The Situation: Murder She Wrote

The Situation on Wednesday asked what a government shutdown has to accomplish in order for it to be considered worth the pain it will inflict.

Today I want to reflect on the notice sent to Congress this week that the United States is in an armed conflict with various Venezuelan gangs.

Over at Just Security, Marty Lederman has this very earnest explication of the grave deficiencies in the American position. He also usefully publishes the notice itself, which reads as follows:

This information is submitted consistent with Section 1230 of the Fiscal Year 2024 National Defense Authorization Act (50 U.S.C. § 1543a).

For decades the response to the flow of illicit narcotics into the United States has primarily relied on the use of law enforcement authorities. These efforts have been unsuccessful in stemming the tide of these ever increasingly addictive and lethal drugs. The cartels involved have grown more armed, well organized, and violent. They have the financial means, sophistication, and paramilitary capabilities needed to operate with impunity.

They illegally and directly cause the deaths of tens of thousands of American citizens each year. Although friendly foreign nations have made significant efforts to combat these organizations, suffering significant losses of life, these groups are now transnational and conduct ongoing attacks throughout the Western Hemisphere as organized cartels. Therefore, the President determined these cartels are non-state armed groups, designated them as terrorist organizations, and determined that their actions constitute an armed attack against the United States.

In response, based upon the cumulative effects of these hostile acts against the citizens and interests of United States and friendly foreign nations, the President determined that the United States is in a non-international armed conflict with these designated terrorist organizations. The President directed the Department of War to conduct operations against them pursuant to the law of armed conflict. The United States has now reached a critical point where we must use force in self-defense and defense of others against the ongoing attacks by these designated terrorist organizations.

Accordingly, at the President’s direction, and in compliance with the law of armed conflict, on September 15, 2025, U.S. forces struck an unflagged vessel at a location beyond the territorial seas of any nation. The vessel was assessed by the U.S. intelligence community to be affiliated with a designated terrorist organization and, at the time, engaged in trafficking illicit drugs, which could ultimately be used to kill Americans. This strike resulted in the destruction of the vessel, the illicit narcotics, and the death of approximately 3 unlawful combatants.

Although this strike was limited in scope, U.S. forces remain postured to carry out military operations as necessary to prevent further deaths or injury to American citizens by eliminating the threat posed by these designated terrorist organizations.TKThe President directed these actions consistent with his responsibility to protect Americans and United States interests abroad and in furtherance of United States national security and foreign policy interests, pursuant to his constitutional authority as Commander in Chief and Chief Executive to conduct foreign relations. The Department of War appreciates the support of the Congress in this action.

I have little of substance to add to Lederman’s explanation of the legal nonsense of this notice, which boils down to two basic points: first, that the United States is manifestly not in an armed conflict with Venezuelan gangs; and second, that even if it were, there is no plausible domestic law authority for these types of strikes on an ongoing basis against targets that are not attacking the U.S. or its forces.

What Lederman leaves implicit, and I wish to emphasize, is that there is a word for killings outside of armed conflict for which there is no domestic legal authority. That word is murder.

A mob boss can declare a blood feud with a rival mob boss to be a “war,” but that doesn’t make the killings that take place under its auspices anything other than simple murder. Similarly, the Department of Defense can call itself the Department of War and declare that it is in an “armed conflict” with any number of Venezuelan gangs that are not, in fact, engaging in armed conflict against the United States, but that doesn’t make the pilots of alleged drug trafficking boats into “unlawful combatants.” And it doesn’t make targeting them with lethal force anything more elevated than murder. 

When I say murder here, I am not speaking in hyperbole or using the term in some colloquial sense. Consider the statement by the “Department of War” that:

U.S. forces struck an unflagged vessel at a location beyond the territorial seas of any nation. The vessel was assessed by the U.S. intelligence community to be affiliated with a designated terrorist organization and, at the time, engaged in trafficking illicit drugs, which could ultimately be used to kill Americans. This strike resulted in the destruction of the vessel, the illicit narcotics, and the death of approximately 3 unlawful combatants. 

Consider it specifically in relation to 18 U.S.C § 1111, which forbids murder within the “special maritime and territorial jurisdiction of the United States” and defines murder as “the unlawful killing of a human being with malice aforethought.” The term “special maritime and territorial jurisdiction of the United States” is defined in 18 U.S.C. § 7 to include both the high seas and “Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.”

Note two key choices of words here. The first is “the unlawful killing.” A killing that is authorized by Congress in the context of some authorization for the use of force and that otherwise complies with the laws of armed conflict is not an unlawful killing. It is, rather, legally authorized. That and the combat immunity that attaches to them under international law is what protects service personnel from running afoul of murder laws when they wield lethal force. But if the administration advances a completely farcical theory of domestic legal authorization for strikes and rests its international law argument on an armed conflict that so clearly does not exist, it quite plainly—at least in my view—denies itself the protection that the word “unlawful” was intended to offer. 

The second key phrase is: “an offense by or against a national of the United States” in the definition of the special maritime and territorial jurisdiction of the United States. Note that by its terms it covers not only killings of Americans by killings by Americans. 

Put these two phrases together and you get, it seems to me, a clear murder statute in federal law that forbids unlawful killings by Americans in boats “beyond the territorial seas of any nation.” The Department of Defense statement makes clear this strike was conducted by “U.S. forces” and that it was conducted with malice aforethought—specifically because, “The vessel was assessed by the U.S. intelligence community to be affiliated with a designated terrorist organization and, at the time, engaged in trafficking illicit drugs, which could ultimately be used to kill Americans.”

I simply cannot see how these strikes are not criminal acts under U.S. law. 

A harder question, in my view, is who might actually be held accountable for these murders. President Trump, after all, is immune from prosecution under the Supreme Court’s doctrine for giving an order—even a frankly lawless order—to the military. Justice Sonya Sotomayor warned in her dissent in the immunity opinion specifically about presidential orders to use the military to murder people, and the Supreme Court majority patted her on the head and told her to stop fretting. The context was a bit different, not materially so. She was right. Chief Justice Roberts was wrong, and it hasn’t taken long for time to make the point clear. So Trump is never going to have to answer for these barbarities.

At the other end of the hierarchy, the individual service personnel who are conducting these strikes have been presumably assured of their legality by counsel in whom they have legitimate reason to repose confidence and would thus have a plausible defense that they had acted on advice of counsel. 

Between the top and the bottom of the pyramid, however, are layers and folks, including the secretary of defense, who are authorizing these strikes and must be aware that serious legal questions exist as to their legality.

Are none of them screaming from the rooftops—or at least writing memos—that these strikes are murderous? Or are their screams just being ignored amidst the Department of War’s new “warrior ethos”?

The Situation continues tomorrow.