Conversely, the horrific scenes from World War I or the Iraq War do not involve soldiers and civilians racing to shelters or fumbling for gas masks as great billowing clouds of cocaine rolled in.
Indeed, that would make a pretty funny Monty Python skit, as soldiers started playing Rick James or the Village People as they danced in the trenches, and made any number of poor decisions. Or maybe they’d hang out in a foxhole listening to Eric Clapton’s epic song, “Mustard Gas.”
The point here is that distinctions matter. Sh-t is not Shinola or chocolate lava cake. And if you operate from the assumption that they’re all the same, your shoes will stink or you’ll be visiting the ER soon.
Lots of people die from car accidents, but we don’t bomb cargo ships from Japan or Europe carrying cars into the United States on the grounds that we’re saving thousands of lives every time we do. Of course, there’s an important distinction to be made there. Cars are not illegal, but cocaine (basically) is.
So once again: Distinctions matter.
In many ways, the legal profession is simply about making meaningful distinctions. Why are superficially similar acts treated differently? As a general observation, it is illegal to shoot someone. But not every person who shoots another person is charged with the same crime, or even any crime at all. That’s why we have all of these different legal categories for killing: first, second, and third degree murder (in some states); involuntary homicide; negligent homicide; justifiable homicide, etc.
Speaking of the law, my friend Andrew McCarthy makes a great distinction in the context of this pseudo-war in the Caribbean. You should read the whole thing, but the key point is, even if someone is a terrorist—or “narco-terrorist”—you can’t just kill them without proper authorization. “If there is no armed conflict (i.e., no war or state of hostilities short of war, no military attacks or threat of military attacks), then the president has no authority to use lethal force against suspected terrorists.” A bit further on, he adds:
If we think about it, we realize that in peacetime, government agents may not just walk up to a suspected terrorist on the street in New York or London or Karachi and shoot him dead. In peacetime, due process rules and law enforcement protocols are binding on the government. No matter how abominable we may believe a terrorist to be, the executive branch must honor those standards.
Andy’s point is not that we can’t—or shouldn’t—kill terrorists (Andy has a spotless record on killing terrorists when it’s necessary and legal), it’s that you need the law on your side when you do. Before Congress declared war on Nazi Germany, a cop couldn’t legally shoot or arrest a dude in a Nazi uniform walking down the street in New York. After the declaration of war, the legal regime changed. Once war is declared, it still may be wrong or ill-advised to shoot the Nazi on sight rather than detain him, but detaining him goes from a violation of the apparent Nazi’s rights to an obviously prudent obligation (after all, the guy may not actually be a German or a Nazi, he might just be going to a costume party or something).
This brings us back to Schlichter’s question-begging argument. There are excellent objections to the administration’s current policy of blowing up drug boats. Many serious people note that it would be more effective to detain and interrogate the crews for useful intelligence. But the argument for a policy of blowing them up is not on its face preposterous either. It certainly sends a signal, and signals matter. Now, I think the signals the administration is trying to send aren’t primarily about drug trafficking. One signal is about trying to scare the Shinola out of Nicolás Maduro. Another is to assert dominance in the Americas under the “Trump Corollary” to the Monroe Doctrine. A third is about sending a domestic political signal that this administration is manly, tough, and oh-so-serious about the drug war. But sure, there’s a message being sent to the cartels too.
But none of that is relevant to the real argument here. Nor are the lies and exaggerations used to justify the campaign. Donald Trump says 25,000 lives are saved every time we blow up one of these boats. Schlichter says 100,000 people died from drugs in the last year, which is roughly true. But most of those deaths are from opioids, which don’t seem to be on these boats. The Centers for Disease Control and Prevention says 22,000 people died last year from cocaine overdoses, in a country where an estimated 27.7 million people have used cocaine at least once in their lives.
The relevant argument is whether the president has the unilateral power to declare people “narco-terrorists” and then kill them essentially on sight. That’s the “meaningful difference” that Schlichter et al. cannot see.
If Congress declared war—or otherwise authorized military force—against drug traffickers, the administration’s policy might still be legally iffy under international law. And before you roll your eyes and shout “Globalist!” at me, bear in mind many of these are international laws ratified by Congress that are in our interest. We’re signatories to the Geneva Conventions, after all.
But Congress has not done that. So the relevant issue is whether the president can unilaterally declare a category of people killable on his say-so alone. I’m open to debating the wisdom of the policy, but the policy is in many ways a red herring.
And so is the question of whether we can blow up boats carrying mustard gas to the United States. Of course, we can and in some circumstances almost surely should. But is it impossible to think of situations where we shouldn’t, and in which it would be a crime to do so? What if the boats are carrying it from a failed state to be destroyed safely? Destroying the boats without authorization then would be both stupid and murder. Again, distinctions matter. The law matters. You’d think lawyers would know this—or care.
The president has declared that mass immigration is an “invasion.” An invading army can be shot at before Congress approves the use of force. Can “invading” immigrants be shot? If not, why not? After all, some tiny fraction of illegal immigrants do murder Americans and a larger small fraction transport or sell drugs to Americans—though you might think it’s a huge number if you got all your news from some MAGA-friendly outlets.
Obviously, I think a blanket policy of shooting illegal border crossers on sight would be grotesque. But if the president has the legal authority to make this call unilaterally, what’s the principle or mechanism preventing him? If illegal immigrants are invaders, does that mean churches, soup kitchens, not to mention the hotels and farms hiring them, are traitorous collaborators? And what about the people using cocaine? They are funding narco-terrorism. Can the feds shoot Rick James? Put him in a POW camp? Probably not—because, sadly, he’s passed away. But you get the point.
Why not? Maybe the administration has answers. I’ll even grant that it doesn’t want to do such things. But it’s not offering any legal justifications for what it is doing right now. They’d rather lean into the tough guy stuff and just claim that the president can do this because he’s so awesome. I mean, think about it: It’s amazing and appalling that the administration says his justification for his private war in the Caribbean is “classified.” Why? Because the cartels might find out we want to blow up boats? Or is it because they just want to send the signal that the president can get away with it, the law be damned?
“One of the first motives to civil society, and which becomes one of its fundamental rules,” Edmund Burke famously observed, “is that no man should be judge in his own cause.” This idea goes back to Roman law, “Nemo iudex in causa sua.” The same principle applies—albeit with more nuance and flexibility—to presidents. We have separate powers in our government because the founders didn’t want a president to act like a king.
Presidents can definitely kill people. But they can only legally do so when they have the authority to do so. No president should wait for Congress to get its act together if it has good reason to believe America is about to be attacked or some similar hypothetical. But after the president responds, he is supposed to explain why he was lawfully justified to act.
If it turns out he was wrong about the threat, he might be in political trouble. If it turns out he knew we weren’t being attacked and just wanted to take out a ship or a boat, he should be impeached, and if removed, criminally prosecuted.
In all other cases, he is required to wait for Congress to pass a law or declare a war before he starts killing people. That’s not this situation for all sorts of reasons, including the fact that cocaine is not remotely like mustard gas.
