The Donald Trump administration has offered confused and contradictory arguments for the use of military force in the Caribbean.

The Trump administration’s lethal airstrikes on small boats off the coast of South America are highly irregular on multiple grounds. The administration has presented almost no evidence to support its contention that the people killed on the boats were running drugs into the United States. President Donald Trump has cited deaths of Americans from drugs as the principal rationale for the lethal action, while greatly exaggerating the number of drug overdoses in the United States. But most of the drug deaths involve fentanyl coming from Mexico rather than cocaine from South America. Venezuela—the origin of the boats hit in the earliest strikes—does not even play a major role in the cocaine trade. 

The administration has made no attempt to argue that the usual method of dealing with drug trafficking—non-lethal interdiction, with arrests of the people and seizure of the drugs—was infeasible. The attacks have amounted to summary executions of individuals, with no due process and no right to mount a defense in a court of law. The executions are for purported crimes that, under US law, do not involve a death penalty.

The administration’s statements have fostered confusion about whether it is combating mainly state action or the independent work of nonstate actors. Trump has tried to tie anything bad coming out of Venezuela, including drug trafficking, to the regime of Nicolás Maduro. Trump asserts that the gang known as Tren de Aragua is “operating under the control of” Maduro, an assertion that an assessment by the US intelligence community contradicts.

Meanwhile, the administration has notified Congress that President Trump has “determined” that the United States is engaged in an “armed conflict” with drug cartels, and that the people it has been killing in the boats are “unlawful combatants.” This is terminology that has usually been applied to nonstate terrorist groups, such as Al Qaeda. 

Early in his second term, Trump signed an executive order directing that “certain international cartels” be designated as Foreign Terrorist Organizations, which means inclusion on a list that was never intended to be applied to arms of a state. The order named some groups, such as Tren de Aragua, but was otherwise vague as to how far it would apply. The administration has given no evidence that the people in any of the boats were armed or were engaged in terrorist operations.

Blowing up boats with air power rather than using the law enforcement approach of interdiction, arrests, and seizures may be interpreted as an extension of Trump’s irregular use of the military domestically. Another possible interpretation is that they are part of a larger effort to pressure the Maduro regime, in the hope of precipitating the regime’s collapse. A highly visible part of that pressure is the current US military buildup in the Caribbean. 

More recently, Trump’s ire has been aimed also at the leftist president of Colombia, Gustavo Petro, especially after Petro accused US forces of killing an innocent Colombian fisherman. More of the recent US attacks on boats have been in Pacific waters off the Colombian coast, and Trump has further responded by declaring that he would cut off all US aid to Colombia. 

The most recent wrinkle to this whole affair is the administration’s contention that the War Powers Resolution, the 1973 law that requires an end to the US military’s involvement in overseas hostilities after 60 days unless Congress approves a continuation, does not apply to the boat strikes. The administration had formally notified Congress, “consistent with” the War Powers Resolution, after the first boat strike in early September. 

But when the 60-day mark was reached in early November, the head of the administration’s Office of Legal Counsel argued to members of Congress that because the attacks on the boats are one-sided affairs with nobody firing back, they did not constitute “hostilities” as that term is used in the War Powers Resolution.

Thus, the administration is saying that its military operations in South America constitute an “armed conflict” but not “hostilities.” They use one set of semantics to bypass US law governing the policing of crime, and an alternative set of semantics to bypass US law governing warfare.           

The Obama administration had used a similar argument about the meaning of “hostilities” in the War Powers Resolution during a NATO air operation in Libya in 2011. Circumstances were different, however, in that the Libyan matter was a multilateral operation implementing a United Nations Security Council Resolution, whereas what has been happening in South America is a unilateral US offensive.

There is admittedly a certain logic to such arguments, in that warfare is generally considered to be a two-way affair, whereas the attacks on the small boats are more like shooting fish in a barrel. But although putting US personnel in harm’s way is one reason to require congressional approval for overseas military operations, it is not the only reason. Another is the use of military resources and the opportunity costs that may entail. Yet another is that dangers to US personnel may not be immediate but eventually materialize, with adversaries responding at times and places of their own choosing, including possibly through terrorist attacks.

A further reason is that the use of military force is inevitably a major, disruptive action that can have a variety of repercussions, and not just with the targeted country. Most seriously, such use can escalate into a bigger war, with firing in both directions. This hazard is especially pertinent because a bigger war with Venezuela appears to be a possibility, despite Trump’s recent comments downplaying that option.

The administration’s conflation of drug running with international terrorism is intended to play off the wide acceptance among Americans of the use of lethal force against known terrorists. But the concept of war, as a counterpoint to criminal law enforcement, has not worked well in counterterrorism either, especially during President George W. Bush’s “Global War on Terrorism” (GWOT).

The use of the war metaphor encouraged the use of literal warfare, even though the military is not always the most appropriate counterterrorism tool. The war mindset helped the US response to the 9/11 attacks degrade into a misguided war in Iraq and 20 frustrating years of military operations in Afghanistan.

Bush’s GWOT also brings to mind another legal twilight zone, which was the choice of the US military base at Guantanamo, Cuba, as a detention facility. That choice was partly an effort to put the facility beyond the reach of law—US criminal law, Cuban law, or anyone else’s law. US courts did not let it work out that way, but this evidently was the intention. Delays and failures have plagued efforts to use a substitute system of military tribunals.

Now, the Trump administration is conducting a military operation that it is trying to keep beyond the reach of both US criminal law and US law on the use of the military overseas, as well as violating international law. Perhaps the most pertinent interpretation of this episode is that it is simply another example of the administration’s general disdain for the rule of law. 

About the Author: Paul Pillar

Paul R. Pillar retired in 2005 from a 28-year career in the US intelligence community, in which his last position was as the national intelligence officer for the Near East and South Asia. Earlier, he served in a variety of analytical and managerial positions, including as chief of analytic units at the CIA, covering portions of the Near East, the Persian Gulf, and South Asia. His most recent book is Beyond the Water’s Edge: How Partisanship Corrupts US Foreign Policy. He is also a contributing editor for this publication.

Image: Hunter Crenian / Shutterstock.com.

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