the defendant committed murder in connection with drug trafficking — and only one such defendant has ever been executed.