Now that the President has submitted the required War Powers Resolution report to Congress, we can begin to take stock of just how extraordinary and significant last Tuesday’s lethal strike in the Caribbean Sea was. As I will try to explain below, it’s likely that the President lacked any affirmative domestic authority to order the strike, and the strike itself appears to have violated several legal prohibitions. Those legal transgressions, however, aren’t necessarily the most significant thing about the strike. As I’ll discuss at the end of this piece, regardless of which laws might have been broken, what’s more alarming, and of greater long-term concern, is that U.S. military personnel crossed a fundamental line the Department of Defense has been resolutely committed to upholding for many decades—namely, that (except in rare and extreme circumstances not present here) the military must not use lethal force against civilians, even if they are alleged, or even known, to be violating the law.
Although it’s easy to imagine how President Donald Trump and his aides and appointees might have decided to approve and order the strike, it’s difficult to understand how it came to pass that the non-appointed military officials and enlistees involved in the operation assented to such an indefensible breach of the fundamental norm against targeting civilians. At the end of this piece, I speculate on three possible ways in which supervisory officials might have persuaded (or cajoled) military personnel into violating that norm. Each of those three possibilities is deeply troubling, including the one that is the most likely explanation—namely, that the military accepted an implausible presidential determination that the United States is engaged in an armed conflict with Tren de Aragua, and that therefore the U.S. military can summarily kill alleged members of that criminal gang based solely upon their membership in that organization.
What We Know—and Don’t Know—About the September 2 Strike
In the analysis that follows, I’ll assume for the sake of argument the following facts, almost all of which either appear in the War Powers report itself or have been represented or affirmed by the President and administration officials. A few others have appeared in highly reliable news reporting that the administration hasn’t disclaimed or rebutted. It might well be the case, of course, that the facts are otherwise—and perhaps even more concerning than what I’ll set out here. For present purposes, however, I’ll presume that the following things are true:
1. On Tuesday, September 2, U.S. military forces deliberately targeted and (in the words of the War Powers report) “struck a vessel” in the Caribbean Sea, killing all (reportedly, eleven) persons on board. According to news reports, DoD used a drone to destroy the vessel, which a video of the strike that Trump posted to Truth Social depicts as a speedboat of sorts.
2. According to the President, the vessel was “assessed” (presumably by someone in the U.S. government) to be “affiliated with” a “designated terrorist organization.” In his Truth Social post, Trump said that the organization was Tren de Aragua (TdA), though it’s conspicuous that for some reason the White House did not say so in its WPR report. The President has not specified the way in which this vessel was “affiliated with” TdA or any other designated terrorist organization.
3. Also according to the War Powers report, someone “assessed” that the vessel was “engaged in illicit drug trafficking activities.” The President did not describe what those “illicit” activities were—or even allege in the report that there were narcotics on the boat. In his Truth Social post, Trump asserted that the vehicle was “heading to the United States,” but the War Powers report does not say that (and if it were true, the President would have had every incentive to say so in the report). Neither the President nor any other administration official has represented that the persons on the vessel planned to distribute drugs from the vessel into the United States or, more importantly, that any of them were planning to attack the United States (or any other nation, for that matter).
4. According to Secretary of State Marco Rubio, the military could have interdicted the vessel (see Mark Nevitt on how the Coast Guard regularly interdicts such drug trafficking vessels, often with the Navy’s assistance), but chose instead to destroy the vessel and to kill all those on board only because the President issued a directive to do so in order to “send a message.”
The Three Major Legal Prohibitions the Strike Probably Did Not Violate
Before I identify the many legal problems with the Caribbean strike, I think it’s important to explain why the Caribbean strike probably did not violate three legal constraints that are most frequently the primary subjects of debate when it comes to “unilateral” (i.e., not statutorily authorized) presidential uses of lethal force: (i) the Constitution’s assignment to Congress of the exclusive power to “declare war”; (ii) the statutory limits imposed by the War Powers Resolution; and (iii) the prohibition against the use of force in Article 2(4) of the United Nations Charter.
- The strike doesn’t appear to raise the serious constitutional issue of whether the President’s unilateral action usurped Congress’ authority to “declare war.” Based on what little we currently know, it appears that this operation wasn’t of the “nature, scope or duration” necessary to constitute “war in the constitutional sense,” as the Office of Legal Counsel has articulated and applied that test in opinions across many administrations (see, e.g., here, here and here). Therefore, the most familiar constitutional “war powers” question probably isn’t implicated. (That said, it’s been reported that Trump has issued a directive more broadly authorizing lethal strikes against drug cartels. Depending upon what that non-public directive authorizes and, especially, how the military implements it over the coming weeks or months, it is possible that a sustained campaign of force against Tren de Aragua, especially if it involves military force in Venezuela, would rise to the level of “war in the constitutional sense” and thus require statutory authorization. This possibility is something to bear in mind going forward.)
- The strike is also unlikely to implicate any questions about the 60-day “clock” in Section 5(b) of the War Powers Resolution, because even if the strike involved the “introduction” of U.S. troops into hostilities, those troops probably won’t be engaged in such hostilities (or be engaged in a situation “where imminent involvement in hostilities is clearly indicated by the circumstances”) for more than 60 days. (That said, the President’s War Powers report states that “[i]t is not possible at this time to know the full scope and duration of military operations that will be necessary” and that “United States forces remain postured to carry out further military operations,” so it is at least possible that the 60-day clock might be implicated if this strike was only the first of many to follow.)
- It’s also probably the case that the strike did not put the U.S. in breach of Article 2(4) of the United Nations Charter, which prohibits signatory States (including the United States) from any “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.” (A breach of the U.N. Charter is a violation of U.S. domestic law as well international law because that treaty is the “supreme Law of the Land” (U.S. Const. art. VI).) For Article 2(4) to be implicated, last Tuesday’s strike would need to have been either in the territory of a nonconsenting State or otherwise taken “against” another State (e.g., Venezuela). The DoD strike was in international waters, rather than in the territory of a nonconsenting State, and reportedly the boat in question was a private vessel. Even so, the strike could have been a “use of force” for purposes of Article 2(4) if the vessel was registered in a State and was flying that State’s flag. See Chapter III, section 2 of the U.S.’s 1997 Counter-Memorial and Counter-Claim in the Oil Platforms case. There’s nothing in the public record, however, suggesting that the speedboat the U.S. military targeted last Tuesday was flying another State’s flag, nor does the President’s War Powers report indicate that the strike was in any other respect directed against Venezuela or any other State. (The United States has not, for instance, filed an “Article 51” letter with the United Nations General Security Council—not yet, anyway—purporting to justify a “use of force” with a claim of “self-defence.”) Therefore it’s likely the strike wasn’t the sort of use of force that Article 2(4) presumptively prohibits.[1]
The Several Ways in Which the Caribbean Strike Likely Was Unlawful
Even if the strike did not violate any of those three important legal rules, that doesn’t mean that it was lawful. Not even close. Indeed, an action such as this one appears to have been so manifestly unlawful that in any other administration, including Trump’s first, if anyone had even dared to propose it, virtually any and every attorney who got wind of it, across the government—and many non-lawyer officials, too—would have immediately dismissed it as obviously out-of-bounds. It wouldn’t have been a close call, and therefore it wouldn’t have required any detailed memoranda or extended debates.
Here’s a quick rundown on the array of legal problems that last Tuesday’s strike raises:
1. The Absence of Domestic Law Authority
Before turning to the legal prohibitions the strike appears to have violated, it’s important first to flag that it’s questionable whether the President had any affirmative legal authority to order the strike.
In his War Powers report, the President understandably did not rely upon any statutory authority—such as an existing Authorization to Use Military Force, a provision of Title 10, or anything in an appropriations law—because there is none. Nor does the State Department’s designation of Tren de Aragua as a “Foreign Terrorist Organization” and as “Specially Designated Global Terrorists” provide any authority for the President’s order to use lethal force. Even assuming that the State Department had a sufficient factual predicate for those designations, and even assuming further that the persons onboard the vessel were members of Tren de Aragua (which the War Powers report notably does not assert), the State Department designation merely triggers the government’s ability to implement asset controls and other economic sanctions under the International Emergency Economic Powers Act (IEEPA), the Immigration and Nationality Act (INA) and other statutes—it has nothing to do with authorizing DoD to engage in targeted killings … which is why the U.S. military doesn’t go around killing members of all designated Foreign Terrorist Organizations.
Trump therefore had no choice but to rely exclusively upon a claim of his “constitutional authority as Commander in Chief and Chief Executive to conduct United States foreign relations.” Yet that claim, too, is difficult to credit.
It’s true that the President has Article II authority to direct the military to use lethal force in some circumstances where it would not be reasonable to anticipate the use would result in “war in a constitutional sense,” such as to repel an imminent attack on the United States or acts of violence against U.S. troops or U.S. nationals abroad. And recent presidents and the Department of Justice have also asserted more contestable claims of inherent Article II authority to direct the use of military force in other situations that don’t involve threats to the nation or to U.S. persons—such as the claim in the first Trump administration that the president had the constitutional authority to order a strike on a Syrian airfield, in breach of the U.N. Charter, in order to deter the Assad regime from using chemical weapons again the Syrian population. (Notably, even in that case, the Trump administration emphasized that the military had undertaken “extraordinary measures to avoid civilian casualties,” to “comply with the Law of Armed Conflict,” and to take “[e]very precaution … to execute th[e] strike with minimal risk to personnel at the airfield”—it did not target civilians, as such.)
I am dubious about some of these recent assertions of Article II authority. (For example, I sharply questioned the Trump administration’s assertion of constitutional authority to strike Syria in 2017. I also have doubts about President Clinton’s assertion of authority to engage in the use of force for humanitarian purposes in Kosovo in 1999 (which was not defended on the basis of any OLC opinion asserting Article II authority).) Even if those assertions of authority were defensible, however, they didn’t involve the deliberate targeting of civilians, and I’m not aware of any basis for the extraordinary notion that either the Commander-in-Chief Clause or any implied constitutional “foreign relations” authority affords the President the power to order the military to kill any and all persons around the world who might (in the President’s view) be planning to commit crimes in the United States or otherwise be up to no good, particularly not in situations, like this one, where the military could prevent the suspected criminal activity with actions far short of lethal force. That’s why there’s virtually no historical precedent of any president ordering lethal force in a situation such as this.
The Article II assertion here—without which there would clearly would have been no affirmative authority for the Caribbean strike—thus is, at a minimum, unprecedented, and its implications are alarming. But even if there were a plausible Article II theory with respect to the President’s affirmative authority to order the strike, that would not matter if, as discussed below, the killing itself (or conspiring to do it) violated the U.S. criminal code (or the Uniform Code of Miliary Justice). In that case, any conceivable Article II authority would be constrained by those statutes.
2. The Assassination Ban
The Caribbean strike appears to have violated Section 2.11 of Executive Order 12333, which provides: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” As I’ve explained elsewhere (in connection with the targeting of Osama bin Laden—see Point 10 of the linked post), the “assassination ban” does not prohibit the targeting of persons in an armed conflict (if done in compliance with the laws of armed conflict), or as a legitimate act of self-defense to stop or prevent an armed attack—but this was neither, and therefore those who were involved in the strike appear to have violated the Executive Order, even if the President directed them to do so. (Yes, a president could revoke the assassination ban—but even Trump hasn’t done that … yet.)
3. Murder under Title 18 of the U.S. Code
Section 1111(b) of Title 18 of the U.S. Code makes it a felony to commit murder—defined as “the unlawful killing of a human being with malice aforethought”—within the “special maritime and territorial jurisdiction of the United States,” which is defined to include the high seas (see 18 U.S.C. § 7(1)). See also 18 U.S.C. § 956(a)(1) (making it a felony to conspire within the United States “to commit at any place outside the United States an act that would constitute the offense of murder … if committed in the special maritime and territorial jurisdiction of the United States” if “any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy”). Based upon the information that’s been made public thus far, there doesn’t appear to be any explanation for why the strike here, and the planning for it in the United States, did not violate these laws.
The Office of Legal Counsel has concluded (see pp. 12-30 here) that this and related federal criminal prohibitions do not apply if the targeted person is a member of enemy armed forces in a congressionally authorized armed conflict and the targeting conforms to the laws of armed conflict and other international law constraints. But that isn’t the case here: There’s no armed conflict (let alone one Congress has authorized) and the persons on the boat weren’t members of an armed force that has attacked the United States. The reasoning underlying the OLC opinion might also support the conclusion that the murder statute would not apply to a military killing on the high seas that was necessary to prevent an imminent lethal attack on the United States or on U.S. troops or nationals, even outside the context of an armed conflict. But even if that were so, there’s no indication (nor has the administration suggested otherwise) that the persons on the boat were about to do anything of the sort—and, in any event, as Mark Nevitt has explained, presumably the Coast Guard, with the Navy’s help, could have interdicted such a threat (had it existed) without destroying the boat and killing all those on board.
Thus, absent further facts that haven’t yet been disclosed, the strike would appear to have implicated the federal felony murder statutes.
My point here is simply to emphasize that Congress and the President have enacted laws prohibiting this conduct—wholly apart from the fact that it also prescribed criminal sanctions for any violations. I am certainly not suggesting that any operational Navy officers or other members of the armed forces should be prosecuted for violating these criminal statutes. Even if such military subordinates had grave doubts about the legality of the strike (a likelihood I discuss below), it’s fair to assume they were told that very senior officials, perhaps including the President, the Attorney General and/or the Secretary of Defense—and maybe including DoD attorneys, as well (such as the General Counsel)—had determined that the strike would be lawful. Particularly in these circumstances, criminal investigation and prosecution under the murder statutes should be almost unthinkable. The unlikelihood of prosecution, however, doesn’t change the fact that the conduct violated a duly enacted statutory prohibition.
4. The Murder Provision of the Uniform Code of Military Justice
Similarly, the DoD personnel who undertook (or authorized) the strike might have violated Article 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918, which provides that “[a]ny person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when such person— (1) has a premeditated design to kill; [or] (2) intends to kill … is guilty of murder.”
To reiterate my admonition in the section above about Title 18, I’m not suggesting that those personnel should be court-martialed for such an offense. Absent unusual circumstances, a prosecution shouldn’t be considered against persons who were acting at the President’s direction.
That said, the fact that President Trump apparently has authorized the military to use lethal force to target a boat filled with civilians does not mean that all subordinate officials should reflexively defer to, and comply with, any such orders issued at his direction. To be sure, as the Judge Advocate General Handbook explains, subordinates in the military chain of command must presume, in the ordinary course, that orders of superiors in the lawful chain-of-command are themselves lawful. Even so, in a “rare” case where “an order seems unlawful,” the subordinate should “not carry it out right away, but [should] not ignore it either.” She should, instead, “immediately and respectfully seek clarification of that order”; and if, after receiving a clarification (or after being informed that no clarification is forthcoming), a reasonable person “would recognize the wrongfulness of the act or order, even in light of a soldier’s general duty to obey, then the order is ‘manifestly illegal,’ and soldiers have a duty to disobey it.” The Commander’s Handbook on the Law of Naval Operations includes an admonition that certainly appears to be on point here: It notes that although “[a]n order requiring the performance of a military duty to act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate,” this inference “does not apply to a patently illegal order, such as one that directs the commission of a crime (e.g., an order directing the murder of a civilian [or] a noncombatant …”) (emphasis added).
We do not know whether, in the case of the September 2 strike, any military personnel asked for clarification when they were directed to destroy what appeared to be a private speedboat many miles from U.S. shores—or, if they did ask, what information their commanders might have offered them to explain why it might be lawful to destroy such a vessel and kill all those aboard. Nor do we know whether those commanders were permitted to seek and obtain the legal advice of Judge Advocates or counsel within DoD—and, if so, what the JAG Corps or other attorneys told them in response. It could well be that many of the relevant actors, including those who were most likely to provide reliable, objective legal advice, were deliberately kept out of the loop, thereby preventing commanders and subordinate personnel from being able to confirm whether there was any valid basis for orders that appeared to be of very questionable legality. If so, they were left with a very difficult dilemma. Perhaps their decision to comply with the order was reasonable, in light of all the extraordinary circumstances. Even so, unless they received compelling, relevant information that’s not yet publicly known, it’s difficult to imagine how those military officers or enlisted personnel might have concluded that the order here was not manifestly unlawful.
Again, even if that was where they found themselves, I don’t mean to suggest that they necessarily should have disobeyed an order purportedly made by the Commander in Chief—an obviously extreme course of action—let alone that they should be the ones held accountable for the stark deviation from the procedural and substantive norms. My purpose here is merely to point out that, absent facts that are not now presently known, the targeting of the vessel here certainly appears to have violated Article 118.
5. Customary International Law
The strike almost certainly violated fundamental principles of customary international law, too. What’s less certain is which customary laws governed here—a question that depends upon whether or not the strike occurred within an armed conflict.
It’s fairly clear, I think, that there was no such armed conflict before last Tuesday. Therefore the customary laws of armed conflict (LOAC) did not constrain DoD’s action unless the strike itself, which reportedly killed Venezuelan nationals, served to establish an international armed conflict between the United States and Venezuela even though it occurred on the high seas rather than in Venezuelan territory and against an unflagged vessel (a legal question that isn’t settled, as far as I know).
Assuming arguendo that the strike did, as a legal matter, initiate an international armed conflict between the United States and Venezuela, then it appears to have clearly violated the fundamental LOAC principle of distinction, which prohibits the targeting of civilian objects or of civilians (unless they were at the time directly participating in hostilities against the United States, which was clearly not the case here). Notably, the Commander’s Handbook on the Law of Naval Operations declares unequivocally that “[c]ivilians may not be made the object of attack and feasible precautions must be taken to reduce the risk of harm to them.” (The Handbook further defines a civilian as a person who is not a combatant or a “noncombatant,” with the latter term being defined as “members of the armed forces who are medical personnel and chaplains” or combatants who “become hors de combat (out of combat) by reason of wounds, illness, or capture.” There’s no basis—none in the public record, anyway—for thinking that the persons on the boat in the Caribbean were not civilians, whether or not they were planning any serious criminal activity.)
Alternatively, if the strike did not establish an international armed conflict, it would nevertheless have violated customary international human rights law. Article 6(1) of the International Covenant on Civil and Political Rights, to which the United States is a party, provides that “[n]o one shall be arbitrarily deprived of his life”—a prohibition that generally proscribes extra-judicial killings, at least outside the context of an armed conflict and apart from cases where lethal force is necessary to prevent imminent violence against others. So, for example, it would be unthinkable that the President could direct the military to use lethal force to kill foreign nationals in the United States simply because they were importing or dealing narcotics, or were suspected of committing or planning other crimes, in cases where such persons could be arrested and subjected to criminal process (i.e., where lethal force was not necessary to prevent them from an immediate use of violence against others). Such an extra-judicial killing by the military in the United States would obviously breach the ICCPR, at a minimum (in addition to the UCMJ, perhaps the Assassination Ban, and the Constitution and other laws, as well).
The United States has sometimes asserted that the ICCPR doesn’t apply outside the signatory state’s own jurisdiction—a deeply contested position. Even if that view were correct, however, it wouldn’t matter here, because the United States agrees that all States are bound throughout the world by customary human rights law, which is “considered part of U.S. law” (Operational Law Handbook at 98, citing, inter alia, The Paquete Habana, 175 U.S. 677 (1900))—and the United States further agrees that the prohibition on murder, reflected in Article 6 of the ICCPR, is a “peremptory norm[] so fundamental and universally accepted” that it does “not permit any derogation, even by treaty” and “bind[s] States during all operations inside and outside a State’s territory” (id.).
The Military’s Longstanding Commitment to the Fundamental Principle of Distinction Prohibiting the Targeting of Civilians
Perhaps most alarming and potentially consequential thing about the Caribbean strike, however, is not that it was probably unauthorized by law or that it might have violated one or more of the legal rules described above, but instead that it was a stark—and, best I can tell, unprecedented—deviation from a sacrosanct Department of Defense policy that has governed the U.S. armed forces for many decades. (As I was finishing up this piece, Scott Anderson flagged a similar concern over at Lawfare, characterizing it as a “moral, if not legal” line that the military has now crossed. I agree with Scott, but my principal point here is to emphasize that “moral” line has long been a true cornerstone of formal DoD policy and practice.)
DoD Directive 2311.01 § 1.2(a) confirms the Department of Defense’s longstanding policy that not only must “[m]embers of the DoD Components comply with the law of war during all armed conflicts, however characterized,” but also that “[i]n all other military operations, members of the DoD Components will continue to act consistent with the law of war’s fundamental principles and rules, which include … the principle[] … of distinction.” (The DoD Directive also identifies the prohibitions in Common Article 3 of the 1949 Geneva Conventions and the principles of military necessity, humanity, proportionality, and honor.) The Commander’s Handbook on the Law of Naval Operations provides likewise in § 5.2. Accordingly, members of the armed forces must comply with the principle of distinction regardless of whether the LOAC or other law requires it.
As far as I’m aware, the military inculcates in all its members the injunction that they must never target civilians with lethal force, with the discrete exception—not implicated here—of cases where such persons are participating directly in the conduct of hostilities against the United States or one of its allies (in which case lethal force may be used in order to prevent the person from continuing such hostile activities).[2] The crossing of that sacrosanct line last Tuesday might prove to be an especially fateful event: It could presage a momentous change in DoD practices, and possibly establish a troubling precedent for militaries throughout the world.
Three Possible Scenarios: Why Did Military Personnel Agree to Such a Dubious Order?
In light of all the ways in which the Caribbean strike appears to have been unlawful, I agree with Ryan Goodman (quoted in the New York Times) that it’s “difficult to imagine how any lawyers inside the Pentagon could have arrived at a conclusion that this was legal rather than the very definition of murder under international law rules that the Defense Department has long accepted.” Yet I think it’s even more difficult to imagine how the lawyers and operational personnel who were involved in the Caribbean operation came to disregard the fundamental, deeply inculcated DoD policy prohibiting the targeting of civilians with lethal force. What could their superiors possibly have said to them that might have led them to act as they did?
I can imagine at least three possible scenarios, but none of them offers a satisfactory answer to the puzzling question of how the armed forces here came to act contrary to the legal norms described above and, especially, the deep-seated DoD commitment to compliance with the principle of distinction.
First, high-level officials in the Pentagon, perhaps even the Secretary of Defense, might have instructed their subordinates that the legality of the strike was simply none of their business because such legal questions had been definitively resolved higher up the chain—perhaps even by the President or the Attorney General—and that it’s not the role of military lawyers and commanders, let alone operational personnel, to ask for an explanation or to assess the law themselves. (Trump has certainly hinted elsewhere at the latter view of interpretive exclusivity. See Executive Order 14215, § 7 (Feb. 18, 2025) (“The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties.”).)
As I explained above, however, members of the armed forces are admonished not to comply with a “manifestly illegal” order—such, as for example (according to the Commander’s Handbook on the Law of Naval Operation) “an order directing the murder of a civilian [or] a noncombatant”—and thus where a subordinate receives an order that “seems unlawful,” such as to kill civilians, the subordinate should “immediately and respectfully seek clarification of that order.” If they did ask for “clarification” here, and if the response took the form of “the legal justification is none of your business” or “do it because the President (or AG) said so,” that certainly ought to have been inadequate to overcome an operational actor’s understanding that the order to strike a civilian target was manifestly illegal. It’s certainly very possible—understandable, even—that some of the persons in the chain of command would have followed the order nevertheless, given the terrible choice with which they were confronted. Even so, it’s difficult to imagine that such a summary sort of nonresponse would have been sufficient to cause all of the DoD personnel involved in the Caribbean strike to act in contravention of their understanding that it is impermissible to target a civilian vessel and to kill the civilians on board under circumstances such as these.
Second, I suppose it’s theoretically possible that high-level Pentagon officials told their subordinates that the destruction of the vessel was necessary because it was about to be used in an attack, i.e., that it presented an immediate threat to the safety of others. I think we can confidently assume, however, that this didn’t happen, for at least two reasons: (i) the administration itself hasn’t suggested that the boat was about to be used for an attack (indeed, no one has suggested the boat was going to be used for an attack at all); and (ii) in any event, the Secretary of State has acknowledged that the military could have interdicted the vessel but chose not to do so only because the President wanted “to send a message.”
Third, perhaps high-level Pentagon officials told their subordinates that the persons on the boat were not civilians, but were instead members of an enemy armed force that is engaged in an armed conflict with the United States. If that recharacterization of the individuals on the boat were correct, then DoD could, consistent with the LOAC and all of the other legal norms and policies described above, target those persons on the basis of their status as enemy forces. (Because superiors in the enemy chain of command can command such a person to use force against the other party to the armed conflict, it is permissible under the laws of war for that other party to attempt to weaken or incapacitate the enemy by killing or capturing that individual, even if the person isn’t engaged in hostilities at the moment of attack.)
There might be a hint of such an argument in Trump’s War Powers report, which states that certain (unidentified) drug-trafficking cartels have “have evolved into complex structures with … paramilitary capabilities” and that they “engag[e] in violence and terrorism that threaten the United States.” More telling, perhaps, is Trump’s March 15 Alien Enemies Act Proclamation, which alleges that Tren de Aragua has been engaged in “irregular warfare” in the United States. (As a panel for the United States Court of Appeals for the Fifth Circuit pointedly put the point last week, “[t]here is no description [in Trump’s declaration] of what is meant by irregular warfare.”) To similar effect, in informal remarks last Wednesday, Secretary of State Rubio said that “the point is the President United States is going to wage war on narcoterrorist organizations.” That was likely mere bluster and hyperbole, but it’s also possible that it reflected some sort of legal determination that’s been made within the Executive Branch that the United States and one or more drug cartels are engaged in an armed conflict.
Although this possible explanation is perhaps more conceivable than the first two, it, too, runs into serious difficulties.
For starters, the President’s War Powers report doesn’t assert that there’s an armed conflict, despite its vague reference to unidentified cartels’ “paramilitary capabilities.” I assume that if the administration were in fact relying upon an armed conflict rationale—and had used that rationale to explain to military personnel why they could destroy the boat—it would appear in some form or another in the War Powers report. But it doesn’t. (Indeed, the report doesn’t even refer to Tren de Aragua or any other identified organization or cartel.)
More importantly, it would be implausible to conclude that the United States is engaged in an armed conflict with TdA under the fairly well-established understanding of the conditions for a “noninternational” armed conflict in which the LOAC applies and parties may target persons on the basis of their status as members of enemy armed forces. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction ¶ 70 (Int’l Crim. Trib. for the former Yugoslavia Oct. 2, 1995) (“Armed conflict exists whenever there is … protracted armed violence between governmental authorities and organized armed groups”). For one thing, the administration hasn’t made any effort to demonstrate that TdA is an “organized” armed group with the sort of command structure that would render members targetable on the basis of their status because they’re subject to commanders’ direction and control. In addition, although TdA members have engaged in violent activity against individuals in the United States, there hasn’t been any protracted armed violence between U.S. authorities and TdA. Indeed, last Tuesday’s strike might have been the only instance of such armed violence between those two parties. Therefore, any assessment within the administration that there is an ongoing armed conflict with TdA would be on especially weak legal ground.
Moreover, if the Department of Defense were to begin acting upon the assumption that the United States is engaged in an armed conflict with TdA, the possible implications could be staggering. Would it mean that the military could indefinitely detain TdA members found in the United States as enemy combatants? (That was the question raised but not definitively resolved in the al-Marri case back in 2008-2009.) Could it target them in the United States?
For all of these reasons, I assume that military attorneys would have been deeply skeptical had they been told that the boat could be targeted on an “armed conflict with TdA” theory.
And so the mystery remains: If none of these three explanations would have been enough to persuade military personnel to destroy what appeared to be a civilian vessel, what other explanation is there?
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- If the boat had been a Venezuelan-flagged vessel, or if the United States destroyed it because it believed those on the boat were acting at the direction of the Maduro regime, then the strike would have violated Article 2(4), notwithstanding President Trump’s vague assertion, in his War Powers report to Congress, that he ordered the strike for purposes of “self-defense” in order to “address [a] continuing threat to United States persons and interests.” To be sure, Article 51 of the Charter provides that Article 2(4) should not be read to “impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” This strike, however, couldn’t be justified as an exercise of “the inherent right of individual … self-defence” because the prerequisite of an “armed attack” on the United States was not present.The administration hasn’t suggested that there was any evidence that the boat itself was headed to the United States for purposes of an armed attack against the United States, i.e., where the U.S. would be (as the official French version of Article 51 indicates) the object of an armed attack (“est l’object d’une agression armée”). And even if there had been such evidence, the “inherent” right of self-defense would permit a use of force in response only if, inter alia, it were necessary to prevent that armed attack against the United States—i.e., only if “no reasonable alternative means of redress are available.” This precondition could not have been met here given Secretary Rubio’s representation that the military could have interdicted the vessel but chose instead to kill those on board only because the President wanted to “send a message.” Nor has the Administration asserted that persons on the boat, or the (unidentified) “organization” with which the boat was “affiliated,” had previously engaged in armed attacks against the United States and were planning to continue an ongoing series of such armed attacks in a way that might justify a use of force to deter such attacks.Last Wednesday, a White House spokesperson Anna Kelly issued a statement saying that the strike was taken “in the collective self-defense of other nations.” The President, however, didn’t make such a claim in his War Powers report, and for good reason. There’s no evidence that there was anything “collective” about the strike—no sign, that is, that the United States took the action at the request of, or in coordination with, any allies or partners who were subject to armed attacks from those on the boat or the organization with which the vessel is alleged to have been “affiliated.” ↑
- In the context of an armed conflict, the military will sometimes target a facility or other object that is commonly considered a civilian object—such as an oil transportation asset or a bulk cash storage site—that has become a valid military objective because (in the words of former DoD General Counsel Jennifer O’Connor) it “make[s] an effective contribution to the enemy’s ability to conduct or sustain combat operations” and that contribution is “definite,” a condition that is unlikely to be satisfied where the “causal chain between an object and its contribution to military action will generally make the military advantage to be gained from its destruction less certain, and more remote.” As O’Connor explained, even in such cases, the military will always take precautions to minimize the civilians harmed by the attack upon the military objective, including by “ordering the attack to occur at a time when the potential for any civilian casualties was deemed to be the lowest,” and will abstain from the attack if the expected incidental harm to civilians or civilian objects would be excessive in relation to the anticipated concrete and direct military advantage”—a requirement imposed by the principle of proportionality. The September 2 attack in the Caribbean obviously was not a strike of this sort—indeed, it didn’t occur in an armed conflict at all, and therefore could not have been undertaken in order to degrade an enemy armed force’s ability to conduct or sustain combat operations against the United States. ↑
