If you’re as worried as I am about this turn of events, here’s roundup of news and comments regarding the lethal U.S. military attack on a small open Venezuelan boat carrying civilians in international waters. The word “unprecedented” comes to mind.
Lawfare Media: “Did the President’s Strike on Tren de Aragua Violate the Law?“
By targeting narcotics traffickers with lethal force—even when interdiction, by Rubio’s account, was an available option—the Trump administration has taken the tools of warfare and applied them to a group that the United States has historically sought to protect from such targeting: civilians, even when engaged in harmful and criminal behavior. Doing so raises substantial questions of domestic and international law. They, in turn, raise even more questions about the president’s constitutional authority to undertake such actions in the first place.
[This is an exhaustive review of the applicable domestic and military law, as well as historic policy context. Well worth the effort to read through at least once.]
GOP Senator Rand Paul (quoted in The Guardian):
The Republican senator Rand Paul, who chairs the Senate committee on homeland security and government affairs, condemned Vance’s comments.
“JD ‘I don’t give a shit’ Vance says killing people he accuses of a crime is the ‘highest and best use of the military.’ Did he ever read To Kill a Mockingbird?” Paul wrote on X, alluding to Harper Lee’s 1960 novel about a wrongly convicted Black man who is killed as he tries to escape prison.
“Did he ever wonder what might happen if the accused were immediately executed without trial or representation? What a despicable and thoughtless sentiment it is to glorify killing someone without a trial.”
JustSecurity.com (based at the Reiss Center on Law and Security at New York University School of Law)
As a legal matter, the Coast Guard is the primary maritime law enforcement agency of the United States, with broad authorities under the Maritime Drug Law Enforcement Act and the Drug Trafficking Vessel Interdiction Act. Indeed, for the past several decades, the U.S. Coast Guard and other law enforcement agencies have taken the lead in combating maritime drug smuggling, a persistent problem in the Caribbean. The Navy and other military forces assist the Coast Guard in detecting and monitoring drug vessels headed to the United States. Although not perfect, this strategy allows the U.S. military to prioritize the capabilities it needs to fight wars, while tapping into the Coast Guard’s deep law enforcement experience.
The military’s supporting role in counternarcotics missions makes sense: the Coast Guard has broad legal authorities under U.S. domestic law as well as the requisite expertise in the nuances of evidence collection and boarding boats to lead the maritime interdiction mission. The U.S. Navy and other military assets have historically played a critical role in assisting with detection and monitoring drug activity, and they certainly have not preemptively attacked alleged drug vessels.
Indeed, under its broad statutory authorities under Title 14, the Coast Guard—but not the Navy or other military services—possesses the legal authority to search, seize property, and arrest persons suspected of violating U.S. law upon the high seas and waters over which the United States has jurisdiction. And these law enforcement boarding teams follow strict rules for use of force, relying on warning and disabling shots. Even these non-deadly actions must take place under strict conditions with higher-level approval.
Detailed Coast Guard instructions, as well as guidance found in the military’s law of naval operations, prescribe in great detail the use of force policy for Coast Guard personnel when conducting counterdrug operations. The use of force measures include when warning shots and disabling fire are authorized.
The Telegraph (via Yahoo News)
Anna Kelly, White House spokesman, said the strike was “conducted against the operations of a designated terrorist organisation and was taken in defence of vital US national interests”.
It was “fully consistent” with the laws of war, she added.
Legal analysts say her comments reflect a 2001 determination that the US was at war with al-Qaeda after the 9/11 attacks. That made its operatives “combatants” and legal targets under international and domestic law.
However, no such determination has been made about Tren de Aragua. Labelling it “terrorist” means the president has the authority to impose financial and legal sanctions but does not make its members “combatants”.
“I worked at the department of defence. I literally cannot imagine lawyers coming up with a legal basis for lethal strike of a suspected Venezuelan drug boat,” said Ryan Goodman, retired professor of law.
“Hard to see how this would not be ‘murder’ or war crime under international law that DoD considers applicable.”
BBC: “US strike on ‘Venezuela drug boat’: What do we know, and was it legal?”
Experts have also questioned whether the killing of the alleged members of the Tren de Aragua cartel could contravene international law on the use of force.
Under Article 2(4) of the UN charter, countries can resort to force when under attack and deploying their military in self-defence. Trump has previously accused the Tren de Aragua cartel of conducting irregular warfare against the US, and the state department has designated the group as a Foreign Terrorist Organisation.
But Prof Michael Becker of Trinity College Dublin told BBC Verify that the US actions “stretches the meaning of the term beyond its breaking point”.“The fact that US officials describe the individuals killed by the US strike as narco-terrorists does not transform them into lawful military targets,” he said. “The US is not engaged in an armed conflict with Venezuela or the Tren de Aragua criminal organization.”
“Not only does the strike appear to have violated the prohibition on the use of force, it also runs afoul of the right to life under international human rights law.”
Prof Moffett said that the use of force in this case could amount to an “extrajudicial arbitrary killing” and “a fundamental violation of human rights”.
“Labelling everyone a terrorist does not make them a lawful target and enables states to side-step international law,” he said.
Notre Dame Law School Professor Mary Ellen O’Connell told BBC Verify that the strike “violated fundamental principles of international law”, adding: “Intentional killing outside armed conflict hostilities is unlawful unless it is to save a life immediately.”
Excerpt from an excellent Facebook post by Glee Violette
They did not board the boat. They did not collect evidence. They did not even have an accurate head count. Not one of them has been identified. Do they have ANY of the names ? Even now? No.
So how could they possibly know if they were gang members?Or if, as some have suggested, the boat was full of refugees fleeing Venezuela, like hundreds of thousands of Venezuelans have done already. Maybe speeding TOWARDS the US Navy ships hoping to find refuge and safety under our protection.
After all, there were 11 to 13 people aboard that boat. The number differs, because the boat was not close enough to tell. Nor could the gender of the people be determined. Or if there were children on board.
One thing is for sure. If there were so many people on board such a small vessel, there was not much room for a drug shipment. Was there?
And one more worth watching: Lawfare Live