The New York Times’ Charlie Savage and Eric Schmitt reported yesterday of a “notice” the Trump administration provided to several congressional committees this week, purporting to explain the legal basis for the U.S. military’s recent strikes on what appear to be civilian boats in international waters in the Caribbean—including, in particular, a strike on September 15 that killed three persons. According to the congressional notice, President Donald Trump has determined that the United States is engaged in a noninternational armed conflict with certain drug cartels that are “armed groups” the President has designated as “terrorist organizations.” Presumably the groups in question are some or all of the eight cartels that Secretary of State Marco Rubio (not the President) designated as “Foreign Terrorist Organizations” and as “Specially Designated Global Terrorists” for purposes of sanctions under the International Emergency Economic Powers Act (IEEPA) and the Immigration and Nationality Act (INA) on February 20. The members of such cartels are, on the administration’s view, “unlawful combatants” who can be targeted with lethal force based upon their status as members of a non-State armed group engaged in an armed conflict against the United States.
At the end of a piece I published here on September 10 involving the dubious legality of the Caribbean strikes, I surmised that such an “armed conflict” theory might have been the rationale administration officials have offered to military commanders and other personnel to try to persuade them that the lethal strikes on civilians do not violate the law and a venerable, longstanding Department of Defense prohibition on targeting civilians. The new notice to Congress confirms that this is, indeed, the administration’s legal theory, even though—for some reason—Trump did not invoke an armed conflict rationale in his September 4 War Powers Resolution report to Congress regarding the first of the Caribbean strikes, on September 2.
It’s not difficult to see why the administration would be inclined to invoke an armed conflict if there were any basis for doing so. For starters, if there were a noninternational armed conflict—a question determined by international law, as I describe below—then at least one important thing follows as a matter of international law. The parties to such a conflict must comply with the law of armed conflict (LOAC), including the principle of distinction that prohibits the targeting of civilians (and civilian objects). The members of enemy forces, however, are not considered civilians under the LOAC. Indeed, international law affords the State the right to try to destroy the non-State party’s military objects and to use lethal force against members of the organized enemy armed force on the basis of their status as such members. As far as international law is concerned, it would even allow killing them when they are at home, or when they are in the United States, as long as the expected incidental loss of civilian life was not disproportionate to the expected direct and concrete military value of killing the enemy fighters.
What’s more, as I explained in my September 10 piece, if there were a noninternational armed conflict as a matter of international law, then that could have implications for one or more of the domestic-law prohibitions I discussed in that article, too: A targeting of enemy armed forces in compliance with the LOAC does not violate the Assassination Ban in Section 2.11 of Executive Order 12333, and it also might not violate the murder prohibitions in the U.S. Criminal Code and in the Uniform Code of Military Justice, at least if the president has affirmative domestic law authority to engage in such status-based attacks (though, as I discuss below, he lacks such authority here). (As I explained in my earlier piece, I don’t mean to suggest that any operational military personnel should themselves be criminally prosecuted for carrying out a presidential order such as this one; my point is simply to emphasize that Congress appears already to have prohibited such conduct and that attorneys in the Executive Branch, and members and committees of Congress, ought to consider the apparent application of these statutory prohibitions when assessing the legality of the targeting in these cases.)
The Trump administration’s “armed conflict” justification, however, is groundless. No one—in the public, in Congress or, most importantly, in the military itself—should treat it as a plausible legal basis that might justify lethal strikes on the alleged drug vessels and the civilians on those boats.
There are at least two basic problems with the assertion.
The first and most fundamental problem is simply that the United States is not engaged in an armed conflict with any drug cartel. Under the well-established understanding of the preconditions for a “noninternational armed conflict,” it is necessary (at a minimum) (i) that the non-State entity 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 and (ii) that the organized armed group has engaged in armed violence against the State that is of some intensity (think of al Qaeda’s attacks on Sept. 11, 2001) and that has been protracted. See Prosecutor v. Haradinaj, Case No. IT-04-84-T, Trial Judgment ¶ 49 (Int’l Crim. Trib. for the former Yugoslavia, Apr. 3, 2008); 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); International Committee of the Red Cross, Commentary to Common Article 3 of the Geneva Conventions, Part C-2-b.
The Trump administration hasn’t made any effort—not publicly, anyway—to demonstrate that any of the drug cartels in question are “organized” armed groups with the sort of command structure that would render members targetable on the basis of their status. But even if it could do so, those cartels haven’t engaged in any protracted or intense armed violence against the United States.
The notice the administration sent to Congress this week asserts, without citing any evidence, that the cartels “conduct ongoing attacks throughout the Western Hemisphere” and that “their actions constitute an armed attack against the United States.” The notice, however, doesn’t identify any such armed attack against the United States, let alone attacks of sufficient intensity and duration to establish a noninternational armed conflict with the United States. (I am uncertain whether intense armed violence that isn’t “prolonged” or “protracted” would suffice to establish a noninternational armed conflict, but that question isn’t relevant here, where the cartels haven’t engaged in armed attacks against the United States that are prolonged or intense.). It’s fairly evident from the notice that when the President uses the term “armed attack” he is referring not to any actual armed attack as any States or international tribunals understand that term, but instead to the “flow of illicit narcotics into the United States,” which “illegally and directly cause the deaths of tens of thousands of American citizens each year.” The distribution of dangerous narcotics, however, isn’t an armed attack or armed violence in the sense used in international law to determine whether an armed conflict has commenced. As far as I know, there’s nothing in international law that even suggests that such drug activity is sufficient to trigger the right of the affected State to kill persons simply because they are members of the drug cartel (which isn’t surprising, given the radical implications of such a theory).
No one—in the public, in Congress or, most importantly, in the military itself—should treat [the notice] as a plausible legal basis that might justify lethal strikes on the alleged drug vessels and the civilians on those boats.
The second considerable problem with the president’s new “armed conflict” theory is that even if there were an armed conflict—i.e., even if, contrary to any evidence, a particular drug cartel was an organized armed group that has engaged in intense or prolonged armed attacks against the United States—it’s likely that the Constitution would preclude Trump from ordering ongoing status-based targeting of members of that cartel due to the absence of any domestic law authority. To be sure, Article II empowers a president to repel an actual attack against the United States (or its troops). But that’s a far cry from authorizing an ongoing series of status-based strikes by the United States against a non-State armed group as part of an exchange of attacks that is sufficiently prolonged or intense to establish a noninternational armed conflict. At least if one assumes, as Trump appears to do, that this purported armed conflict would continue for some time, then it would almost surely be of such “nature, scope and duration” to constitute “war in the constitutional sense” (see Office of Legal Counsel opinions across many administrations to which I linked in my September 10 article), and therefore would require congressional authorization pursuant to the “Declare War” clause of Article I, section 8 of the Constitution. (And, at a minimum Section 5(b) of the War Powers Resolution would prohibit such attacks as of 60 days after they began, i.e., after November 1.)
For these reasons, the Trump administration’s newly announced determination that the United States allegedly is engaged in an armed conflict with an untold number of drug cartels does not offer any basis for concluding that the Caribbean strikes have been lawful. Moreover, as others will surely emphasize, such a determination raises very troubling questions about possible military action against alleged cartel members in the United States itself, and on the territory of other nations.
