President Donald Trump has done it again.
He is attacking a genuine and serious problem recklessly, heedless of the consequences and, in this case, of human life.
On Tuesday I watched Trump proudly display grainy footage of a military strike on what he said was a boat full of narco-terrorists on their way to the United States with a load of drugs.
Typically, when the Coast Guard or another branch of the military or law enforcement spots a boat suspected of carrying drugs, we seek to stop the boat, search it, seize any drugs, and arrest and question the crew. If these drug-smuggling suspects open fire, American forces can respond, but they cannot simply execute someone on the mere suspicion of drug trafficking.
We do not kill those suspected of being criminals from the air.
‘Jus ad bellum’ and ‘jus in bello’
The thing that separates war from murder is the law, and the law of war contains two key components. They go by two Latin terms: jus ad bellum and jus in bello.
Jus ad bellum refers to the limited legal right to go to war. In other words, when is it legal to fight?
Jus in bello refers to conduct within the war. If it’s lawful to fight, then how must I fight?
For the use of military force to be lawful, it must satisfy the requirements of both doctrines. There must be a legal basis for the use of force, and the force that is used must also be lawful. Russia’s war in Ukraine would be lawless, for example, even if President Vladimir Putin confined himself to conducting airstrikes against only military targets and even if his troops behaved scrupulously in the field.
Why? Because there was no justification for the initial invasion. International law prohibits wars of aggression and territorial conquest, so Russia’s war itself is a crime, regardless of how the military behaves.
Conversely, when debating Israel’s war in the Gaza Strip, jus ad bellum is satisfied: Hamas’ attacks Oct. 7, 2023, gave Israel the legal right to respond with military force, even to the point of removing Hamas from power. The controversies are, for the most part, over jus in bello, Israel’s conduct in the war. Hamas’ attack did not give Israel carte blanche to fight however it desires.
Firewalls
In the United States, we have two firewalls against unjust and unlawful wars. First, the Constitution grants Congress the exclusive power to declare war. The president does have authority as commander in chief to respond to immediate military threats, like an armed attack, before a declaration of war, but he is not supposed to initiate new hostilities in the absence of congressional action.
A crime — even a crime as vicious as trafficking hard drugs into the United States — is not an act of war. It can’t be compared to Pearl Harbor, to Sept. 11 or to any other attack on American citizens or troops, or allied citizens or troops. To even mention Tren de Aragua in the same breath as al-Qaida, much less Imperial Japan, illustrates the absurdity of the administration’s argument.
Second, the international law of armed conflict still applies to U.S. forces. The broad language of Article 18 of the Uniform Code of Military Justice — the criminal laws that govern the armed forces — extends the requirements of international law into U.S. military law, and that means that presidents don’t have the power to order violations of the laws of armed conflict.
So where did Trump find the legal authority to initiate deadly force against suspected members of a drug gang?
The closest thing we’ve heard to an actual legal argument is the repeated assertion that Trump could order a strike on Tren de Aragua because it’s a designated terrorist organization.
Pete Hegseth, the secretary of defense, said after the attack that American forces may strike anyone “trafficking in those waters who we know is a designated narco terrorist.”
“We knew exactly who was in that boat,” he added, and “we knew exactly what they were doing, and we knew exactly who they represented, and that was Tren de Aragua.”
Though I question his certainty (I’ve had enough experience with airstrikes to know that our intelligence is rarely that precise), even if he’s correct, then that knowledge granted American forces probable cause to stop and search the boat for evidence of a crime, not grounds to execute the crew (or any passengers) from above.
For his part, Marco Rubio, the secretary of state, said that the United States will “blow up” members of criminal groups, and Thursday designated two more groups, Ecuadorian gangs Los Lobos and Los Choneros, as terror organizations.
It is true that the administration has the authority to designate foreign entities as terrorist organizations. And it’s true that the administration has used its authority to classify a host of drug gangs as terrorist organizations, but the relevant statute that allows the administration to make that designation does not include an authorization for military force.
What the statute does do is bar Americans from providing “material support or resources” to the designated group and bar members of the group from entry into the United States. It can also require financial institutions to block transactions involving terrorist property and assets.
What we are left with is a military strike conducted against suspects without due process, in the absence of any need for immediate self-defense (the boat was not firing on American forces), without any congressional authorization and without any basis in international law.
Consequences to contemplate
The consequences of Trump’s action are terrible to contemplate. If you are in a state of war with a terror organization, then military forces have the right to shoot members of that organization wherever they are found. When I served in Iraq, if we had sufficient reason to believe a person or a group of people were terrorists, we didn’t have to arrest them. We could kill them.
As an Army lawyer, I helped my commander make life-or-death decisions, including whether to use deadly force on the basis of partial information and drone footage. I know firsthand that the process is imprecise, potentially fraught with mistakes and justifiable only in extreme circumstances.
In Iraq we were engaged in a congressionally authorized counterinsurgency campaign against the deadliest terrorists on earth. Those conditions don’t apply to Trump’s campaign in the Caribbean.
Under the Trump administration’s reasoning, the president’s power to use deadly force isn’t limited to speedboats in international waters. War, after all, is war, and it can be fought wherever the enemy is present. That means members of the National Guard patrolling American streets could be granted broad authority to use deadly force, circumventing due process through a hail of gunfire.
‘Can’t you just shoot them in the legs or something?’
Trump has long fantasized about the promiscuous use of military force. His former Secretary of Defense Mark Esper said that Trump asked about using military force against protesters in 2020, during his first term. “Can’t you just shoot them, just shoot them in the legs or something?” Trump asked, according to Esper.
Trump also reportedly asked about shooting migrants in the legs, and he deployed thousands of soldiers to the southern border. And it’s not just the president. Republican governors have called the flood of migrants across the southern border an “invasion” and sought to unlock their own war powers to respond to illegal immigration.
The laws of war exist because decent societies place a high value on human life and because the world has repeatedly endured the horrendous consequences of total war. Due process exists because millennia of experience with arbitrary power teach us that rulers can’t be trusted to dispense unilateral justice.
Drug trafficking, like all serious crimes, imposes tremendous costs. Drug overdoses have imposed a staggering toll on American communities and families.
But to say that drug trafficking is a serious crime with serious consequences is not the same thing as saying that it’s an act of war. Conflating crime with war obviously risks inflicting violence and injustice on the innocent and the guilty alike, but there are other risks as well.
Military strikes raise the possibility of military escalation. Venezuelan fighter jets flew over an American destroyer after the strike on the suspected drug boat, and now the United States is deploying even more military assets to the Caribbean, including F-35 fighters, our most advanced combat aircraft.
Meantime, Russia and China
Injustice and escalation aren’t the only consequences of Trump’s foolishness and lawlessness. Perhaps the most dangerous consequence is diversion. Russia and China are moving closer together, and China held a military parade last week that showcased an extraordinary range of new, advanced weapons.
Trump is diverting the military from its primary mission: deterring a war with hostile forces that are infinitely more dangerous than any South American drug gang.
No one should have any illusions that either Congress or the Supreme Court will stop the president. The Republican Congress does whatever Trump demands, and the Supreme Court has been reluctant to interfere with the president’s authority to use force abroad, especially since the Vietnam War.
It’s up to the American people to hold Trump accountable for his lawless acts. Every person who pumped his fist at Trump’s news conference should pause and think very hard about letting him — or any president — expand the definition of war until due process dies, blotted out by the flame and smoke of a missile strike.
David French writes a column for the New York Times.
