Lawfare Daily: U.S. Military Conducts Lethal Strike on Venezuelan ‘Drug Boat’

[Intro]

Rebecca Ingber: The idea that we did not have effective control the U.S. military versus what is, the equivalent of a fishing vessel, right, that we did not have effective control over these circumstances sufficient that we could have done something differently is, farcical. And so I, I think we're, I think they are creating the textbook case for why international human rights law should apply to these circumstances.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare with Lawfare Senior Editor Scott R. Anderson and professor of Law at Cardoza Law School Rebecca Ingber.

Scott R. Anderson: Presidential authority in this area is a little bit of a one-way ratchet. Once it does something, it creates a precedent future presidents may rely on. And the way you can chip away with that is really criticizing it and being very public about the problems with it.

And so I do think there's value to that and reasons to keep talking about it doesn't mean the president's gonna be stopped in this one case or be able to account in this one case, very unlikely.

Benjamin Wittes: Today we're talking about the U.S. strike on that alleged drug boat traveling from Venezuela, the president's authority to use lethal force outside of armed conflict, and more.

[Main Podcast]

Guys, I wanna start just with what we know about what happened. Scott, get us started, a boat went boom in the Caribbean. What, what do we know about what happened and why do people care?

Scott R. Anderson: So on Tuesday around midday, President Trump mentioned to a group of reporters in the Oval Office for an unrelated event. We literally shot out a boat, a drug carrying boat, just minutes ago, something to that effect. I think I'm actually quoting the language as quoted in the relevant reporting.

Secretary of State Marco Rubio then tweeted out within moments a tweet, essentially saying, as the president just confirmed, the U.S. military has conducted a lethal strike to the Southern Caribbean against a drug vessel, which had departed from Venezuela and was being operated by a designated narco-terrorist organization.

And then a few hours later, we got a much more formal is not quite right, but much more detailed description that obviously is copying and pasting from some sort of official language on through social from President Trump himself where he said U.S. military forces had conducted a kinetic strike against quote unquote, positively identified Tren de Aragua narco-terrorists in the SouthCom area of responsibility. That phrase is how you know this was copied and pasted out of a Defense Department statement–meaning in the Caribbean if you're wondering

He notes TdA is a designated foreign terrorist organization operating under the control of Maduro, the head of Venezuela de facto, as was not technically recognized by the U.S. government at the at the current moment at least from the U.S. perspective, and noted that all 11 people were killed in action.

No U.S. forces were harmed and noted that it was described as a warning to anybody thinking about bringing drugs to the United States. We have since gotten some follow-on comments from other folks in the administration. I have not seen a War Powers Report yet, which we would normally expect within 48 hours. I will check while we're recording to see if it's gone up in the last hour since the last time I checked, but I still haven't seen it.

But we have seen other statements that look a lot like they've been segments or address sort of similar issues, but one that really jumps out that I think is notable. Secretary Rubio said in follow on statements, we had originally thought about interdicting the ship. But the president opted not to send a message to Tren de Aragua and other smugglers, something that has various potential legal ramifications as a force was evidently not a last resort, but a first resort in this case.

Benjamin Wittes: And was intended not for defensive purposes, but to send a message.

Scott R. Anderson: Correct.

Benjamin Wittes: Alright, so there are about a thousand issues that are raised by this very brief account that Scott just gave us, and I wanna take them in order. But before we do, I wanna just set up the conversation with a few background legal points. Number one, is there any congressional authorization for the use of force against any non-state Caribbean based actor that imports drugs into the United States?

Rebecca Ingber: No, there is not.

Benjamin Wittes: Okay. Next question. Does designating something as a foreign terrorist organization convey the authority to use force against it?

Rebecca Ingber: No, it absolutely does not.

Scott R. Anderson: No. I would say the one link between this is that when you designate an FTO or an SDGT, you are making a finding that they threaten the security of U.S. nationals and national security. So there is that nexus 'cause you would make a similar finding if you're going to use force for self-defense purposes against it, probably a more significant finding, but correlating them one-to-one.

And certainly there's no statutory link between the two, between use of force and an FTO or SDGT designation, almost the opposite. It's very clearly something Congress did not anticipate in the regime.

Rebecca Ingber: And I just wanna jump in here because there's a lot of confusion about this and I think rightly because the word terrorism gets thrown around, but these are completely different standards, right? We have a standard, we have a legal standard for when we can use force in self-defense, for example. And there's a completely different legal standard for when we designate an FTO.

And there are lots of issues that might implicate national security or might even suggest that there's national security threat, but that does not have anything to, that might be relevant evidence toward the same evidence we might use for making for meeting one standard might be relevant to the other, but it is a very high bar for when we can use force and self-defense and some simply posing a threat or being a national security issue is not, does not meet it.

Benjamin Wittes: Okay, last setup question. Is there a word both in the law and in common English usage to describe killing people when it is not otherwise intentional killing of people when it is not otherwise authorized by law.

Rebecca Ingber: Yeah. I think we can safely call that murder.

Benjamin Wittes: Okay.

Scott R. Anderson: That is the law professor. I'll defer to her on that.

Benjamin Wittes: Yeah I'm just saying 'cause–

Rebecca Ingber: I assume that's where you're going.

Benjamin Wittes: That was, that was where I was going. I look at this and I say the stakes here are, if you are not in the land in which some, by some way, this is authorized by something other than the president wanting to do this. We have a word for that. The default here is not that this is some benign activity that maybe presidents can do some of the time.

Rebecca Ingber: Yeah, I think that's clear. I think we can get into this later, but I think there is some, there's some tension between the legal frameworks that the president wants to invoke as a matter of domestic law and the legal frameworks he probably wants to invoke as a matter of international law and domestic law work differently on that score.

There are many states that would argue that if something is not strictly prohibited as a matter of international law, they can undertake that action, but our domestic system does not work that way. The president needs affirmative authority in order to act, and he might be trying to claim wartime authorities as a matter of domestic law to give him some kind of, to somehow give some kind of political or even legal justification for his actions.

But as a matter of domestic law, he's not gonna want to claim that because then he takes on a whole lot of prohibitions that are quite clear and which this quite clearly violates.

Scott R. Anderson: Just to spell out a little bit more specifically on the murder point. There are obviously statutes barring murder in the United States and there are some very specific statutes, varying types of extraterritorial murder.

It's actually not categorical 'cause U.S. doesn't have jurisdiction over all things that happen overseas. But there are a variety of ones that several, which I think arguably could or do apply in this particular circumstance. The way the executive branch has argued in prior cases, and I think there is a persuasive case for this, is that most murder statutes are understood to incorporate an implicit exception for what's called public authorities, when a U.S. official acts consistent with their lawful authority, including in the context of armed conflicts that is not murder because it's under this public authorities exception that is express in kind of the core longstanding murder statute and implied in lots of other statutes that build on that.

That's the conclusion the Obama administration reached in its Office of Legal Counsel opinion regarding the targeted killing of Anwar al-Awlaki a decade and a half ago now. It's shocking that's that long ago in my mind. The thing that's complicated here is that analysis really hinge on the fact that public authority exception applied because al-Awlaki was a lawfully targetable individual under depending on how you read the opinion, 'cause it's a little fuzzy on this, either the Law of Armed Conflict or U.S. practice as informed by the Law of Armed Conflict.

And there's like a methodological, query as to which is the right frame of restaurant reference. But they both reached the same outcome in this case, which is that Anwar al-Awlaki was somebody who's clearly part of Al-Qaeda, a group that the Obama administration felt we were in armed conflict with and therefore it was targetable.

That's the conclusion the Trump administration wants us to draw here that apparently if they lawyer this properly, somebody drew within the administration. But it is a much harder case to make than it was in the al-Awlaki context for reasons we can get into.

Benjamin Wittes: Alright, so we're gonna get into all of that, but I wanna propose a very simple mental rubric for people to think about this, and it's intentionally simplistic.

And I would be interested in whether either of you think it's in addition to being simplistic, wrong, but the basic way I would suggest people think about this is the president has under certain limited circumstances like unarmed conflict, the right to kill people, the authority to kill people in the absence of a, some authorization, whether it's constitutional or statutory and compliance with the law of armed conflict, assuming that authorization exists, he doesn't have the authority to just go around blowing up boats, and we would call that murder, whether or not the murder is within the jurisdiction of the United States to contemplate.

Is that a fair, so if it's authorized, somehow he has the authority to do it, if not, you have to ask the question whether it's murder. Is that fair?

Scott R. Anderson: I think so. I think I'm tracking this sort of framework. Yes, I, the key thing to point to bear in mind though, is that these questions are interlaced and interwoven and are really complicated way because the president's authority to undertake a lot of these actions is premised on tacit congressional consent.

The president's argument as to why he has the authority to use force in a variety of circumstances isn't just 'cause he's, it's not strictly textual, it's just 'cause he is commander in chief. The executive branch has always argued it's 'cause of that. And by the way, for the last 200 years, we've taken actions like this and Congress hasn't objected and that has put a gloss is the historical gloss, is the phrase on the constitutional text and says, we can do this. But if this is the sort of thing that murder statutes have prohibited for a long time–

Benjamin Wittes: Then Congress hasn't ascend–

Scott R. Anderson: Then it's a di- more harder question is saying, is this something congress has consented to?

And the extraterritorial murder statutes are more recent of the 1990s. But then this raises the question does that mean Congress has prohibited this generally? I if not historically has it taken affirmative action that raises a separation of powers question saying, can Congress restrict this?

And it puts the executives authority to take this action in a much more skeptical zone. Does the Youngstown category for three for those keeping points at home. So it is really a much more complicated interwoven question here. It's not so easy as saying, is this a crime? Does the president have the authority to do this?

They're all related to each other, and this is operating on that seam between international law, criminal law, and constitutional law that we haven't really operated on before. It is really like the tip of the spear for these questions, and that's what makes it such a complicated case to dissect in my mind and why it raises so many very troubling questions.

Rebecca Ingber: I would just add to that, that I, we, this has not, we have not seen a lot of lawyering of this. It's actually doesn't happen all that often. And so the reason the al-Awlaki opinion, the OLC, opinion from the Obama administration is so important is because it's one of the very rare examples we have of the U.S. government laying there ultimately, and in a somewhat unclassified form for us, what the legal theory is.

And in that case, they had a lot of barriers to get through in order to justify and on and suggest that there was a legal justification for the president engaging in, in that case, a strike against someone who was a U.S. citizen operating in another country, who was in the U.S. government's view, a high level operative in an actual armed group who had sent operatives to the United States in an attempt to rate.

He was, this is the individual who's behind the the Christmas day or Christmas Eve underwear bomber. And so this is, these were high, this is a high level operative engaged in an, as a high level operator as part of an organized armed group in a conflict with the United States. And it was still a very tough question that many people think was wrongly decided.

And the way that the OLC lawyers got through that question is they had to address a number of statutory restrictions, constitutional restrictions on the Use of force to target and kill people abroad, in addition to the questions of whether or not the president had authority to do and the way they got around all of that, as Scott pointed out, but I would characterize it a little differently, is they basically assumed that there was this caveat this exception for, to all of these rules for targeted killings that were lawful under the laws of our, under the international laws of armed conflict. And so the idea was that there was this international law exception because international law recognized that states would engage in this context.

And so it's actually very important to know whether or not international law recognizes that states are going to and have historically engaged in this kind of killing abroad or killing on the high seas in order to understand the president's domestic authorities. And if there is no precedent for doing so, that is a very hard, hard justification to come up with.

Benjamin Wittes: Alright, so there's a lot here. Let's unpack some of it. First of all, on the question of authorization there's no doubt that there's no congressional author, there's no statutory authority, relevant statutory authorization for the use of force. That is, of course, different from in the al-Awlaki case where he was alleged to be a senior operational Al-Qaeda leader, where there was a or at least a senior leader of an associated force where there was a authorization.

So here in the absence of a congressional authorization, we're necessarily using a theory of inherent presidential power. Scott, for those who don't remember what is the standard for inherent presidential authority according to the longstanding position of the executive branch? What is–leaving aside whether that's the right standard or the wrong standard. Over time, administrations of both parties have taken a fairly aggressive view of what the inherent constitutional authority test is. What does it look like?

Scott R. Anderson: Sure. It's worth noting some 20th century presidents, 21st century presidents have argued for basically plenary authority on the part of the president, very close to it. That's the early George W. Bush administration, the Truman administration. But the contemporary view which is an articulation that dates back to the 2011 Libya OLC opinion. But the logic of which really goes back, at least to the Clinton administration, I have written and argued, it goes back all the way to the Eisenhower administration, basically says there's two, or depending on how you read it, three sort of prongs.

First, it's all contingent on insofar as Congress has not specifically restricted this par authority. So it acknowledges there's a possibility Congress might have some authority to restrict what the president can do in this space. The president can reasonably conclude that a, it serves sufficiently important national interests.

That is a fairly broad and fairly permissive and has been interpreted increasingly permissively over the years standard. Jack Goldsmith and Curtis Bradley very wrote a very useful piece on this maybe five or six years ago for Lawfare that's worth checking out on that they documented how that category has grown. It's not particularly restrictive.

Then B, the nature, scope, and duration of the anticipated hostility, including escalation, the risk of the response cannot rise to the level of a war for constitutional purposes that implicates the declare war clause. That is a term of art that basically is saying, look, the Constitution says Congress, not the president, has the authority to declare war that set some substantive limit.

This is a concession that Truman administration, the George W. Bush administration, did not make modern administrations, including the first Trump administration have made it. And they've said, but only if nature's scope and duration rises to that level where that level has never been clearly defined.

Various administrations or people in administrations have suggested the Korean War is the high watermark. William Renquist at one point said it suggested Vietnam in May 1970 would've passed the threshold. So something below that, but the usual understanding is that it entails a major, significant extended armed conflict involving substantial loss of U.S. life. Not something like this specifically, unless there's a serious risk of this escalating to that sort of level.

Notably, I would say there's a tweak and a wrinkle to this as well that came out in the first Trump administration, although it's based on logic that dates back at least to the Ford administration, arguably earlier, there is an idea that this framework aside, the president has some exclusive constitutional authority in certain circum-, circumstances of national self-defense, to take military force in a way that is not subject to declare war clause limitations and not subject to statutory restrictions, exclusive to the president.

That was referenced somewhat obliquely in the Soleimani 2020 Office of Legal Counsel Opinion. That's the closest formal acknowledgement I've seen of it since discussions around the Mayaguez incident in 1975, but it's in the background. If you talk to executive branch lawyers, it's always hanging out there and that's one caveat or exception that maybe could apply here. Although it's not clear to me, a hundred percent needs to from the Trump administration's perspective. Does that sound right to you, Rebecca? Anything I missed on that?

Rebecca Ingber: Yeah, I think the one piece that I think that's all right. And the one piece that I've always found interesting is that until recently, I think until the 2018 Syria OLC opinion, there had actually been a partisan divide in the way that different lcs were dealing with when the president could use, of course, unilaterally and Democrat lcs to call them that, although I think they would quibble with that, a description, used this not war in the constitutional sense and really fleshed it out, and it, and I think it started getting fleshed out.

I think it, I think you're right that it dates back to previous administrations, but I think the first fleshing out an attempt to constrain its use was in 1994, I believe, with Walter Dellinger opinion. And the, these administrations were trying to lay out when the, in, in a, in an, in the, I think in an attempt to constrain the president's use, which maybe they felt had gotten out of hand, right?

Say, okay, the president's only gonna use force in those instances that do not constitute war in the constitutional sense, and here's how we're gonna lay that out and we're gonna have all these multiple factors. And then over time, again, since 1994, I think that use has become expanded on the other side.

Republicans have tied their use, I think more to self-defense and those have sometimes been extremely expansive, such as the 2001 opinions that are still on the books as far as I know, suggesting that the president could do a lot in self-defense, including presumably launch a ground war.

But, ironically, in a sense that actually ties, I think more closely back to what the framers actually had in mind when they thought the president might use force unilaterally to quote unquote repel attacks on the homeland. And if we were to reimport or reinvigorate that concept that the president can only use force unilaterally in self-defense, that might help us a lot here because it might feel like it, it doesn't sit well with us to suggest that because this wasn't war in the constitutional sense, according to a long line of lcs, the president can do whatever he wants here, but rather if we were, if he were forced to tie it to self-defense, he would actually need to make a clearer claim to self-defense. And I don't think that there would be one here.

Benjamin Wittes: Under international law, there is no question that he has to make a self-defense argument, right? There's no, although it's, the boat isn't a flagged ship, it's not a creature of Venezuela, presumably under the law of armed conflict and other, probably under international human rights law, one state just can't go around blowing up ships, right?

Rebecca Ingber: That's a really, that's a much more complicated question. It feels like it shouldn't be. It does feel like it shouldn't be, doesn't it? This is a textbook case I think for why the longstanding U.S. position on international, on the jurisdictional scope of, and the extraterritorial scope of international human rights law is problematic because under the U.S. position, these treaties that we've signed onto that were party to that would prohibit extra judicial killing, for example, which this would be a prime example of do not.

And this is it's a little more complicated than this, but more or less do not apply extra territorially, right? That they are jurisdictionally bound and so they wouldn't under the U.S. longstanding position, those treaty norms wouldn't necessarily apply to this context.

Now Brian Finucane actually at Just Security very helpfully pointed out that the DOD operational law manual has noted that this kind of murder in these kinds of circumstances would actually be a prohibition under international, under customer international law. So that's quite helpful because even if these treaty terms don't necessarily apply extra territorially under the U.S. view.

Again, I say that because there are other states that would have a disagreement with us over this. We've got this customary international law norm that does apply. I will also say that it's not just the United States that holds that view.

There have been a, a number of judicial opinions of international tribunals that have not found that airstrikes, for example in another territory would fall within various human rights treaties. There's, it's complicated a little bit by this recent decision in Russia v. Ukraine, but I think even that decision would not necessarily apply here. And so the irony perhaps is that if this is a, if this is an a matter of the United States government attempting self def, making a self-defense argument against Venezuela or this hybrid state that they're claiming Venezuela is with these gangs that actually would have a clear international law framework and it would be unlawful because there was no armed attack.

And so this would not be a lawful exercise of self-defense in response to an armed attack. It would also be unlawful if the law governing the conduct of hostilities were to apply because these are not combatants that are targetable under the law of armed conflict.

And so the more the U.S. government tries to claim a wartime footing, the more they're actually implicating all of the international law that quite clearly even under their own longstanding precedents would apply. Scott wants to quibble with me.

Scott R. Anderson: Okay. I do. Oh, I don't quibble with that on the international human rights treaty. But I think there's an element of this from the jus ad bellum perspective that comes in and actually compensates in a weird way in the U.S. practice diagram 'cause United States also has a very low threshold for an armed attack is to the point that violence against its nationals, it's treated as an armed attack.

You look at Article 51 letters, as I understand it, feel free to correct me back. Article 51 letters related to example of the ISIS intervention in 2014 noted the threat to U.S. personnel and facilities in Iraq as a basis for invoking military involvement, military personnel military personnel.

Rebecca Ingber: Suppose that's right, it's more complicated when we're talking about civilians. So actually so yes a use of force under the U.S. view. The U.S. view has long been that a use of force, a 2(4) use of force right, would constitute armed attack. But there's still the question is this a 2(4) use of force, right? And that is a complicated question because an attack on civilians is not necess, does not necessarily implicate 2(4).

The more we claim that this is an attack on Venezuela, the easier that analysis becomes, the more it implicates 2(4). But for it to implicate that, and when I say 2(4), I'm talking about the UN Article two, Paragraph four prohibition on the use of force, the cod, the ultimate codification of the prohibition on the use of force. This is primarily a state to state prohibition, right? States can't use force against one another and states can't use force in their international relations against the territorial integrity of another states. So they can't use force on another state's territory. They can't use it against the political independence of another state.

So like killing their, the other state's leader for example, or in other ways, against the purposes of the United Nations.

Benjamin Wittes: So you think the best argument for the United States here would be nothing to do with war? It was just a boat, civilian boat, and we targeted because we wanted to send a message. Nothing to do with the with the state of Venezuela. Nothing to do with a hybrid state. Nothing to do with the law of armed conflict. We just blew it up because rah, that's actually the best international law.

Rebecca Ingber: I think that if I were advising, if I were advising the United States, I would say if you want these international tribunals who are up until this point, taken on good faith, that when states engage in airstrikes, they should not be governed by international humanitarian law.

If you wanna give them the best reason that they should intervene, this is it. The idea that we do not have effective control the U.S. military, they versus what is, the equivalent of a fishing vessel, right? That we did not have effective control over these circumstances sufficient that we could have done something differently is, farcical. And so I, I think we're, I think they are creating the textbook case for why international human rights law should apply to these circumstances.

Scott R. Anderson: Just, but one specific qualm about this specific case. Trump has waived this argument because, what did Trump say in his initial statement? This is Tren de Aragua acting at the direction of Nicolás Maduro.

Now you can ask whether where the exact line is between where, how far it actually extends between, is this the personnel of the state? Maybe 'cause they're not uniformed, maybe 'cause they're informal doesn't rise to that level. I, but I think that is a, i in this case, the president is operating in somewhat extent against his own interest potentially, if this was where the direction you wanted to rely on. He is invoking a self-defense argument in justifying this, I believe.

Rebecca Ingber: I agree with you. The more that the president tries to put this in more time framing, as I keep saying the more we're on a much clearer a much we're invoking much clearer prohibitions that the U.S. government has long accepted and that have always been part of international law.

And I, I will also say to that the problem there though, again so of course Venezuela has not necessarily accepted the narrative. And what if Venezuela were to consent? We've got these we've got states who are out there saying, suggesting that they welcome U.S. intervention, right? If a state consents that, that gets rid of our two four issue. And so we're still left with the possibility that, if we argue international human rights law does not apply. There is no law. I think that clearly cannot be the case, yeah.

Benjamin Wittes: So I wanna propose yet another possible avenue, which is to say, okay, yes it is. I guess this works better for domestic law purposes. But you say we're not gonna make a self-defense argument, but we're gonna make the argument that was, that closely parallels the constitutional law argument that Scott just laid out, which is, we've got Venezuela, the government, and in cooperation with these gangs that are infiltrating people and drugs into our shore, we're not gonna tolerate it anymore.

And by the way, they are unable or unwilling 'cause we like importing bullshit. Doctrines from other areas they're unable or unwilling to do anything about it. We've raised it with them a thousand times. And so any Venezuelan boat carrying drugs or people that illegally approaches our sure we're gonna treat as an international attack. I take it that argument works a little bit better as a domestic con law argument than as an international law argument.

Rebecca Ingber: So Scott is the, has canvased all the entire history of how the U.S. government has handled the constitutional argument. But I will say that it depends on what is the standard we're using.

If the standard we're using is not war in a constitutional sense, then on, at least for the authority piece, again, we're not talking about the murder statutes, but just for the authorities piece that might, that might be enough to get you there. But I would again, argue that all of our domestic authorities and to bring back in the federal statutes the way that, that the U.S. government has historically gotten around domestic law constraints on the use of force against individuals has been to argue that they are lawful as a matter of international law and as a matter of international law that just doesn't hold water, there has to be an actual armed attack or an imminent armed attack on the United States and an armed attack has to, has to mean something more than just we don't the fact that they're smuggling drugs into the country.

Benjamin Wittes: Alright, so Scott. Let's consider this from the point of view of lawyering within the administration. We've got a prohibitive international law problem. We've got a dicey domestic constitutional law problem, and we've got a variety of criminal statutes that may or may not apply depending on how you parse a bunch of things. How does this end up happening? SouthCom has a lot of lawyers.

Scott R. Anderson: Yes, indeed they do. The jus ad bellum part of this, my understanding in general, executive branch practice is going to be much more decided in the White House in consultation with lawyers, with executive branch lawyers. But DOD lawyers, people at SouthCom be more focused on the Use in bellow considerations, meaning about the actual conduct of the hostilities as opposed to the legitimacy of the hostilities, of themselves, the decision to resort to the use of force.

That's worth just bifurcating exactly what lawyers will be looking at this. And who would be thinking this over you. Look, I think your, the argument that they've made I don't know what's the best one, but it's certainly the argument they appear to be leaning towards, although I haven't seen, again, full formal confirmation you'd have to pull together from snippets we're seeing is that Tren de Aragua is engaged in hostilities with the United States.

It is at a minimum, a non-state armed group. Maybe it's even an outgrowth of the Venezuelan state that's, they're a little wishy-washy on, they're engaged in hostilities against the United States. The basis for these hostilities, and this is one of the big questions under national law, I think probably the biggest problem in all of this is that it is based on narcotics trafficking, illegal immigration, and some sporadic criminal violence.

But all that summed up together, the Trump administration is saying this amounts to hostilities with the United States. They’re a non-state armed group. And then these 11 individuals, they say they've positively identified as members of TdA. So because this is a non-state armed group engaged in hostilities with the United States, and these all are members of that group that makes them all individually targetable.

You could see other arguments as well, like maybe they would say this is an non-state armed group. And they are using, narcotics as a, commercially, a resource for supporting their activities. So we could target the narcotics and maybe a civilians were killed. It'd be collateral damage the same way we used to target the Islamic State operating oil facilities in parts of Syria. That's an alternative argument. I haven't seen them roll that out yet.

But it, I think stands out as a possibility because the first direct targeting the ability that all of these people are members of TdA, I think runs into some problems potentially, but the key argument that appears to be what they've queued up and they're saying, look, it's the same as if we were attacking members of al-Qaeda.

We've attacked members of al-Qaeda regularly. We can attack these people. The problem with that is, is there really hostilities between TdA and the United States? Is it a non-state armed group or the way we think about that's actually like kinda a another variable, although maybe it's you, there's a more colorable case to be made there.

And then how confident are we, these 11 individuals, were members supposed to make them targetable. If you are a civilian and doing civilian things, and that's all we really know about these guys, they're on a boat running drugs, that's a civilian thing, even if it is not a, even if it's criminal and maybe objectionable.

Is it that they were all known to be members like in the command chain of Tren de Aragua? They don't wear uniforms. Presumably they're not wearing uniforms or any sort of in, in insig-, insignia. Is it that they were taking commands? These are the kind of multi-variable factors that are usually used to determine membership in a non-state armed group.

It's a pretty diverse and loose set of analysis, but not many prongs of it. You see a lot of prongs of it that haven't clearly been shown here. Now there's more evidence the DOD has, of course, internally, maybe they're very confident. Oh, yeah all of these guys are full on in the command chain of Tren de Aragua whatever that looks like.

But it certainly raises that, certainly a question worth probing is saying how confident are we at this assessment that all 11 of these people were individually targetable?

Rebecca Ingber: Yeah. And I'd add to that though, that all of that case law that was developed over the last 25 years involving extending, quote unquote traditional law of armed conflict authorities to not to non-state actors was extremely controversial when it happened. But it was all happening in the context of a congressionally authorized armed conflict with this non-state actor that had attacked the homeland and killed thousands of people.

Benjamin Wittes: And in the context of ongoing operations, al-Awlaki was found to be rightly or wrongly, and I think rightly, continuously planning additional operations.

Rebecca Ingber: Yeah, I think that's a good addition.

Benjamin Wittes: Alright. I wanna add. So I was one of the few people publicly willing to defend the al-Awlaki strike and the reasoning behind it. And when that memo came out, which was brought out through litigation with the ACLU, on Lawfare was I think its principle intellectual defender.

I would never defend this. It seems to me the three basic preconditions that made the al-Awlaki strike defensible are none of them obviously present here. So the al-Awlaki memo was based on three facts, right? He's a senior operational leader of al-Qaeda, or an associated force in this case, associated force al-Qaeda in the Arabian Peninsula. His capture is not feasible and his targeting would otherwise be consistent with the law of armed conflict.

Here, they're not senior operational leaders of somebody against whom we've designated somebody that we've auth, Congress has authorized the use of force. Their capture by Rubio's own admission is imminently feasible. Rubio says we could have stopped it, but we decided to send a message. In other words, the point was not to prevent some imminent catastrophe. The point was messaging.

And number three, their targeting would be consistent with the laws of war. Only if see previous conversation, you can actually treat Tren de Aragua as a armed group that's engaged in hostilities against the United States. Scott, walk me through how, and I say this as somebody who like, I was fine with the al-Awlaki strike and I'm like, I'm really not fine with this. Walk me through how the al-Awlaki strike is supposed to get us around. What seems to me the obvious illegality of this?

Scott R. Anderson: I'm not sure it does. I'm not sure you gonna lean too heavily on that because it's actually not a great precedent for them on a few different fronts.

The one big difference is worth noting is that al-Awlaki was a U.S. citizen and to our knowledge, none of these individuals are U.S. citizens. So that brings into play a constitutional element of this. The OLC is very concerned in its analysis of the al-Awlaki operation, are we comporting with due process rights and other rights that al-Awlaki has by virtue being U.S. citizen and particularly the force as a last resort was part of that analysis.

There are also parts of the law of armed conflict that says you really should turn to force as a last resort or in the formulation of the United States, at least in the jus ad bellum context, you should explore reasonably available alternatives before just resorting to the use of force. They don't necessarily say it has to be a last resort, but regardless, it's still in play there.

But that was part of the reason that was such a big focus. So that part, at least the constitutional elements of it, not as squarely in play in this case, unless one of these people is an U.S. citizen, and I don't think we can entirely rule out that possibility. But without advanced knowledge of that, it doesn't necessarily query whether it raises the same questions and deliberately targeting a U.S. citizen with knowledge that person's a U.S. citizen.

I think arguably it doesn't, although I'm not, it's still obviously something you have to consider. The question about the applicability of and compliance with the law of armed conflict that really, at least in that analysis comes back to the public authority exception of those criminal statutes.

They were worried, I think, not just about criminal liability, but also about the implications of if we're doing something that Congress has expressly prohibited, can we really argue? Congress has tacitly consented to us doing this as part of our assessment of the president, having the authority under Article two to take these sorts of steps and they walk through a number of criminal statutes, one of which prohibits conspiracy to kill people or damage property overseas, one of which bars the killing of U.S. citizens overseas again, 'cause it's al-Awlaki.

A couple of other criminal provisions many of which are may apply here or do apply here. And there are a couple other ones that might apply here as well. I walked through them and says, hey, okay, all of these seem to incorporate this public authority exception that we well established in the murder context.

All of these are basically importing the murder statute and just adapting it to different circumstances and therefore it still applies to all of them. But in doing so, it really did look at, again, traditional U.S. practice as informed by the international law of armed conflict saying, can we say this person was a legitimate, lawful targetable, and that is how far the public authority exception went.

If that breaks down, I think it creates a big open question that even if we take the out lock logic on its face, assume that a court would agree with the executive branch on that assessment. I think it's a reasonably good analysis. Then that doesn't necessarily hold, in this case, if that law of armed conflict breaks down or if you're less confident in it, and I think you have to be a lot less confident in it because again, this concept of hostilities that the Trump administration is relying on that legal, immigration, narcotics trafficking, and sporadic criminal violence rises to level hostilities making this a non-state armed group with which we're in an armed conflict with that is a real stretch of even the very permissive standards United States has employed in the past. I think.

Rebecca Ingber: I think the, I agree, I think the standard is not necessarily the best precedent either way. I do think there is, there are precedents.

The use of force itself has not gotten, has not really been litigated on the merits. And it has not actually, there, there's not a lot of information we have about the U.S. positions. I think the best place to look maybe actually, and by analogy might if they're going to think about this as a law of armed conflict framework would be the Guantanamo detention cases.

And there again, we see the court grappling with trying to apply old law to novel circumstances. If we're talking, if we're talking about a non-state, state actor and whether or not there can be an armed conflict between them, that is the place to look for the, the U.S. grappling with that, and the courts leaned heavily on both.

The fact, and this goes back to Hamdi also in the Supreme Court, the courts leaned heavily on the fact that this was a congressionally authorized armed conflict in which there were ongoing hostilities that actually looked a lot like traditional armed conflicts. They, the court in Hamdi said that hostilities continue in Afghanistan and if they cease to do this understanding will unravel.

And so there's nothing that looks like that here. And so the suggestion that we should take what was already a stretch then but was accepted generally by Congress and the courts, because A, we had actually been attacked, and B, there were actual real hostilities ongoing that looked much more like traditional conflicts that we should take that stretch and then apply it to a context in which all we've got is basically pretext, right?

The president throwing around words. I don't think we should try to credit this. I don't think we suggest that there's any real legal argument here.

Benjamin Wittes: Alright, so I wanna come back to that question 'cause it raises an interesting litigation question. But before we do, I wanna talk about some of these murder statutes, Scott has mentioned a couple of them. I wanna mention another one, which is murder within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. 1111 which says simply whoever within the special maritime and territorial jurisdiction of the United States is guilty of murder in the first degree shall be punished, et cetera, whoever's guilty of murder in the second degree shall be punished.

The special maritime jurisdiction of the United States includes under 18 U.S.C. 7, any murder committed, any or any crime committed in a place where nobody else has jurisdiction by or against a U.S. citizen. And so my question, Scott, is why shouldn't I look at this and say, okay, maybe if Congress passes an authorization to use force against Tren de Aragua, that overrides 18 U.S.C. 1111 and the jurisdictional provisions and creates an al-Awlaki like exception.

But until then I look at this and I say, Congress has spoken on the question of whether you are allowed to blow up that boat in back of me. And it says, if you kill somebody blowing up that boat and it happens to be an American citizen, or you happen to be an American citizen you're guilty of murder. What am I missing here?

Scott R. Anderson: So the analysis here again, goes back to that public authority exception, at least if you follow the line of analysis in the al-Awlaki opinion. But I do think it's the most reasonable one here, which is that, look, if you were to follow this, then you would never have any armed conflict that would not be prosecutable for murder the United States could pursue in international waters.

Benjamin Wittes: And we have had, ex, except if you had an authorization to use force, and Congress says, okay, the Brookings Institution is such a dangerous institution that we're authorizing the use of force against it then. The president isn't covered by that statute at that point.

Scott R. Anderson: Perhaps the executive branch as and Becca probably knows this better than I do, as she was a little more, I was in college when a lot of this stuff was happening. But the–

Rebecca Ingber: Thanks Scott.

Scott Anderson: Sorry, just because I know you were, I knew, I know when you worked at State Department a few years ahead of me and I just missed it.

Rebecca Ingber: You're gonna go somewhere else with that. No. It's old.

Scott R. Anderson: Apologies. Becca's old gee. No. But–

Rebecca Ingber: Children, remember this just three years.

Scott R. Anderson: This book was a little more alive before I got into government. The argument that the Bush administration did make very early on that the a first they argued the presidentials and exclusive pre constitutional authority preempt a bunch of statutory restrictions. Then there were a bunch of efforts to ar, argue that the AUMF displaces a ton of statutory limits.

Those arguments were not entirely, but mostly losers. So that would not be the best argument. The Obama administration for that reason didn't rely on that. Now Locky case, they certainly could have, they could have said, and maybe it actually is in the big parts of the Al-Awlaki opinion that have been redacted and aren't public totally possible.

But they could have said, oh, we think the AUMF just superseded murder statutes. We don't have to worry about that. They chose not to. They thought that was at least not a winner in the parts of the argument they pursued. Instead they argued the alternative, which is useful when you're also contemplating potentially taking action under the Article Two authority.

And presidents have done that historically, international waters without statutory authorization in other cases not a ton of them, but it has come up in, a handful of cases. In this case, they look through the public authority exception, which you actually don't even need to implicitly read into one 11 like you do in the other murder statutes.

I should now al-Awlaki 'cause it says specifically murders, the unlawful killing of a human being. So that unlawful killing, they have interpreted and they've got reasonably good legislative history in court cases, supporting it as saying, Hey look, if you have somebody doing this for among other exception, a public authority reason, it does not reach that sort of reason.

And again, that public authority, the scope of that ties back to is this a lawful target under how the United States has traditionally fought wars, which is primarily. Informed by the law of armed conflict, although, you could see it, maybe there's a delta between those two in some cases.

Rebecca Ingber: But the AUMF is not irrelevant to that analysis. The, I the argument was this is a a lawful targeting under the law of armed conflict in a congressionally authorized armed conflict, which was important, especially in that case, given that it was a conflict with a non-state actor where there was a lot of, at the time, there was a lot of controversy over whether you could even have an armed conflict between a state and a non-state actor, extra territorially.

And I just wanna point out that, if you didn't have that aspect of it if the president were to target and kill, a member of another state's head of state head of state from another state, that would create certainly an armed conflict between the two states. But that wouldn't necessarily be enough to, to get us out of a, the public authority exception, if there is one to those murder statutes or the, for example, the EO on the assassination ban, right? The assassination ban was clearly intended to encompass those kinds of circumstances. And that was also the way, the way that all memorandum got around the EO prohibiting assassinations, the executive order right on the assassination ban was also through a public authority exception.

And so clearly it can't be enough that the president is acting through in an armed conflict. It also, there, there has to be something else more. And I think that in that case, in both in the OLC opinion and in the other very limited law that we have to go judicial opinions and other things that we have to go on, the fact that it's a congressionally authorized armed conflict and that hostilities are actually undergoing and that there's a factual analysis that's relevant to that is all part of the mix.

Benjamin Wittes: I think it has to be,

Scott R. Anderson: I don't think it actually is part of the public author's analysis. Maybe not expressly, it's certainly part of the overall opinion, but the whole idea of the public authority analysis is based on the unlawful killing language. So interpreting you have to say, is there legal authority for this?

Rebecca Ingber: What's an unlawful authority?

Scott R. Anderson: Yeah. But I don't think they would be, I don't think they were saying that the only lawful authority for this is statutory.

Benjamin Wittes: But I but I wanna suggest, and I wanna bring in the fifth circuit's opinion here in the Alien Enemies Act case from yesterday, because, so it's notionally a completely unrelated issue, right? The, but–

Rebecca Ingber: It's not actually, but it's ultimately a very similar question, which is a highly related issue.

Benjamin Wittes: When the Alien Enemies Act says an invasion or declared war, or predatory incursion, can you reconcile that language with whatever the piddly stuff that Tren de Aragua is up to, which is solidly in the criminal vein.

And it's, granted, it's awful, but it's not unarmed incursion, right? And for in, in exactly the same way you look at this and you say whatever this stuff is, it's not military engagement of that sort. And so what could get you over that hurdle? One thing is Congress saying we're authorizing force against it. Another thing could be an attack of the scale that you would say, okay. We're clearly in some military conflict now.

Rebecca Ingber: I guess I'm somewhere between you two, right? I'm saying it has to be both in a way. I, I don't think that, I don't think that an AUMF alone would necessarily get you over that hurdle, right?

You can imagine Congress authorizing a lot of things these days. I think that the public authority exception that Scott's talking about, I think he's absolutely right that the law of armed conflict that this was lawful under the law of armed conflict, was extremely relevant. It was in fact, the main point that the OLC memorandum is making.

I just mean that I think it was, that it was relevant to that analysis, that it was in the context of a congressionally authorized actual armed conflict, right? We could imagine a slippery slope where if we said it doesn't have to be congressionally authorized, as long as it's, as long as it's lawful under the laws of armed conflict.

We can imagine a scenario in which this president therefore says, okay, then I have domestic authority to start an armed conflict. We can imagine that being a dangerous slippery slope that we wouldn't have necessarily had to grapple with under prior presidencies.

Benjamin Wittes: Alright, before we close, I wanna ask the question that I think is on a lot of listeners' minds right now, which is this a law school hypothetical or is this a question that there is actually any mechanism to adjudicate Normally the mechanism that you would use to adjudicate something like this would be either a wrongful death suit.

There's probably a jurisdictional barrier to that. See the Al-Awlaki case, you could also imagine a subsequent administration trying to prosecute this and dealing with it that way. The president, of course, would be immune, but the secretary of defense would not, and anybody down the chain would not.

So number one, Scott. First do you see any mechanism by which this comes to be adjudicated in any useful fashion? And number two, if not, is there any reason to discuss it? Other than that, it's interesting and appalling, like what's the value of the conversation?

Scott R. Anderson: I think it is unlikely to become the subject of litigation, nmot entirely impossible, but unlikely. Look, in theory, we have seen civil claims be brought about U.S. military action overseas. Remember, there is a longstanding decade long litigation that found its way all the way to the D.C. circuit about the attacks against a medical facility in Sudan by the Clinton administration on the basis that was manufacturing biological weapons and a claim for damages arising out of that.

That's possible in this case, and I will say, I think in this case, the usual barrier to adjudication most of these cases is because courts are. Hesitant to touch any of this with a 10 foot pole, in part because there is not a clear conflict between the political branches. That is the line we see in courts, say over and over again since the Vietnam era.

And even some cases arguably before that. But the logic basically being, look, if there's no clear conflict between the political branches, we're not really gonna get in a fight over this here. There is a little bit more of a conflict. There is in some of these cases because there is this tension with the murder statutes.

Again, that is a real separation of power's problem for the administration. In contemplating this, if you can draw a clear conflict between these statutes and what the administration has done, it both raises questions about the president's substan substantive authority, and it also puts itself in this category of a clear conflict of the political branches.

That is the circumstances where even this court, or at least an earlier version of the Roberts Court in 2012 said, yeah, that's the exact sort of circumstances where the Supreme Court has an obligation to intervene. Prior, other judges, prior courts may have viewed that as a political question, doctrine sort of thing.

This court pretty clearly said that sort of thing isn't a political question doctrine, at least that's how I read that opinion. Some people read it a little more narrowly, so in those sorts of circumstances, I think there's some chance of that, but it doesn't need to go to court for this to matter. We evaluate as voters as citizens as people who speak to Congress, who can take more affirmative action on these things. We evaluate the president's actions. We weigh it and say, do we think this is lawful? Do we think this is colorable lawful, or incredibly lawful?

And in this case, I think there's value to saying, hey, there's actually some real questions raised by this. It's important both for informing Congress, important for informing us and our views of the administration potential future action by Congress and for the legacy of this sort of action in terms of potentially expanding the scope of presidential action moving forward. Presidential authority in this area is a little bit of a one-way ratchet.

Once it does something, it creates a precedent, future precedents may rely on. And the way you can chip away with that is really criticizing it and being very public about the problems with it. And so I do think there's value to that and reasons to keep talking about it doesn't mean the president's gonna be stopped in this one case or be held to account in this one case, very unlikely. May it make it less likely that this will become the model for a broader campaign as the president has strongly implied?

I think it might probably marginal, but I think it might make some impact in that regard because it suggests there's heightened legal risk and heightened associated political risk. And that's why people pay people like Becca and me and you, Ben, the big bucks that we make to keep having these same arguments over and over again. Not me. This argument's a little, I'm not licensed than most practice.

Benjamin Wittes: Beck, what do you think? Is there any mechanism by which this gets adjudicated?

Rebecca Ingber: Yeah, I, so I agree entirely with Scott here. I as an international lawyer primarily, although do a fair amount of constitutional war powers from time to time, I am regularly facing the the argument that many make that international law is not really law. That if there's no clear enforcement mechanism, it doesn't matter, et cetera.

And I tend to be of the unpopular view in these circles that criminal law itself is rarely the best way to think about how public law gets enforced or how it should be enforced. I think historically it has not been, it has never been the basis on which public actors care about or abide by law. I think that's true as a matter of domestic law.

I think that's also true as a matter of international law. And in fact, I think the fact that criminal law has. In many people's views failed them. It failed to address the political problems that were the Donald Trump presidency. It failed to address international problems when the ICC has not been able to actually hold people accountable.

That has led, I think to, to nihilism on the part of many in the public about what inter, what law, what international, what public law really means. It doesn't actually mean anything if we can't hold people account through criminal processes that we're used to from watching tv. And the reality is that public law does not tend to play out primarily in the courts.

There's an interactive dance between all sorts of actors if it's international law, between states and various fora in which they operate. If it's domestic public law, it's between Congress and the president and the courts and the public, the voting public. And so I think Scott's exactly right on this, that the voting public.

Whether they either care or they don't care. PE So there is no overarching enforcement mechanism for domestic public law, just like there isn't for international law. And that's suddenly becoming abundantly clear to people. But it will matter. There's a reason that people continue to have these conversations.

There's a reason to, if anyone is watching right now, there's a reason you're watching, right? You, there's a reason you care about what the law says. People tend to talk about law because they believe there is some value to having a neutral set of principles under which we're operating. And it's not just about whether I like this guy or not.

This is my president. This is the guy I voted for. So what he says goes, they want to be able to talk in neutral principles. There's a reason people care about law and. The public law system requires faith. It requires buy-in from the public. If people care about law, about whether or not the president is abiding by law by these neutral principles that we've established before this particular action, and before this president was in office, then it will continue to matter.

And if everyone stops caring about it, then they're right? The nihilists will win. It will. It will cease to matter.

Benjamin Wittes: I just wanna pause it. The mechanism by which I think this is likely to become adjudicate relatively quickly, which is that the likelihood that one of 11 people on that boat was an American citizen is pretty high judging from the way that gangs operate in the United States.

And I think we're gonna find the more we find out about that boat by the way, when you're crowding a lot of drugs into a boat, you don't carry a crew of 11. You carry a crew small enough so that you can fit more drugs on a boat. We're gonna learn a lot more about that boat and none of it is gonna be consistent with the story that we heard on the first day.

And somebody is going to have a case that is going to turn out to be litigable. That is my guess. We're gonna leave it there. Rebecca Ingber, it is great to see you. It's been too long. Come back early and often to the Lawfare Podcast. Scott R. Anderson. Thank you both for joining us today.

Rebecca Ingber: Thanks, Ben.

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