Trump OLC On Boat Strikes: The Less Of A Threat Posed By Boat Occupants, The More Justified We Are In Murdering Them

Legal Issues

from the if-they-don't-want-to-be-killed,-they-should-fight-back-more dept

This administration isn’t content to be normal awful. It insists on being ghastly awful as often as possible.

Not content to eject hundreds of migrants into foreign torture prisons, the administration has decided it’s time to start killing foreign people in boats just because. That’s not me using a worn-out turn of phrase. That was the administration’s official response when it began engaging in extrajudicial killings in international waters. It fired first and issued its justification after.

At first, the theory was that the international drug trade amounted to war-like actions against the US that would justify the violence. But that excuse only works for so long. Limitations on executive power are supposed to force the president to present his case for war to Congress. Trump doesn’t want to do this even though it’s virtually assured GOP legislators would trip over themselves to rubber stamp whatever xenophobic violence the Trump administration wants to engage in.

The military is fully involved. But those officials are struggling to maintain the GOP party line while still respecting the laws that govern military actions.

Department of Defense (DOD) officials told Democratic lawmakers in a brief on the U.S. military’s strikes against boats off the coast of northern South America that the military is not identifying the occupants of the boats before they bomb them.

[…]

On Thursday, Rep. Sara Jacobs (D-California) told CNN that the Pentagon briefed her and other lawmakers on the attacks, informing them that the administration does not “need to positively identify individuals on the vessel to do the strikes.”

The administration attacked the boats — rather than detaining and then prosecuting the people they claimed were drug traffickers — “because they could not satisfy the evidentiary burden” to successfully prosecute them, Jacobs elaborated.

So, it’s pretty much civil asset forfeiture, but with the military killing people rather than merely robbing them of their property. It’s a middle finger to due process that makes it clear this administration would rather kill people than prosecute them, which is going to get even more frightening when it inevitably decides it can bring this undeclared war back home.

Even though it probably feels it owes no one any explanation for its actions, the Trump administration is still trying to find some way to sell the system of checks and balances on its offshore murder program. Some form of justification is needed for these extrajudicial murders. And the administration’s latest legal theory is both sickening and astounding. Realizing that referencing “hostilities” might put time limits on boat strikes, the Trump DOJ continues to revise its take on war powers, which has led to this bit of galaxy brain rationalization:

A top Justice Department lawyer has told lawmakers that the Trump administration can continue its lethal strikes against alleged drug traffickers in Latin America — and is not bound by a decades-old law requiring Congress to give approval for ongoing hostilities.

The key word here is “hostilities.” The administration must seek approval from Congress for “sustained” actions against a foreign enemy. The War Powers Act was passed in response to President Nixon’s undeclared war on Cambodia during the Vietnam War. Nixon justified military action in Cambodia by claiming the country was harboring Vietcong combatants.

That law sets a 60-day time limit on actions like these and it has been routinely ignored by the Executive Branch. President Obama blew it off to engage in an undeclared war in Libya, while Trump did the same thing during his first term to engage in sustained air strikes in both Yemen and Syria.

The second Trump administration is now blowing off the War Powers Act to prevent it from at least temporarily halting boat strikes in the Caribbean and those that are now taking place in the Pacific Ocean. Here’s how the Office of Legal Counsel — via T. Elliot Gaiser — is seeking to circumvent the long-codified 60-day limit:

Gaiser said the administration did not believe the strikes met the definition of hostilities under the law and did not intend to seek an extension of the deadline nor Congress’s approval of ongoing action, according to three people familiar with the matter, who, like others interviewed for this article, spoke on the condition of anonymity because of the sensitivity of the matter.

In other words, because boat strike murder victims are not firing back at US troops or engaged in any attacks on US military personnel/bases, they are not engaged in “hostilities.” If these strikes aren’t a response to “hostilities,” there should be no time limit on them. And that is some insanely dangerous bullshit.

“What they’re saying is anytime the president uses drones or any standoff weapon against someone who cannot shoot back, it’s not hostilities‚” said Brian Finucane, a former legal adviser to the State Department who is now a senior adviser for the U.S. program at the International Crisis Group. “It’s a wild claim of executive authority.”

Yeah, it is. It’s pedantry in service of straight up murder. The Defense Department has admitted it’s killing people because it can’t secure a criminal conviction. The administration is continuing to pretend that the mere existence of an international drug market justifies drone strikes on boats in international waters. And now it’s going even further, threatening land wars (but without actually declaring war) in Columbia, Venezuela, and for some fucking reason, Nigeria.

We have the same people who see Orwell’s 1984 as a blueprint making it clear they believe Mr. Kurtz is the real hero of Joseph Conrad’s Heart of Darkness. And as if this wasn’t dystopian enough, the administration is using NSA-esque contact chaining to kill people simply because they might be acquainted with someone (allegedly) in the drug trade:

“What they told us is they have to show a connection to a designated terrorist organization or their affiliate, and as long as they can show that connection, they believe they are authorized to strike,” Rep. Sara Jacobs (D-California) said in an interview.

But such connections could be as much as “three hops away” from a known drug trafficker, Jacobs told reporters after the briefing.

Under this theory, if you know or are acquainted with anyone who purchases/uses illicit drugs, you’re probably just two hops away from a “known drug trafficker.” You’ll only be three hops away if there are enough small-time middlemen involved that haven’t previously been arrested on drug charges. Three hops in the United States would make most of the population a “justifiable” target for an extrajudicial drone strike. Just because it’s happening to non-citizens in international waters doesn’t change the math. It just makes it easier for most Americans to stomach and much easier for the bigots in power to sell to the bigots in their voting bloc.

Filed Under: boat strikes, extrajudicial killings, murder, olc, trump administration, war on drugs, war powers