WASHINGTON (AP) — Under President Donald Trump, the drug war is looking a lot like the war on terror.
To support strikes against Latin American gangs and drug cartels, the Trump administration is relying on a legal argument that gained traction after the Sept. 11, 2001, attacks, which allowed U.S. authorities to use lethal force against al-Qaida combatants who attacked the World Trade Center and the Pentagon.
The criminal groups now being targeted by U.S. strikes are a very different foe, however, spawned in the prisons of Venezuela, and fueled not by anti-Western ideology but by drug trafficking and other illicit enterprises.
Trump’s use of overwhelming military force to combat such groups and authorization of covert action inside Venezuela, possibly to oust President Nicolás Maduro, stretches the bounds of international law, legal scholars say. It comes as Trump expands the military’s domestic role, deploying the National Guard to U.S. cities and saying he's open to invoking the nearly 150-year-old Insurrection Act, which allows for military deployment in only exceptional instances of civil unrest.
So far, the military has killed at least 27 people in five strikes on boats that the White House said were carrying drugs.
The strikes — the most recent came Tuesday, in which the U.S. killed six people — have occurred without any legal investigation or a traditional declaration of war from Congress. That raises questions about the justifications for Trump's actions and the impact they could have on diplomatic relations with Latin American nations who recall with deep resentment repeated U.S. military interventions during the Cold War.
The U.S. intelligence community has also disputed Trump's central claim that Maduro’s administration is working with the Tren de Aragua gang and orchestrating drug trafficking and illegal immigration into the U.S.
‘You can’t just call something war'
Trump’s assertion that the United States is engaged in an “armed conflict” with drug cartels is based on the same legal authority used by the Bush administration when it declared a war on terror after the Sept. 11 attacks. That includes the ability to capture and detain combatants and to use lethal force to take out their leadership.
But the United Nations charter specifically forbids the use of force except in self-defense.
“You just can’t call something war to give yourself war powers,” said Claire Finkelstein, a professor of national security law at the University of Pennsylvania. “However frustrated we may be with the means and results of law enforcement efforts to combat the flow of drugs, it makes a mockery of international law to suggest we are in a noninternational armed conflict with cartels.”
After 9/11, it was clear that al-Qaida was actively plotting additional attacks designed to kill civilians. But the cartels' main ambition is selling dope. And that, while harmful to American security overall, is a dubious justification for invoking war powers, said Geoffrey Corn, a Texas Tech law professor who previously served as the Army’s senior adviser for law-of-war issues.
“This is the government, in my humble opinion, wanting to invoke war powers for a lot of reasons" — including political ones, Corn said.
“Even if we assume there’s an armed conflict with Tren de Aragua, how do we know everyone in that boat was an enemy fighter?” he said. “I think Congress needs to know that.”
Trump defends the strikes
Asked at the White House on Wednesday why the U.S. does not use the Coast Guard to stop the Venezuelan vessels and seize any drugs, Trump replied, “We have been doing that for 30 years and it has been totally ineffective.”
The president also suggested the U.S. may strike targets inside Venezuela, a move that would significantly escalate tensions and the legal stakes. So far, the strikes have occurred in international waters beyond the jurisdiction of any single country.
“We’ve almost totally stopped it by sea," Trump said of flow of drugs. "Now we’ll stop it by land.”
Trump was also asked about a New York Times report saying he had authorized a covert CIA operation in Venezuela. Trump, who has harshly criticized the 2003 U.S. invasion of Iraq that overthrew the government of Saddam Hussein, declined to say whether he had given the CIA authority to take out Maduro, saying it would be “ridiculous" to answer.
Numerous U.S. laws and executive orders since the 1970s make it illegal to assassinate foreign officials. But in declaring the Venezuelans unlawful combatants, Trump may be seeking to sidestep those restrictions and return to an earlier era in which the United States — in places like Guatemala, Chile and Iran — regularly carried out covert regime change missions.
“If you pose a threat, and are making war on the U.S., you’re not a protected person," Finkelstein said.
During Trump’s first term, Maduro was indicted on U.S. federal drug charges, including narcoterrorism and conspiracy to import cocaine. This year, the Justice Department doubled a reward for information leading to Maduro’s arrest to $50 million, accusing him of being “one of the largest narco-traffickers in the world.”
But Trump's focus on Venezuela overlooks a basic fact of the drug trade: The bulk of American overdose deaths are from fentanyl, which is transported by land from Mexico. And while Venezuela is a major drug transit zone, around 75% of the cocaine produced in Colombia, the world's leader, is smuggled through the eastern Pacific Ocean, not the Caribbean.
Congress and the ICC have been sidelined
Under the Constitution, it must be Congress that declares war. So far, though, there has been little indication that Trump's allies will push back on the president's expansionist view of his own power to go after cartels the White House blames for tens of thousands of American overdose deaths each year.
The GOP-controlled Senate recently voted down a war powers resolution sponsored by Democrats that would have required the president to seek authorization from Congress before further military strikes.
Despite pressure even among some Republicans for a more complete account, the Trump administration has yet to provide underlying evidence to lawmakers proving that the boats targeted by the U.S. military were carrying narcotics, two U.S. officials familiar with the matter told The Associated Press. Independent Sen. Angus King of Maine said he and other members of the Senate Armed Services Committee in a classified briefing this month were also denied access to the Pentagon’s legal opinion about whether the strikes adhered to U.S. law.
Legal pushback isn't likely to sway the White House either. A Supreme Court decision arising from an attempt in 1973 by a Democratic congresswoman to sue the Pentagon to stop the spread of the Vietnam War to neighboring Laos and Cambodia set a high bar for any legal challenge of military orders, Finkelstein said.
Meanwhile, relatives of the Venezuelans killed in the boat attacks face their own obstacles following several high court rulings narrowing the scope of foreign citizens to sue in the U.S.
The military strikes took place in international waters, opening the door for the International Criminal Court to launch an investigation along the lines of its war crimes probes against Russia and Israel — which, like the United States, don’t recognize the court’s authority.
But the Hague-based court has been consumed by a sexual misconduct probe that forced its chief prosecutor to step aside. U.S. sanctions over its indictment of Israeli Prime Minister Benjamin Netanyahu have also hindered its work.