Armed Conflict? Trump’s Venezuela Boat Strikes Test U.S. Law

Matthew C. Waxman is an adjunct senior fellow for law and foreign policy at the Council on Foreign Relations. 

The U.S. military has struck at least five vessels that allegedly originated from Venezuela since the start of September, killing twenty-seven people. President Donald Trump and his administration have asserted that these boats were carrying narcotics and were operated by Venezuelan cartels, like Tren de Aragua, which it designated a foreign terrorist organization (FTO) earlier this year. The White House has framed the operations as acts of national self-defense against “narco-terrorism” in the Caribbean Sea.

Trump has declared that the United States is now engaged in an “armed conflict” with drug cartels and has suggested further escalation. He has since signaled that his administration is preparing military options to target drug traffickers inside Venezuelan territory, saying on September 30 that the United States would “look very seriously at cartels coming by land.” A White House notice sent to Congress in early October also reportedly referred to suspected drug smugglers as “unlawful combatants.”

These moves could mark a major shift in U.S. counternarcotics policy and raise legal and diplomatic questions by blurring the lines between law enforcement, interdiction, and war. 

A new U.S. ‘armed conflict’—and past precedent

Trump reportedly determined and notified Congress that the U.S. government is involved in an “armed conflict”—i.e. a legal state of war— with drug cartels, marking the latest in an escalating series of legal moves by the administration. It previously designated some cartels as FTOs, unlocking certain criminal law, immigration, and sanctions authorities. It has invoked a 1798 law authorizing the swift removal from the United States of “enemy aliens,” and applied it to suspected Tren de Aragua members. It has used lethal force against alleged Tren de Aragua drug vessels in the Caribbean, claiming national self-defense. 

One of the most significant implications of this declaration is that it purports to justify using lethal force against some unspecified categories of cartel members, essentially treating them as enemy soldiers. Because the Trump administration has provided so little information about the strikes and their legal justifications, however, it’s unclear  how far the White House is stretching this theory.

The closest analogy is the ongoing armed conflict against al-Qaeda and its affiliates, which is a more legally precise term for the “Global War on Terror.” That’s been the legal basis, across five presidential administrations now, for lethal force and detention of al-Qaeda fighters. The Trump administration seems to be applying that same template, but this time against drug cartels instead of a transnational terrorist group. 

But that’s a dangerous stretch. Al-Qaeda had declared war on the United States and attacked U.S. warships, embassies, military headquarters, and financial capital, killing thousands of Americans with the equivalent of missiles. If a state had carried out those attacks, no one would dispute that we were in a war. 

Major international cartels are brutally violent and drug trafficking is an enormously destructive problem in the United States, so the Trump administration is right to combat them aggressively. The administration may also believe, with reason, that international drug trafficking is a grave threat to the safety of Americans, and perhaps there are important roles for American military forces in dealing with it. But, to date, the administration hasn’t persuasively made the legal case that drug cartels are waging war against us like al-Qaeda was, nor is it clear whether the White House acknowledges any limits to its theory—one that unlocks the most extreme legal powers a state can wield. Part of the problem is that the Trump administration has been so opaque about its legal basis and about the facts surrounding its recent strikes. That’s a mistake that exacerbates the legal problems. 

Domestic and international legal questions

The scope of the president’s constitutional power to use force is fiercely contested. The war against al-Qaeda and its allies, such as the Taliban, was authorized by Congress in a 2001 resolution that remains on the books. There’s been no such congressional authorization for the Trump administration’s lethal strikes in the Caribbean. 

Many legal experts would argue that the president lacks authority without congressional approval, because the Constitution gives Congress the power to declare war. Congress remains the most important check on the president, and we see some pushback by lawmakers against the Trump administration on this score, but they have so far shown very little willingness to play that role in Trump’s second term. Presidents of both political parties have customarily used force unilaterally, and the White House could argue that the actions to date fall within that customary presidential practice. 

Perhaps Trump will go to Congress for authorization. But that would only address the domestic law issues, not the international law problems—which could compound quickly if the president ramps up U.S. operations.

So far, the Trump administration has used lethal force against drug vessels at sea, but it has also suggested that it might do so in the territory of other states, like Venezuela or Mexico. That would be a major escalation, and it raises additional legal issues because the UN Charter prohibits the use of force against the territorial integrity of UN member states. Unless those states consent, which is unlikely, the administration would probably claim that it was justified because they were unwilling or unable to neutralize the threat against the United States. That would be a radical extension of past precedents, and I believe a misguided one. 

There’s no central enforcement body for international law, so we’ll see what kind of pushback the administration’s approach provokes, especially from partners and allies. International law plays an important role in facilitating cooperation among states—ultimately that cooperation is important to stemming the drug trade and to promoting the broad array of U.S. interests in the Western Hemisphere. That’s true for American hard power as much as other forms of power. 

This work represents the views and opinions solely of the author. The Council on Foreign Relations is an independent, nonpartisan membership organization, think tank, and publisher, and takes no institutional positions on matters of policy.