Beginning in early September, the United States military, on orders of the president, has been lethally targeting suspected drug trafficking boats in the Caribbean, killing 17 people and destroying three vessels that we know of to date, with a stated intention of continuing the strikes.
President Donald Trump has now “decided that the United States is engaged in a formal ‘armed conflict’ with drug cartels his team has labeled terrorist organizations and that suspected smugglers for such groups are ‘unlawful combatants.’” The administration has not publicly explained the factual basis for its claim that a state of armed conflict exists. Although a recent notification to Congress under Section 1230 of the Fiscal Year 2024 National Defense Authorization Act (Section 1230) states that the president has “determined [that the designated cartels’] actions constitute an armed attack against the United States,” it has not explained how this determination is consistent with well-accepted definitions of what constitutes an “armed attack” under international law. It has also yet to explain how it determines who within the drug trade is deemed an “unlawful combatant” (and thus, in its view, subject to lethal targeting) as opposed to a suspected criminal entitled to due process.
In a closed briefing with the Senate Armed Services Committee earlier in the week, the Pentagon’s top lawyer is reported to have “repeatedly referred to Trump’s designation of some Latin American drug cartels as foreign terrorist organizations, which he said granted the Defense Department unilateral authority to use military force against them.” Terrorism designations do not, however, confer any additional legal authority to use military force, nor do they indicate the existence of an armed conflict with those who are designated.
At bottom, it appears the Trump administration is claiming that the president has the legal authority to summarily kill civilians suspected of engaging in criminal conduct, and has asserted that labeling the situation a “war,” and the suspected drug trade-related individuals involved “unlawful combatants,” makes these killings lawful.
Attorney General Pam Bondi will testify before the Senate Judiciary Committee on Tuesday. Here’s an annotated set of questions members of the Judiciary Committee should be asking Bondi, particularly given the Judiciary Committee’s important role in oversight of activity that implicates U.S. criminal statutes.
Questions for AG Bondi on Extrajudicial Killings in Vessel Strikes in the Caribbean
Provision of Legal Advice
1. Did you, OLC, or anyone else in the Department of Justice (DOJ) provide legal advice, in oral or written form, regarding whether it is lawful for the United States to kill suspected drug traffickers (and destroy suspected drug trafficking boats)?
a. If yes:
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- Did you do so before the first strike?
- Can you describe your legal theory?
- Will you brief the Committee on it?
b. If no:
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- Were you or anyone at DOJ asked to provide your legal assessment before the first strike? If so, why did you not provide advice?
- Do you think it is appropriate for the President to take an action as consequential as using his Article II constitutional authority to order killing, particularly on a novel theory, without consulting with his Attorney General?
Notes: The Attorney General, and the Office of Legal Counsel (OLC) within the Department of Justice (DOJ), play an important role in providing advice to the President on the legality of executive actions that involve national security. Although lawyers at other national security departments and agencies, and the Legal Adviser to the National Security Council, are also involved in providing such legal advice, OLC has traditionally advised Presidents on whether they may use force without congressional authorization, as demonstrated by the long line of opinions it has published on the topic. The views of the Attorney General (which OLC exercises by delegation) are also particularly important when domestic criminal laws may be implicated, because of DOJ’s role in enforcing those laws.
The administration has not yet explained publicly which lawyers or legal offices signed off on these strikes before they were executed, if any, or provided any meaningful legal rationale for: the domestic legal authority for the killings; the international legal authority for the killings; why the strikes did not violate domestic criminal laws and the prohibition on assassination, as described below; or why the strikes did not violate international human rights law obligations of the United States.
Violation of Domestic Murder Statutes and Assassination Ban
2. Under U.S. domestic law, murder is defined as “the unlawful killing of a human being with malice aforethought”—within the “special maritime and territorial jurisdiction of the United States.”
a. Do you agree that the federal murder statute applies to murder committed on the high seas? And to a conspiracy to commit murder on the high seas? If so, do you agree that the strikes on boats in international waters violate the federal murder and conspiracy statutes?
b. If not, why not? On what authority do you rely to claim that the preplanned killings were not in violation of the federal murder and conspiracy statutes?
3. Section 2.11 of Executive Order 12333 provides: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”
a. Do you agree that this provision would prohibit unlawful premeditated killing?
b. If so, do you agree that the strikes on the boats violated the prohibition?
c. If not, why not? On what theory were the strikes lawful?
Notes: Marty Lederman explained these criminal statutes and prohibitions as follows:
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 strikes here, and the planning for it in the United States, did not violate these laws.
Section 2.11 of Executive Order 12333, . . . 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.
Scope of Art. II Authority
4. In its report to Congress pursuant to the War Powers Resolution, President Trump claimed that his “constitutional authority as Commander in Chief and Chief Executive to conduct United States foreign relations” provided authority to kill suspected drug traffickers.
a. Is it your view that Art. II of the Constitution allows the President to use lethal force against anyone he deems a “terrorist”? If so, what criteria would need to be met for an individual or organization to be deemed “terrorists”?
b. Is it your view that Art. II “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”?
c. Could the President order the military to kill a “terrorist” in the middle of a city? Bogota? Paris? Chicago? If not, why would he have the authority to order the strikes that have been taken but not those strikes?
5. Under the accepted analysis of Justice Robert Jackson in Youngstown Sheet and Tube v. Sawyer, the President’s power is at its lowest ebb when he “takes measures incompatible with the expressed or implied will of Congress.”
a. Is it your view that the President is constrained by congressionally enacted criminal statutes, including the prohibition on murder on the high seas? What about murder in the territory of the United States?
- If yes, then how could he order the strikes?
- If no, then what express or implied constitutional authority do you think the President could rely on to over-ride those statutes? To the extent it’s the President’s authority as commander in chief, the majority in Youngstown made clear that such authority has traditionally supported action in a theater of war, and there is no declared war or armed conflict present here. Can you name a remotely analogous example of a President over-riding a criminal statute in this way?
b. Is it your view that the President is constrained by the provision of the War Powers Resolution that requires him to suspend “hostilities” after 60 days, unless Congress authorizes him to continue? If yes, then will the President have to stop the strikes after 60 days? If not, why not?
Notes: As Marty Lederman has explained, there is “no 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.”
Put simply, there is no law that provides the president the power to order the military to summarily kill people he believes may be planning to commit crimes in the United States, even assuming those who were killed in these strikes were in fact attempting to smuggle drugs into the United States. There are, in fact, criminal prohibitions (murder, conspiracy to commit muder) that prohibit such killings. And when the President takes actions contrary to to duly enacted statutes, he is acting at the “lowest ebb” of his authority – in which the actions can only be claimed to be lawful if the President has exclusive authority over the matter and Congress may not regulate it based on its own Article I authority. That is plainly not the case here, where Congress’ role in criminally prohibiting actions such as murder is beyond question (and where Congress also has the authority to “Declare War,” alongside a host of other armed conflict-related authorities in Article I).
Claimed Wartime Authorities
6. The report submitted under Section 1230 states that the “President determined that the United States is in a non-international armed conflict with these designated terrorist groups” and that the President “determined that [the actions of designated terrorist organizations] constitute an armed attack against the United States.”
a. Please identify these “designated terrorist groups.”
b. Did you determine that a state of armed conflict exists with any narco-terrorist organization? Which organization or organizations? On what factual basis?
c. Please describe, as a matter of law, why the United States is in an “armed conflict” with these groups? What legal test was used for determining the existence of an armed conflict? Does this “non-international armed conflict” extend to the territory of the United States? If not, why not?
d. You say the groups engaged in an “armed attack” against the United States. What was this armed attack?
e. Could the President just determine that the United States is in an armed conflict with any groups he designates, including domestic terrorist organizations? If not, why not?
7. The report states that the Sept. 15 strike killed “approximately 3 unlawful combatants.”
a. How does this administration define “unlawful combatants”?
b. What “designated terrorist organization” were these people affiliated with? What were their roles in those organizations? Are all people affiliated with these organizations considered “unlawful combatants”?
c. Are U.S. citizens who illegally sell drugs within the United States that were trafficked from abroad “unlawful combatants”?
Notes: For analysis on:
- why drug trafficking does not itself constitute an “armed attack” or trigger the existence of an armed conflict under international law (“under the law of armed conflict (LOAC), drug trafficking and other drug-related actions, standing alone, cannot trigger either an international or non-international conflict”), read Mike Schmitt;
- why adding the label “terrorist” does not transform a civilian suspected of engaging in criminal activity into a combatant, and why it is dangerous to erase the lines between law enforcement and military operations, read Mark Nevitt;
- why the administration’s arguments advanced to date are “effectively asserting the prerogative to kill outside the law entirely” rather than an extension of past arguments regarding the use of force and the scope of armed conflict made during the so-called “global war on terrorism,” read Brian Finucane;
- the lack of limiting principles that would cabin these uses of force to the high seas (or to territory beyond the United States), the lack of a plausible self-defense argument for the vessel strikes to date, why the domestic murder statutes and international legal prohibitions on extrajudicial killings are applicable to these strikes, and a discussion of a range of related domestic and international law issues, listen to this podcast with Tess Bridgeman, Brian Finucane, and Rebecca Ingber.
Editor’s note: Readers may also be interested in Marty Lederman’s most recent analysis as well: Legal Flaws in the Trump Administration’s Notice to Congress on “Armed Conflict” with Drug Cartels, Just Security (Oct. 3, 2025) and Just Security‘s Collection: U.S. Lethal Strikes on Suspected Drug Traffickers (updated, Oct. 3, 2025).
