Has Trump’s Drug War Become an Unjust War? – John McCormack

Secretary of State Marco Rubio acknowledged in remarks on September 3 that the United States has for many years “established intelligence that allow us to interdict and stop drug boats,” but the president chose to blow the boat out of the water on September 2 because “interdiction doesn’t work because these drug cartels—what they do is they know they’re going to lose 2 percent of their cargo. … Instead of interdicting it, on the president’s orders, he blew it up. And it’ll happen again.”

Professor Robert P. George of Princeton University, a prominent conservative and leading scholar of natural law, told The Dispatch that the Trump administration appears to be waging war unjustly. “From what the current officials said, they wanted to kill them to deter this behavior, to send a message, to teach a lesson. Under traditional principles of just war theory, you cannot do that,” George said. “You could disarm or defuse the situation by capturing the people, preventing the military action, or, in this case, the importation of drugs into the country at relatively little risk to your own people in doing so.”

Eric Patterson, who has written books on just war theory, offered a contrary argument, likening drug traffickers to pirates who are “unlawful combatants” who are not protected by the rules of war. “You do not have to keep warning pirates, brigands, terrorists,” Patterson told The Dispatch. The longstanding U.S. policy of interdicting drug boats has not “deterred or stopped additional” drug trafficking, Patterson said. “We’re sending a very clear message: You want to harm young people? You want to kill Americans with this stuff? That’s an act of war on our populace. We’re not going to stand for it.” 

George rejected the argument. “I don’t think there’s anybody on whom it’s open season,” he told The Dispatch. “If you can incapacitate someone and render him harmless … at no significant risk to yourself and your own forces, then that person is entitled to the protections of noncombatant immunity.”

This is of course a debate that rests partly on the assumption of many facts about at least 14 dead Venezuelans whose bodies are now somewhere in the Caribbean Sea. “I certainly don’t know all the potentially relevant facts,” George said. “I’m not sure anybody outside of the people responsible for the attack and those on the boat know all the facts that would be relevant. So I’m hesitant to offer any unrevisable judgments about this, and that’s a problem.”

Indeed, two weeks after the initial strike, key facts about the Trump administration’s official story remain unclear.

First, start with the administration’s claim that the boat blown up on September 2 was destined for the United States. Secretary of State Marco Rubio initially said that “these particular drugs were probably headed to Trinidad or some other country in the Caribbean,” then later changed his story to align with the official administration claim that the boat was headed to the United States. A State Department spokesman did not reply to a request from The Dispatch to explain Rubio’s changing story. Trinidad, located just 7 miles off the coast of Venezuela, is a far more plausible destination than a 2,000-mile journey by sea to the United States for such a small boat. On September 10, the New York Times reported the boat was not even heading north at the time it was destroyed. The boat “appeared to have turned around before the attack started,” the Times reported, according to officials familiar with the matter, and “the military repeatedly hit the vessel before it sank.”

And what evidence is there that the 11 members on board were in fact members of the gang Tren de Aragua and were in fact trafficking drugs? “We have tapes of them speaking,” Trump said on September 3. It’s plausible the boat was trafficking drugs, but those tapes have not been shared with the public or Congress. Professor David Smilde of Tulane, an expert on Venezuela who wrote about the issue for The Dispatch, cast doubt on the Trump administration’s claims. “It would be very atypical” for a small speedboat trafficking drugs to have 11 people aboard, Smilde told The Dispatch in an email, and such a boat would typically have a crew of just three to five people to maximize “capacity for the cargo. If there were 11 people on board at least some of them were probably migrants.”

A September 10 letter signed by 25 Senate Democrats, including Mark Warner of Virginia, the ranking member of the Senate Intelligence Committee, asked Trump to respond to several unanswered questions, including: “Who were the individuals targeted in the strike, and what intelligence does the Administration have regarding their identities, any imminent threat they did or did not pose, what crimes they were accused or suspected of, and what alleged affiliations they had with a narcotrafficking criminal organization?”

The Trump administration has a dodgy record of labeling people members of Tren de Aragua in order to achieve a policy objective: At least some people who likely had no connection to the gang were deported to a brutal prison in El Salvador this spring without any due process under the Alien Enemies Act. The administration also has a legal reason to engage in a shooting war with Tren de Aragua: On September 3, a panel of judges on the 5^th Circuit Court of Appeals ruled against the president’s authority to deport alleged members of Tren de Aragua under the Alien Enemies Act because the gang had not engaged in an “invasion” or “predatory incursion” necessary for the law to be invoked. “The more this conflict with Tren de Aragua looks like real war—the more it looks like lawful warfare—the stronger the president’s arguments are under the Alien Enemies Act to deport,” Harvard law professor Jack Goldsmith, a former Bush Justice Department lawyer, said on his podcast on September 8. 

There is, of course, a strong argument that the president has no legal authority to blow up the boats of suspected drug traffickers. Although the State Department has designated Tren de Aragua as a “foreign terrorist organization,” such a designation does not provide a legal basis for killing its members. There is no congressional authorization of military force against drug traffickers in general or Tren de Aragua in particular. In his war powers letter to Congress, Trump simply cited his inherent authority as commander in chief.

But even if Trump’s drone war against suspected drug traffickers is illegal, Congress is the only institution with the power to stop him, and it’s not going to do that. Democratic Sens. Tim Kaine of Virginia and Adam Schiff of California intend to introduce a war powers resolution to stop the military strikes, but there hasn’t been widespread outrage over the attacks among congressional Democrats, and virtually no Republicans are expected to vote against Trump. 

Kentucky Sen. Rand Paul has been the lone Senate Republican to speak out against the attack. “The reason we have trials and we don’t automatically assume guilt is what if we make a mistake and they happen to be people fleeing the Venezuelan dictator?” Paul said in a September 3 appearance on Newsmax. And a few days later, he got into a fight on social media with Vice President J.D. Vance.

“Killing cartel members who poison our fellow citizens is the highest and best use of our military,” Vance wrote on Twitter on September 6. In response to a post that said “killing the citizens of another nation who are civilians without any due process is called a war crime,” Vance replied: “I don’t give a shit what you call it.” 

“JD ‘I don’t give a shit’ Vance says killing people he accuses of a crime is the ‘highest and best use of the military,’” Paul posted in response to Vance’s tweet. “What a despicable and thoughtless sentiment it is to glorify killing someone without a trial.” 

But within the GOP, it’s Paul’s sentiment that’s in short supply, and that’s why there’s every reason to expect the killings to continue.