So far, the Trump administration
has killed twenty-one people using military strikes in the Caribbean.
Meanwhile, back at the ranch, President Trump has escalated his attempt to
deploy the military in cities throughout the United States, on the heels of the
Secretary of Defense informing his military brass that they are no longer going
to be bound by “stupid rules of engagement.”
And last week, Attorney General
Pam Bondi assured Trump that the United States is “going to take the same
approach” the government has with drug cartels against Antifa – a group that
Trump has unilaterally designated as a “major terrorist organization.” If you
are starting to connect the dots and are feeling a queasiness in your stomach,
then you know where the rest of this piece is headed. Steel yourself.
Let’s start with the bombing of
the drug boats. The Trump administration advanced its thin legal basis for the
four military strikes to date through a “confidential notice” to Congress last week. Its
argument is that 1) the targets are “designated terrorist organizations”; 2)
that the U.S. is in a “non-international armed conflict” with said
organizations; and 3) as a result anyone who belongs to these groups are “unlawful
combatants” and therefore valid military targets.
If these buzzwords sound familiar
to you, it’s because they are the same ones that were used in the legal
justifications for targeted killings (i.e., drone strikes) in the war on terror
following 9/11. However, to quote The Princess Bride, these words
do not mean what the administration thinks they mean, and throwing them
together into a word salad does not a legal justification make.
It is true that al Qaeda, and its
later iterations like ISIS, have been designated as Foreign Terrorist Organizations (FTO) by the executive
branch since 9/11. It is also true that the United States was in a
“non-international armed conflict” with these groups, and members of these
groups were considered “unlawful combatants.” However, the reason these
designations all made sense was because of three important things.
First, al Qaeda and related
groups met the definition of “armed groups” under international law, to wit:
They were armed and had “a sufficient degree of military organizations to
conduct hostilities” against the United States.
Second, they had (at different
points) already attacked the United States and were actively
planning more attacks; because they were non-state actors that did not observe
the laws of war (for example, they targeted civilians), they were “unlawful
combatants,” and military hostilities against them were considered a
“non-international armed conflict” under international law.
Finally, Congress
had passed an Authorization for the Use of Military Force (AUMF) shortly after
the 9/11 attack, authorizing the president “to use all necessary and appropriate
force” against any people, organizations, or nations who participated in 9/11.
In 2010, the Obama administration
put these factors together into a legal theory it called “preemptive
self-defense.” The idea here was that al Qaeda and associated forces were in a
state of constant planning of attacks against the United States, such that they
posed an ongoing, imminent threat of attack. (If the idea of something being
both “ongoing” and “imminent” makes you pause, it should.)
The President’s
Article II Commander in Chief authority, combined with the AUMF, justified the
use of lethal force against senior members of al Qaeda who were located outside
the active area of hostilities (i.e., not on a battlefield, where they would
already be a lawful military target by virtue of carrying arms against U.S.
forces).
Specifically, lethal force was
legally justified where 1) “an informed, high-level official of the United
States” determined that the targeted individual posed an “imminent threat of
violent attack” against the U.S.; 2) where capture was infeasible; and 3) the
operation was conducted in a manner consistent with the law of armed conflict (an international law
framework which requires that military force meet certain criteria, like
distinction of targets and proportionality, to be lawful).
The 2001 AUMF is incredibly broad
(and it is still in effect today!) – but I don’t think even the most hawkish
Republican in Congress could argue with a straight face that it would possibly
cover Central and South American drug traffickers. Without any kind of
congressional approval to engage in hostilities against these groups, Trump is (I think?) relying on his Article II Commander in Chief authority,
which – going back to the Civil War – has been interpreted to include a
“defensive war power” to protect the country in the event of an imminent
threat.
The problem is that smuggling
drugs into the country does not constitute an “armed attack” or the kind of
imminent threat that would justify the use of military force in self-defense.
More importantly, drug cartels do not even meet the definition of an “armed
group” with which we could be engaged in the kind of non-state conflict we were
post 9/11. Finally, remember the part about capture being infeasible? Well, not
for nothing but the Coast Guard has been (successfully) interdicting drug vessels on the high
seas for decades.
So, if the U.S. is not in an
authorized military conflict with these targets under either domestic or
international law, what is it? Well, colloquially, we call it murder.
Don’t take my word for it. Even
John Yoo, best known for co-authoring the so-called “torture memos” during the
George W. Bush years and one of the strongest proponents of Article II war
powers out there, argues that Trump is trying to extend the terrorism
framework into something that is more properly addressed through criminal law.
But I think there’s a reason the
Trump administration is doing that, and it’s because the Obama-era theory of
“preemptive self-defense,” which the administration is trying to distort, also
extended to a category of people over whom Trump may want to exert military
authority: American citizens.
Yes, that’s right, folks. In a
major instance of Bad Idea Jeans, the Obama Justice Department authored a white paper which analyzed the “balance of interests”
between an American’s rights under the Due Process Clause and the Fourth
Amendment right against unlawful seizure (i.e., a drone strike) and the
national security needs of the United States.
It concluded that the balance
tipped in favor of the government (surprise!) and that targeting a U.S. citizen
under the criteria set forth above would not constitute murder or an
“assassination,” which is prohibited under law. A lawsuit brought by the ACLU
and the Center for Constitutional Rights challenging the killing of three U.S.
citizens, including Anwar al-Awlaki, the American-born Islamic cleric involved
in several al Qaeda plots against the U.S., was dismissed by the district court for lack of standing
and because it raised “political questions” that were nonjusticiable by the
courts. In other words, the legality of the strikes was not something the court
could decide.
This is why Trump’s executive
orders designating “Antifa” as a “domestic terrorist organization” and
authorizing the Attorney General to designate other “domestic terrorist organizations,” alongside the
Secretary of Defense’s statements that the military is targeting “designated terrorist organizations” (without naming
them) should start ringing alarm bells.
For one, these are not real
things. Foreign terrorist organizations are a thing, and the
process and criteria for designating these are indeed delegated by Congress to
the executive branch under the Immigration and Nationality Act: In February,
the State Department designated several drug cartels under this rubric.
(Again, even this designation, on its own, does not automatically make them
lawful military targets.)
But the fact that the language
used by the administration since then has replaced the word “foreign” with
“designated” and “domestic” – and has even gone as far as to invoke “Antifa,”
an ideology that has no organizational structure or membership – when referring
to “terrorism” is a big sign that they hope to bring the war home, as it were.
And this is where the military
deployments into cities and Secretary Hegseth’s decision to basically authorize
war crimes is a big, big problem. If the Trump administration is trying to
conflate ordinary crime and even ideology with terrorism, and is taking the
position that being labeled as a “terrorist” – by God knows who in the Trump
administration and with no evidence, transparency, or judicial check –
justifies using lethal force against that person, then it’s just one step away
from ordering the military to do so.
In fact, Trump is calling cities
like Portland and Chicago “war zones” and told his generals they would be fighting the “enemy
within.” Like a good MAGA sycophant, House Speaker Mike Johnson has fallen in
line, calling the upcoming No Kings protests a “hate
America” rally led by “pro-Hamas” and “antifa” forces, with another
representative calling it a “terrorist” event.
Tom Nichols writes for The
Atlantic that the civil-military crisis is here, and that the military
“may soon face a terrible decision” – where the unlawful orders they are being
conditioned to follow in the Caribbean will be directed against the very people
they are sworn to defend and protect.
Following Bondi’s statement
regarding Antifa, Representative Adam Schiff asked, “You begin to wonder – do they believe they have the
authority by putting some groups on a list, even domestic groups, to use lethal
force against them, with no trial, no due process, no nothing? The reality is
we can’t rule that out.” No, we can’t.
Pay attention to what is happening on
the high seas, because the plan is to bring it to a city street near you.
-Asha Rangappa, The Freedom
Academy
