Striking the Unknown

Last week two senators and four congressmen — all Democrats — sent out a video that said members of the U.S. military shouldn’t obey illegal orders. In the video they said that, “Threats to our Constitution aren’t just coming from abroad, but from right here at home.”

They didn’t say what orders the military shouldn’t obey but the timing of the video suggests that it was aimed at the military who are carrying out President Trump’s strikes on boats in the Caribbean and off the Pacific coast of Columbia that were allegedly carrying drugs being transported to the U.S.

Those strikes have, so far, interdicted about 21 boats and killed about 80 alleged drug runners.

The question of legality of the boat strikes is very complicated and may not be answerable absent an explanation by the Trump administration.

All military members are bound to obey legal orders under Uniform Code of Military Justice Article 92. Orders are presumed to be legal and only those orders that are “manifestly illegal” — such as orders to kill civilians, to falsify documents, and orders to otherwise commit crimes under the UCMJ — can be readily disobeyed.

Military members can be punished for violating legal orders under Articles 92 (failing to obey an order) and Article 94 (sedition).

So where do the orders to destroy the drug boats and kill those aboard fall? It’s entirely unclear.

We have to remember that, under former president Obama there were drone strikes that killed people, even U.S. citizens. Adam Gadahn, a U.S. citizen who was a spokesman and media adviser to al-Qaida, was killed in January 2015. Several commentators objected to the killings, saying that U.S. citizens couldn’t be killed without due process.

But Obama had a perfect justification to kill Gadahn. Gadahn was a member of al-Qaida and the Authorization for the Use of Military Force, enacted in 2002 in response to the 9-11 attacks, authorized military force to kill al-Qaida members. It said, in part, that military action was authorized against any of those who “planned, authorized, committed, or aided the terrorist attacks of September 11, 2001.”

A second AUMF, enacted prior to the Iraq War in 2002, also authorized war against al-Qaida members believed to be in Iraq.

Trump’s orders for the boat strikes were made after Secretary of State Marco Rubio declared several organizations to be “foreign terrorist organizations.” The State Department designations included the hyper-violent gang known as Tren de Aragua as well as several drug cartels.

At this point, we have to analyze the concept of due process of law. Everyone in U.S. custody is entitled to due process. Except, apparently, some terrorists.

Terrorists held at Guantanamo Bay, Cuba — who are men such as Khalid Sheik Mohammed, the alleged planner of the 9-11 attacks and al-Qaida small fry — have been ruled by the Supreme Court to be entitled to writs of habeas corpus (attempting to be released). The ruling didn’t include an allowance of full due process. Some have been released under habeas corpus and many have not. KSM, for example, was captured in 2003 and has been awaiting trial for 22 years. (The evidence against KSM was reportedly gained through torture and is thus inadmissible. A plea deal for KSM to avoid the death penalty was held invalid and is on the way to the Supreme Court.)

So due process is limited to terrorists in U.S. custody who are inside the U.S. It doesn’t apply to the drug boats and their crews.

What is the legal justification for summary executions of alleged drug smugglers? Neither the president nor Secretary of State Rubio has said. Several top military lawyers, including a top lawyer for the Marine Corps, Col. Paul Meagher, reportedly warned against the boat strikes. The UK government also reportedly stopped sharing intelligence which could lead to the boat strikes.

On September 2, Trump said that, “Earlier this morning, on my Orders, U.S. Military Forces conducted a kinetic strike against positively identified Tren de Aragua Narcoterrorists.” But he didn’t, then or since, outline the legal justification for the boat strikes.

We must have substantial intelligence information that the boats which were hit had drugs on them and that they were coming to the U.S. to off-load the drugs. But the public is ignorant of those facts.

Although the boat strikes are popular among Americans, we don’t have any evidence supporting them. No boats have been seized and the people on them have been killed rather than arrested.

The president could still go to congress and ask for another AUMF to authorize strikes against the drug boats and the facilities from which they are launched. He could, instead, arrest the boats and their crews and bring them back to the U.S. for trial. But he hasn’t.

Trump has positioned our latest aircraft carrier, the USS Gerald Ford, off Venezuela to threaten the Maduro government. He has also accused the president of Columbia, Gustavo Petro, of being an illegal drug dealer. Petro has, in turn, accused the Trump administration of killing civilians.

The 1973 War Powers Resolution was passed over President Nixon’s veto. It is of questionable constitutionality because Article 2 both vests emergency power in the president and makes him commander in chief of the armed forces. The War Powers Resolution requires the president to seek congressional approval of any troop deployment within sixty days or cease the use of military forces. That period has expired in regard to the boat strikes and will soon expire on deployment of the USS Gerald Ford. The question of the deployment of Ford is dependent on whether Trump orders attacks on Venezuela.

There is no simple legal answer to the questions that arise from the boat strikes or to Trump’s positioning a carrier (and, presumably, its entire battle group) off Venezuela. Are they legal? If so, where is the legality found? Trump needs to answer those questions before he takes any further actions in regard to the drug boats or Venezuela or Columbia.

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