The Legality of Trump's Drug-Boat Strikes, With Matthew Waxman

LINDSAY:
Just miles off the coast of Venezuela, a speedboat headed toward Trinidad and Tobago suddenly goes up in flames. It's been bombed by the U.S. military. All eleven people on board are killed.

Donald TRUMP:
We just, over the last few minutes, literally shot out a boat, a drug carrying boat, lot of drugs in that boat.

LINDSAY:
The Trump Administration says that the boat was carrying drugs bound for the United States. Since this first strike on September 2nd, the United States military has conducted airstrikes against three more boats originating from Venezuela, destroying the boats and killing at least six more people. More than two thousand pounds of cocaine was found in the wreckage of one of the boats. President Trump says that the doctrine of national self-defense justifies using the military against drug smugglers. The government of Venezuela has denied responsibility for the boats, accused the United States of waging and undeclared war on the country and threatened to retaliate.

Natasha BERTRAND:
As you can see, this kind of kinetic action has not stopped, and there are a ton of questions surrounding the legality of that. Particularly—

LINDSAY:
Many legal experts question the legality of the Trump Administration's decision to treat narcotic trafficking as a matter for military action rather than for law enforcement. Some critics go as far as to argue the Trump Administration is engaged in extrajudicial executions.
From the Council on Foreign Relations, welcome to The President's Inbox. I'm Jim Lindsay, and today I'm speaking with Matt Waxman, adjunct senior fellow for Law and Foreign Policy at CFR, and a professor of law at Columbia University. We're going to discuss the legality of the Trump Administration's military strikes against drug traffickers and their implications for American foreign policy. Matt, thank you for joining me.

WAXMAN:
Thanks for having me back, Jim.

LINDSAY:
Matt, I should note that the legality of military operations is not an academic question for you. You held senior positions at the State Department, Department of Defense, and National Security Council during the George W. Bush administration. You have substantial hands-on experience grappling with what the United States military is and isn't allowed to do, particularly in the context of what we once called the Global War on Terror. Let me begin, Matt, by just asking you a broad-brush question. Is it fair to say that there is a debate in U.S. legal circles over the legality of the policy of conducting lethal military operations against suspected drug traffickers?

WAXMAN:
Yes, absolutely. And I would just say right now the overwhelming body of opinion within the United States and internationally is against the Trump Administration, saying that there is not a lawful basis for this. We can talk about some of the strengths and weaknesses of what I take to be the Trump Administration's arguments here, and I say what we take be because the Trump Administration has been remarkably silent or untransparent about the legal basis for its strikes and even some of the factual bases for the particular strikes that it's taken against Tren de Aragua.

LINDSAY:
Tren de Aragua being the drug trafficking group that's believed to have sent these fast boats from Venezuela.

WAXMAN:
That's right. We're talking about a ruthlessly violent transnational gang that was spawned in Venezuela, now has quite a regional reach, including into the United States. It's engaged in narcotics trafficking, but also trafficking in human beings and arms. The Trump Administration has talked about it, has characterized it as an arm of the Maduro regime in Venezuela, but the intelligence community doesn't back that up. And the Trump Administration has really taken three interrelated or connected legal moves with regard to Tren de Aragua. One is, it has labeled it a so-called foreign terrorist organization, that's a legal designation that carries some financial immigration and criminal law implications. It has invoked something called the Alien Enemies Act, which dates back to 1798 and has—

LINDSAY:
The Quasi-War with France.

WAXMAN:
Quasi-War with France. Exactly. This dates back to really the first decade of the United States, and it has some quite strong immigration authorities. And third, the Trump Administration has used lethal force based on an apparent claim of self-defense, essentially taking the position that the United States is in an ongoing armed conflict or war with Tren de Aragua.

LINDSAY:
Okay. Well, let's lay out what the case is to the extent you understand it, Matt, that the Trump Administration has made for this switch from treating drug trafficking as a law enforcement criminal matter to a military matter.

WAXMAN:
Right. I think we can begin with a baseline proposition as a matter of international law and domestic law that the United States government can't go around the world killing people, even the most odious ones, without some lawful basis. And traditionally, or normally the United States government would go after narcotics trafficking, even the most violent narcotics trafficking with a combination of interdiction outside of U.S. borders and the use of criminal law within the United States borders as well as an extension extra territorially of American criminal law. The question is, what is a lawful basis for overcoming this baseline idea that the government can't kill people? The Trump Administration seems to be arguing that it is engaged in self-defensive actions against a narco terrorist organization that has made war against the United States, that Tren de Aragua is an enemy force against which the United States can use lethal force like it would use lethal force against an enemy army that was attacking the United States.

LINDSAY:
How does that claim square against what existing law is? And perhaps here, Matt, I should ask you to differentiate among the kinds of law that might apply. There are people talking about international law, American domestic criminal law, people talking about the inherent powers of the presidency under Article II. Help me understand these various ways of thinking about the legality of these acts.

WAXMAN:
Sure. I think it does make sense to break this down into categories, and I think for me, I think the three big categories would be constitutional law. What is the constitutional basis for the president to use military force against a threat to United States? Second is domestic law, in particular I'm thinking here, domestic law against murder. In this case, you would say if there is no lawful basis for the government to engage in killing of an individual civilian that would normally constitute murder, what is the basis for overcoming that? And third—

LINDSAY:
But there's also the potential for statutory law that authorizes the president to act.

WAXMAN:
Correct. Correct. And here I think unlike the so-called global war on terror, or I think more precisely, the continuing war against Al-Qaeda, congress has not passed a so-called authorization for the use of military force, an AUMF, which is something Congress did do after 9/11 with regard to Al-Qaeda and its allies. It has not done that with regard to drug traffickers or Tren de Aragua in particular. And then the last category would be international law, including the law of armed conflict or sometimes referred to as the laws of war. And I guess we could take each of those in turn.

LINDSAY:
Well, why don't we do that? You're the expert on these categories, so walk us through them.

WAXMAN:
Sure. And I would say that the two categories of constitutional law and statutory law are really interconnected because normally we would say that if the president had some lawful basis, for example, was engaged in waging a war, that would be a lawful basis for killing individuals. Now, it has been alleged that this is an unconstitutional war, that the president doesn't have the inherent constitutional power to use military force, absent congressional declaration of war or a force authorization. To that I would say actually there's quite a lot of precedent from modern presidents of both parties for the unilateral use of military force. Presidents of both parties, especially in the modern era, claim very broad power under Article II of the Constitution that says the president is the chief executive and commander in chief to use military force. President Biden used military force without congressional authorization against the Houthis based in Yemen. President Trump in the first administration used force against Syria. President Obama used force against Libya.
There's quite a lot of modern practice into which this could fall. Presidents do use a lot of force unilaterally. Now, is that the correct interpretation of the constitution? It depends a bit on one's theory of constitutional interpretation. An originalist, somebody who believes that the constitution should be interpreted according to the original meaning in 1789. I think an originalist would say that this violates Congress's prerogative to decide whether or not the United States engages in a war. Congress has the power to declare war under Article I of the Constitution. But another approach to constitutional interpretation would say we look at historical patterns of behavior among the branches of government. And that's why I say this really does fall, I think, within a traditional practice, especially of modern presidents, to use force unilaterally.

LINDSAY:
So this is the idea that practice can put a gloss on the Constitution.

WAXMAN:
That's exactly right. And in this case, I actually think that practice goes back really to quite early in the history of the Republic, but over time, presidents... There's been an accretion of practice to use greater and greater amounts magnitude of military force without congressional authorization.

LINDSAY:
Let's now talk about how international law might apply.

WAXMAN:
I would say that this is at best a very far stretch of international law and a dangerous one. No doubt, Tren de Aragua is a brutal and dangerous criminal organization, but I don't think one could go so far as to say that it is engaged in a war against the United States. Here I would compare it to the global war against Al-Qaeda, something that I have defended as a matter of both domestic law and international law. But when it comes to Al-Qaeda, we're talking about an organization that over a long period of time waged violence directly against the United States at a level of magnitude and sophistication previously really only achievable by states. Not only had Al-Qaeda declared war against the United States, but it had attacked American warships, embassies, the military headquarters, the financial capital really of the United States and the world.

LINDSAY:
As the military would like to say, they were engaged in kinetic actions.

WAXMAN:
That's right.

LINDSAY:
Something that's not true of the case here with drug smugglers.

WAXMAN:
Right, certainly not directly against the United States. Here we're talking about an organization whose primary ambition is to make money and to do so in some brutally violent ways, in some cases, especially against American and foreign citizens. And no doubt it is causing great harm to Americans through the drug trade, human smuggling and so on. This has really tragic effects throughout the United States. We are talking about a drug trade that's a great scourge and one that's extremely damaging to Americans, but I don't think it rises to the kind of violence that under international law would give rise to a right of armed self-defense on the part of the United States. And even if it did, under the law of armed conflict, the United States would be entitled in a war to target only military targets, military personnel. And there's really very little that we know about who was targeted in these strikes. The administration has said very little, and I have to say the administration also has a real credibility deficit here. And so I think it's incumbent on White House—

LINDSAY:
Credibility deficit in what sense, Matt?

WAXMAN:
Credibility deficit in two senses. One with regard to the facts. I mean, I think this is an administration that has shown itself willing to contradict facts ranging from labor statistics to crime rates in American cities and so on. I think it plays fast and loose with the facts. It also lacks credibility in the sense that on the one hand, it has said that these strikes are lawful, but without really providing any justification. But also then rhetorically being almost contemptuous, maybe actually contemptuous of the law. When Vice President Vance was asked about the legality of these strikes, he responded with an expletive I won't repeat here—

LINDSAY:
Thank you.

WAXMAN:
... but essentially saying... We don't want to need to bleep me out, but essentially saying law doesn't matter here. I think it's a dangerous form of chest thumping.

LINDSAY:
Why do you think it's a dangerous form of chest thumping? And I ask, Matt, because the vice president is a graduate of Yale Law School, as you are, so he has studied the law. Help me understand why you think what he has said is dangerous.

WAXMAN:
I think it's dangerous for three main reasons. One, we're a rule of law republic, and that goes back to the founding. I think it's a core part of who we are. And by the way, I would say it's an especially core part of who we are if one takes conservatism very seriously. Second, I think the United States has an interest in strengthening, not weakening the basic rules on the use of military force. I'm not a romantic idealist who thinks the United States always needs to take a very restrictive view on the use of force. I don't think American compliance with international law always means that other states do, but we do have an interest in promoting limits to when states can use military force.
And third, I think by flouting international law or dismissing it through boasting that the administration doesn't care, I think the United States is undermining some of its strategic interests, both in the short and long term. I think that approach tends to undermine cooperation with partners and allies. And even if one just thinks about American interests in the western hemisphere, I think to take this dismissive approach to international law is a real opening for our main competitor, China, to make some diplomatic inroads by painting itself as a reliable partner and painting the United States as the predatory one.

LINDSAY:
Chinese foreign ministry has made a lot of this, again, portraying China as believing in international law, wanting to work with others and trying to portray the United States as a predatory actor. And I will note that these attacks against the fast boats coming out of Venezuela have gone down very poorly across most of Latin America.

WAXMAN:
Well, that's right. And there's a long history of United States hegemony—

LINDSAY:
Yankee imperialism.

WAXMAN:
That's right, and imperialism. And I'm somebody who believes very strongly in hard power, but we need to be very thoughtful I think in how we wield that hard power. And a lot of our interests in the United States are going to be served with soft power. That means developing and tightening partnerships with our allies in the region.

LINDSAY:
Matt, I want to go back to the Trump Administration's legal justification, or at least what we think the legal justification is. How much of that justification depends upon certain assumptions about the nature of what the drug traffickers are doing? I mean, for example, does it depend upon having evidence that they're coming directly to the United States? I don't know that anyone knows where these fast boats are headed. It's like twelve hundred miles from the Venezuelan coast to the Florida Keys. You are unlikely to make that distance in a fast boat. Would the United States under Trump's theory of the case still have a legal right to act if they were headed to Trinidad and Tobago, Jamaica, anywhere else in the Caribbean?

WAXMAN:
Well, that's why I think the Trump Administration is not just arguing, or let me give what I think would be the best argument. I still think it's a weak one, but I think it would be the best one is to say it doesn't need to show that every particular vessel that it goes after, every particular drug trafficker is headed directly into the United States. But rather to make the case that Tren de Aragua's drug trafficking as a whole and trafficking into the United States constitutes a sort of invasion, a direct attack on the United States. And if you were to take that view that this is essentially an enemy military enterprise engaging in an activity tantamount to a direct military attack, then the United States would be entitled to fight back, including a waging armed conflict against those, to use a Bush administration term from the global war on terror, enemy combatants.
And I think that may be what the Trump Administration is arguing here. It's done the same type of, it's made the same of argument as I mentioned before, in another context, which is invoking the 1798 Alien Enemies Act, which as the name suggests, was built, designed around the idea that if the United States was engaged in a declared war or had faced a direct invasion from an enemy state, then the President would need some extraordinary authority to round up and remove citizens of that enemy state, or subsets of that group, nationals of that enemy state. And that's the position that the Trump Administration has been advancing. It's hit a big roadblock in the courts, but I think it's all part of this idea that the United States or the Trump Administration is engaged in an actual war against Tren de Aragua, not in a rhetorical sense like the war on drugs going back decades, but now an actual armed conflict.

LINDSAY:
Well, Matt, let me ask you about that and what it means for understanding of the law more broadly. I mean, it seems to me that when Congress has passed statutes over the years, as practices have developed, people's understanding of what constituted an invasion was narrower than the Trump Administration is arguing. And I would note when you look at other cases, for example, the president's interpretation of the International Emergency Powers Act, IEEPA, to justify using tariffs, or paying tariffs, the President has invoked a national emergency for issues that are actually fairly longstanding leading people to wonder if in fact the words and statutes are just being interpreted to allow the administration to do as it wishes. Is there something to that?

WAXMAN:
I think there is something to that. I mean, I will say that over time, presidential administrations, again, of both parties, have taken statutes that were designed for narrow views of national emergencies or national security emergencies have broadened the interpretation of those statutes to invoke extraordinary powers. Now, I think what the Trump Administration is doing here should be seen in the context of a number of worrying legal moves. I think we're seeing a centralization of government power within the White House. We're seeing deployment of military forces to American cities, essentially to perform law enforcement functions, but based on at least rhetorical claims of war going on in American cities, declaration of domestic groups or movements as terrorist organization. And I think if you put that together, we see a presidential administration really inflating in a very dramatic way its power to use military force. And that's why I think at a bare minimum, we're deserving of a very clear explanation, not only of the bases for some of these actions, so legal bases, but also what are the limits to this expansive theory of national security emergency or even war.

LINDSAY:
I would imagine, Matt, that there are knock on consequences of this because if administrations begin to be, sort of, liberal, if I can use that term in how they interpret statutes, expanding what congressional intent was, becomes very difficult for Congress to write laws because you write laws assuming that words has certain meanings, and those meanings are shared by others. But if people can broaden them, then how do you write legislation that allows presidents to do what you want the president to do, but don't allow them to do whatever it is they wish to do? And that would take you back toward writing very restrictive laws, but that has its own consequences. I mean, anyone who is familiar with the 1930s and the neutrality legislation realizes that Congress tied FDR's hands in a way that probably was counterproductive.

WAXMAN:
Well, that's right. I mean, look, we have a system that, going back to the founding, is premised on this idea of checks and balances, that if you read James Madison's Federalist 51, he talks about ambition being made to check ambition, that you have three branches of government and two levels, the federal and state, vying for power, and they're going to therefore check each other. And here we're really waiting to see how much the other branches of government, here I'm thinking of courts and Congress, will really push back on some of the aggressive legal moves that I described before. We may see, for example, the courts clipping the president's wings with regard to the use of IEEPA. You mentioned before, this is a sort of a very, very broad standing emergency powers statue that gives the President quite a range of economic and financial tools for dealing with international emergencies. President Trump has used that to justify across the board global tariffs. And the Supreme Court's going to review that and we'll see whether the Supreme Court says that the President has gone too far.
What we really haven't seen so far is Congress pushing back, and I think you were getting at this in your comments. I do think it's the case that historically when presidents have gone too far in overstepping Congress's prerogatives, Congress does eventually push back. I mean, I think we saw this for example, in the 1970s at the end of the Vietnam War and Congress passing a range of statutes to try to hem in the President, especially when it comes to foreign policy and national security. But there's a continuing tension there, and I don't think that this was ever designed to be a system that reaches some perfect equilibrium. It's about, as Madison said, a continual pushing by the various branches to check each other. And I think right now we're not seeing a lot of checking by Congress. We'll see how long that lasts.

LINDSAY:
I've probably taken this a little bit further afield than I intended to, Matt. Let me bring us back to the specific question of these attacks. And I wonder to what extent, in your judgment, the legal argument that the Trump Administration is making stands up if the attacks are not on smugglers on the so-called high seas, but are attacks on drug cartels, drug operations within countries. Again, you know as well as I do, there's been a lot of talk in some circles about using the U.S. military to go after drug cartels, particularly in Mexico. Do the legal issues change if we're talking about strikes on other countries?

WAXMAN:
Well, that's right. The Trump Administration has talked about using military force on Mexico's territory to go after other narco terrorist groups as it would label them. It hasn't taken that step yet, but using force on another state's territory as opposed to on the high seas does raise some additional legal issues. Under the UN Charter, states are prohibited from using force against the territorial integrity of other states, and certainly to bomb targets within another state would run counter to that. Now, I think what the Trump Administration might do if it were to take that step, let's say with regard to Mexico, is make the kind of argument that presidents have made in counterterrorism operations, which is to say that in instances where the United States is facing a direct attack or an imminent attack, and that third party state, or let's call it the host state, is unwilling or unable to neutralize that threat itself, then the United States has some limited right to use military force itself. Basically, if you won't stop attacks on your territory from coming into ours, we're going to take our own action.
That's a position that the United States government has taken over recent decades. I think there's actually some interesting historical antecedents there. It's a controversial one. Not surprisingly, many states around the world reject that view. I actually think it's a quite, in theory, in principle, against certain kinds of threats, it's a doctrine. It's an interpretation of international law that makes quite a lot of sense. States need, on the one hand, to respect the territorial integrity of other states, but they also need the flexibility to defend against attacks. I think what would be really new here in crossing a new rubicon would be a couple of things. We'd be talking about the use of military force to deal, not just with direct military attacks on the United States, but against harms like drug flows. Second is this would be the use of military force against the territorial integrity of a state right on our border. Not over there in let's say Yemen or Pakistan, but right on our border and a state with which we have a lot of important partnership, law enforcement cooperation, intelligence sharing and so on.

LINDSAY:
And also a country that we have a long history of using military force against. And on this score, it might be worth revisiting the lessons of the Wilson Administration more than a century ago in its dealings of Mexico.

WAXMAN:
I think that's right. And one needs to take into account not just the short term effects, which may or may not be effective in dealing with immediate problems of infiltration of drug gangs, the importation of drugs into the United States. There may be some short-term gain, but that needs to be weighed against, I think, some dire long-term consequences. And I have in mind there a possible breakdown in cooperation with a close partner and ally. That's why I think that would be a very, very extreme, I think a dangerous step, even if the United States were to assert some legal basis for taking that action.

LINDSAY:
Well, it's a good reminder that the fact that something may be legal or can be justified legally doesn't mean it is the wise or proper policy response.

WAXMAN:
That's right. I talked before about how the United States has an interest in not just upholding, but really promoting international law. But aside from that, we need to think about the policy consequences of the use of military force. I said before, I'm somebody who believes very strongly in American hard power, including in this region, but we also need to take into account the effects within foreign states, within their domestic political system and the effects on U.S. diplomacy more broadly in the region.

LINDSAY:
On that note, I'll close up this episode of The President's Inbox. My guest has been Matt Waxman, adjunct senior fellow for Law and Foreign Policy at the Council and a professor of law at Columbia University. Matt, as always, thanks for joining me.

WAXMAN:
Thanks for inviting me back.

LINDSAY:
Today's episode was produced by Justin Schuster with Director of Podcasting Gabrielle Sierra. Jorge Flores was our recording engineer. This is Jim Lindsay. Thanks for listening.