On Sept. 2nd, the Trump administration announced what it described as a “lethal strike” against an alleged drug smuggling vessel in the Caribbean. In a post on social media accompanied with a video of the strike, President Donald Trump stated that the attack was “against positively identified Tren de Aragua Narcoterrorists.” Trump also noted that Tren de Aragua had previously been designated as a foreign terrorist organization (FTO). The social media post also asserted that the strike had occurred in international waters and killed “11 terrorists.”
Although the facts are still emerging, the Trump administration’s extraordinary lethal attack on this purported smuggling vessel – and its vow that the strike was a start of a campaign – raise a number of significant potential legal issues. And even apart from these legal concerns, the strike constitutes a deeply troubling gratuitous use of the military that resulted in the unnecessary killing of 11 individuals.
Background
President Trump had reportedly flirted with the idea of using military force against drug trafficking organizations during his first term. Early in his second term, his administration began to cast drug trafficking organizations as terrorists and hinted at possibly using targeted killing tools developed over the last few decades in the counter-terrorism context. In February, the State Department for the first time designated eight drug trafficking organizations, including Tren de Aragua, as FTO). To be clear, this step does not by itself provide authority for the use of force. In the past, however, it has paved the way to military action, including the strike on Iranian General Qassem Soleimani.
Certainly, the rhetoric from key figures close to Trump suggests that the administration views FTO designation as a stepping stone to using force. Soon after the designations were publicly revealed, Elon Musk commented on social media that listing “means they’re eligible for drone strikes.” The Trump administration’s “border czar” Tom Homan said in November that the president was “committed to calling [the cartels] terrorist organizations and using the full might of the United States special operations to take them out.” Secretary of Defense Hegseth stressed on Fox News that “all options will be on the table if we’re dealing with what are designated to be foreign terrorist organizations who are specifically targeting Americans on our border.”
The Trump administration would cite the FTO designation of Tren de Aragua and lean further into the use of military tools against the group when in March it invoked the wartime authority of the Alien Enemies Act—and then relied on that authority to rendition hundreds of Venezuelans to El Salvador.
The September military strike occurs in the context of a broader military deployment to the Caribbean—a deployment reportedly pushed by Secretary of State Rubio to put pressure on Venezuelan leader Nicolás Maduro. The deployment includes three destroyers and an amphibious assault group with 4,500 sailors, including 2,500 marines, on board. U.S. forces in the region were further bolstered by a guided missile cruiser and at least one submarine, the nuclear-powered USS Newport News.
Domestic Legal Authority for the Use of Force
A U.S. president may direct the use of military force pursuant to either (1) a congressional authorization for the use of force/declaration of war or (2) inherent authority under Article II of the Constitution, typically as commander in chief of the U.S. military. The scope of the president’s authority to direct the use of force under Article II in the absence of congressional authorization is contested. Although there is broad agreement that the president may use force to repel “sudden attack,” the U.S. executive branch has taken a much more expansive view of the president’s unilateral war powers.
Here the Trump administration will almost certainly rely solely on Article II of the Constitution as the source of authority for the attack on this vessel. Despite labelling the targets “narcoterrorists,” there is no plausible argument under which the principle legal authority for the U.S. so-called “war on terror”—the 2001 Authorization for the Use of Military Force—authorizes military action against the Venezuelan criminal entity Tren de Aragua.
Under the executive branch’s two-prong test for when a president may use force without congressional authorization, the contemplated operation must advance an important “national interest” and must not amount to “war in the constitutional sense,” which the Department of Justice’s Office of Legal Counsel (OLC) has recognized as an outer limit on the president’s unilateral warmaking authority. That said, OLC precedent marks out remarkably wide latitude, with the first prong in particular having been critiqued as being unconstraining, and it is not clear whether it would have limited the president in this instance even assuming OLC advice was sought before the strike took place.
Further, though Trump and others in his administration have emphasized the prior designation of Tren de Aragua as an FTO, such designation does not by itself convey authority to use force. Nonetheless, such FTO designations are widely and mistakenly perceived as authorizing such action within the executive branch. Thus, designation of Tren de Aragua and a number of other Latin American criminal entities as FTOs in February foreshadowed this week’s attack in the Caribbean, despite providing no actual legal authority for it.
War Powers Resolution
When the U.S. president directs certain military actions in the absence of prior congressional authorization, those actions must be reported to Congress under the 1973 War Powers Resolution. Further, when U.S. armed forces are introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” the president must not only report the action to Congress within 48-hours but terminate such military action within 60-days unless Congress votes to authorize it.
The War Powers Resolution does not define what it means for U.S. armed forces to be introduced into hostilities. Nonetheless, the House Foreign Affairs Committee’s report on the Resolution explains:
The word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict. “Imminent hostilities” denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict.
Unsurprisingly, the executive branch has espoused different, narrower interpretations of these terms that are less likely to constrain the president’s ability to use military force without congressional authorization. In the most oft-repeated formulation, the State Department’s Legal Adviser informed Congress in a 1975 letter that its working definition of “hostilities” meant “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces.” “Imminent hostilities” means “a situation in which there is a serious risk from hostile fire to the safety of United States forces.”
The executive branch has at times taken the position that supposedly defensive action by U.S. armed forces is exempt from the reporting and withdrawal requirements of the War Powers Resolution because U.S. armed forces were not “introduced” into hostilities, but instead hostilities were introduced to U.S. armed forces. The Biden administration adopted this legal theory to wage a yearslong military campaign against the Houthis without congressional authorization despite the restrictions of the War Powers Resolution.
The White House has in the past sometimes treated U.S. attacks on foreign vessels as introductions into hostilities triggering the War Powers Resolution. This was the case for the 1986 Gulf of Sidra incident involving air and naval fighting with Libya and a 1988 episode during the Tanker War when U.S. helicopters in the Persian Gulf responded to the distress call of a tanker under attack by (presumably Iranian) small boats, were fired on by the boats and returned fire in self-defense.
In my view, the U.S. attack on this supposed smuggling vessel constituted the introduction of U.S. armed forces into hostilities, triggering both the reporting requirements of the War Powers Resolution as well as its 60-day clock for withdrawing U.S. forces. The attack not only resembles previously reported incidents during the Reagan administration, but U.S. armed forces were deliberately introduced into the situation with the U.S. president himself reportedly giving the order to “blow up” the supposed smuggling vessel.
UN Charter
Any use of force by the United States must also comply with the UN Charter—both as a matter of international and domestic law. Article 2(4) of the UN Charter provides that: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”
The UN Charter safeguards states from the use of force. It is not currently clear what states (if any) were impacted by the U.S. attack on this vessel and thus whether Article 2(4) of the Charter is implicated by this strike. According to the Trump administration, the strike occurred in international waters. There is no indication that the vessel was flagged under any country (which would make an attack on the vessel an attack on the flag state in the view of the United States) Although some countries (such as the United States) have in the past treated attacks on their nationals abroad as attacks on the state itself, as of publication no country has claimed the 11 people reportedly killed in this attack and the Venezuelan government claimed the video of the incident was generated by artificial intelligence.
Use of Lethal Force
Working in collaboration with the U.S. Coast Guard, the U.S. Navy has for many years conducted maritime interdictions of suspected drug smugglers under a law enforcement paradigm—including during the current Trump administration. In such operations, U.S. Coast Guard law enforcement personnel board the suspect vessel and take the crew into custody.
The attack on the smuggling vessel in the Caribbean was so extraordinary because there was no reported attempt to stop the boat or detain its crew. Instead, the use of lethal force was used in the first resort. According to Secretary of State Rubio, President Trump was given the option of conducting a maritime interdiction but instead elected to blow up the vessel to send a message. Such use of lethal force raises a number of distinct legal issues.
Assassination Ban
Executive Order 12333 prohibits assassinations, providing that “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Under executive branch legal doctrine, “assassination” is understood to include the targeted killing of individuals. (The Uniform Code of Military Justice also of course criminalizes murder.)
Public reporting on the past interpretation of the assassination ban indicates that the U.S. executive branch has recognized two potentially relevant exceptions to the prohibition in recent decades: (1) actions taken in self-defense; and (2) use of lethal force consistent with the law of war.
With respect to self-defense, the Trump administration has indicated that it is countering the flow of drugs to the United States. But drug trafficking by itself does not constitute an “armed attack,” nor a threat of an imminent armed attack, for the purposes in international law. Nor does drug trafficking represent the predicate for self-defense commonly recognized as required for the invocation of self-defense under criminal law in the United States.
The Law of War
Although not explicit, the administration’s framing of its attack on the alleged Tren de Aragua smuggling vessel suggests that it is targeting the group as if it were a terrorist organization with which the United States is engaged in an armed conflict. Such a law of war framework in turn raises a number of subsidiary questions.
Even assuming that Tren de Aragua constitutes an organized armed group (which there is reason to doubt) with which the United States is involved in a non-international armed conflict, it is far from clear that the attack on the vessel and the killing of those aboard was lawful under the law of war. The administration has not sought to explain how either the boat or its passengers were lawful military objectives.
In armed conflict, combatants/fighters (not hors de combat) may be targeted on a status basis. Further, civilians directly participating in hostilities may also be made the object of attack. Smuggling drugs by itself does not render a civilian a combatant/fighter subject to status-based targeting. Nor does it constitute direct participation in hostilities.
Nor has the administration argued that the cargo of the vessels was somehow a lawful military objective and the passengers somehow lawful collateral damage consistent with the principle of proportionality.
Assuming arguendo that the United States is operating under the law of war in targeting this supposed Tren de Aragua vessel, attacks directed against civilians or civilian objects violate the law of war.
Moreover, certain violations of the law of war constitute war crimes under both international and U.S. domestic law. Specifically, the U.S. War Crimes Act criminalizes murder, defined as the
“act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.”
Many other states not only criminalize this offense but have universal jurisdiction over the crime, regardless of who perpetrates it.
We still lack details about the individuals aboard the targeted vessel as well as the legal rationale for the attack. But if U.S. forces are targeting individuals who are civilians—not qualifying as combatants/fighters or directly participating in hostilities—this raises the specter of accountability under the War Crimes Act.
The Right to Life in Human Rights Law
Such attacks may also violate the right to life under international human rights law. And while the U.S. government has not consistently acknowledged the extraterritorial application of the relevant legal obligation as a matter of treaty law (see this 2014 Just Security symposium for long-running debate on that issue), DoD’s 2024 Operational Law Handbook (pages 98-99) adopts the view that murder is prohibited by a peremptory rule of customary international law applicable even extraterritorially.
An Extraordinary and Unsettling Action
The Trump administration’s military attack on this alleged smuggling vessel is not only extraordinary and unsettling in its own right, but also because of the context in which it occurs and for what it may portend for future action.
The use of lethal force in this attack appears gratuitous and the administration has not explained why law enforcement tools were inadequate to address the situation. Of a piece with the deployment of troops to U.S. cities, the strike is an unnecessary and performative use of the U.S. military—a use that is legally fraught at best. (Indeed, Trump threatened Chicago with a troop deployment in the same Oval Office appearance in which he announced the strike.) And the use of lethal force against these supposed terrorists is ominous both because the Trump administration has vowed further such strikes in Latin America and because this administration has deployed the “terrorist” label more broadly domestically, including against migrants and political opponents.
Congress—which has largely been missing in action this year—needs to reassert its own prerogatives over war powers and the use of these military tools as the White House seeks to further abuse these instruments both abroad and at home.
