Arrests are likely not imminent

Are the attacks on what the administration says are Venezuelan drug smugglers legal? Probably not or at least they probably should not be. Does it matter? The following are just some notes from a non-lawyer. take them for what they’re worth. I’m going to assume for the sake of argument that all of the people killed so far in these strikes are in fact members of a drug cartel and in the act of smuggling drugs even though I think there’s reasonable doubt. We’re also not going to get into second strikes here.

So as to the question: You probably know that congress is supposed to authorize military actions. Let’s start there. The president can act without pre-authorization if they deem it necessary for national security but authorization is supposed to be sought and secured within 60 days or hostilities have to be ceased. So you might say that these strikes are illegal because it’s been 60 days and there is no congressional authorization.

The administration disagrees that they need authorization. They argue that these strikes are not hostilities as defined by the War Powers Resolution because there is little risk to American lives. And there’s precedence for this. Obama made similar arguments when he sent troops into Libya without seeking authorization. Whether or not we think they’re right legally, let’s consider how this precedent will age. We’re moving into an era where warfare is conducted via drones and robots. Wouldn’t this precedent give future American administrations the constitutional authority to unilaterally kill any non-citizen they want as long as its overseas, it’s quick, and all the killing is accomplished by drones?

This idea hasn’t been meaningfully tested in the courts, which have declined to take it up . While I’m a know-nothing the argument seems wrong to me. It says that the only reason the congress and the people at large could care about military action is due to the possibility of losing lives. I reject that. The people have an interest in the violence committed in their names, regardless of whether lives are lost. But I have to acknowledge that reasonable people can disagree. The constitution says that Congress has the sole authority to declare war and strikes on drug smugglers in international waters seem like something less than a war. Past administrations have chosen to interpret this requirement more broadly to include non-war military actions as in the war on terror, authorized by Congress in 2001, and that’s my preferred interpretation. However I have to admit that the text doesn’t disallow the narrower interpretation. Since we don’t have any court opinion, it’s somewhat up in the air.

Beyond the War Powers question, the choice to call drug cartels Foreign Terrorist Organizations could point to another part of their legal strategy. It could be purely a PR move, designed to make the whole thing just feel like another day of America hitting terrorists with missiles from drones. But if it’s a legal strategy one possibility is that it’s an attempt to reuse the authorization granted by congress in 2001. That seems unlikely given that that authorization was specifically to take action against the planners and executors of 9/11. The other possibility is that it’s an attempt to invoke some of the legal theories that George W. Bush and company put forward in an attempt to skirt the bodies of law regarding both human rights and the conduct of war.

The 1976 Covenant on Civil & Political Rights (ICCPR) declares that no one shall be arbitrarily deprived of life without a judgement after a fair trial. The purpose of the administration calling this an armed conflict could be to skirt this covenant. However I don’t buy that calling it an armed conflict makes the strikes legal either. The Geneva conventions, which define the laws of war, require due diligence to differentiate combatants from non-combatants and to avoid harming non-combatants. These strikes are only legal if the US has done that due diligence and determined that these smugglers are combatants. However drug smugglers are not combatants. Even though they carry guns, the aim of drug smugglers is not to take American lives and damage America it’s to make money. And anyway, in what sense are we in armed conflict with Venezuela except for the fact that we’re taking up arms against Venezuelan citizens? And how can the administration claim that we are in armed conflict to the degree that the law of war applies and not human rights law, but also not in hostilities to the degree that congressional authorization is not required? Again though, regardless of whether you accept that we’re in armed conflict; drug smugglers aren’t combatants.

The US is not a party to Additional Protocol I to the Geneva Conventions which delves into armed conflict with non-nation-state actors and specifies that terrorists are combatants as defined in the original Geneva conventions. That creates an ambiguity that George W Bush tried to exploit. The reasoning of his administration was that we are in an armed conflict with terrorist organizations but we don’t recognize them as either combatants or non-combatants but rather as “unlawful combatants” and therefore neither the protections in the ICCPR or the Geneva convention apply to them and therefore we can torture them. This didn’t work out well and these arguments are not well considered today. Nevertheless, this could be where this current administration wants to go with calling the cartels terrorists and saying that we’re in armed conflict with them. However if drug smugglers aren’t combatants then I don’t see how they can be unlawful combatants. To accept that these killings are legal due a state of armed conflict the administration asks us to accept that a bundle of cocaine is an arm and offering it to be purchased by an American is an act of armed conflict, one to which an extrajudicial killing is a proportional response. That defies common sense.

So assuming you agree with me on these points so far, then the strikes are illegal because they lack congressional authorization and they’re illegal under international human rights law that we are a party to. Great. Now what? Recognizing that these acts are illegal is not a trump card that wins this fight and makes the strikes stop. There’s no law enforcement agency that is going to put American administration officials in handcuffs over this, not domestically or internationally. It’s also unlikely that suing will do you any good because the courts have almost entirely refused to settle questions around the executive’s use of military force. Which makes this a political battle. All roads lead back to the congress. It’s the congress that can investigate, can demand that their authorization be sought, threaten funding, and even impeach a president who takes un-authorized actions. So far both houses of congress have narrowly voted multiple times against blocking further strikes. Thus this congress is not for stopping the strikes or for requiring the actions to be authorized in accordance to the Constitution and War Powers Resolution.

If you disagree with these strikes or other actions like them then that’s what has to change, they have to vote differently. Making that happen requires electing congresspeople that care about human rights and making them feel like their jobs depend on fighting for them. Which will require pressure from their constituents which puts the onus on us to convince them and to convince our neighbors. It seems to me that we have to talk about more than just the legality of the strikes. The utility of the law in this case is not as an enforcement mechanism but as a starting point to have a discussion about our values, how they influence the way we interpret the law, and the outcomes that we would like to see for our nation and for our fellow humans.

We believe that all men are created equal with certain inalienable rights don’t we? And that you can’t take those rights away except for really good reasons with a bunch of safeguards in place to ensure you don’t accidentally or unjustly kill the wrong person right? I don’t want people getting killed in my name unless there’s some actual good reason for it. And I especially don’t want them getting killed when they aren’t even combatants unless there’s some amazingly great reason.

Because I want to be treated in a just manner, I believe the government that I live under should treat all people in a just manner. Because I care about prosperity and peace it matters when we embark on paths that disregard the personhood of non-Americans outside the country, that paint us as a bully to be tolerated until we can be destroyed rather than a trustworthy ally to build a better world with. And the reasons we’ve been given for embarking on this path don’t come close to justifying the human rights we’re violating, the stature we’re losing, or the war with Venezuela we’re risking. So please tell your congresspeople we need better reasons or it needs to stop. Teach your children about human rights and don’t let them be bullies. Talk to your fellow Americans about the wisdom and morality of the actions taken in our names.