Experts skeptical of legality of Trump’s strike on alleged drug boat

Under intense pressure from Capitol Hill to provide a legal rationale for the unprecedented killing of 11 alleged drug smugglers by the US military, the Trump administration has so far ducked lawmakers and provided a mishmash of public justifications that raise serious questions about the legality of the strike, legal experts and congressional sources say.

The Defense Department on Friday abruptly canceled classified briefings it was set to provide in the morning to several key House and Senate committees, two people familiar with the matter told CNN. Lawmakers and staffers had hoped to ask officials questions about the legal justification for the strike, and even get basic details like which military unit conducted the attack, what type of munition was used and the kind of intelligence gathering that went into determining the identities and intentions of those on the boat.

Broadly, administration officials have sought to make the argument that the 11 people on a speedboat that the US blew up in international waters in the Caribbean this week were legitimate military targets because they were members of a loosely organized Venezuelan criminal gang called Tren de Aragua, which the US has designated as a terrorist organization.

“The strike was the obvious result of designating them a terrorist organization,” said one person familiar with the Pentagon’s thinking. “If there was a boat full of al Qaeda fighters smuggling explosives towards the US, would anyone even ask this question?”

But Congress in 2001 explicitly determined the US to be at war with al Qaeda, officially stamping them as combatants who the US is legally allowed to kill under both domestic and international law. It has not done so for Tren de Aragua. The designation of the group as a foreign terrorist organization — or FTO — under US statute gives the president the authority to engage financial and legal penalties, like sanctions, but it does not automatically authorize the use of lethal force.

The president has the authority under Article II of the Constitution to use military force when it is in the national interest, and when it does not amount to “war” in the constitutional sense, which requires an act of Congress. Past administrations have interpreted these standards fairly broadly — especially in the decadeslong war against al Qaeda, ISIS and other evolving Islamist terror groups — and Trump officials have also claimed the president was exercising his inherent Article II powers here.

But again, legal experts say, there is a wrinkle: That amorphous power still requires that the president establish that its targets are legitimate military targets who should be treated as combatants under both international and domestic law. Cartel members and drug smugglers have traditionally been treated as criminals with due process rights — not enemy combatants — and the Trump administration has yet to offer a justification beyond the FTO defense that it is in a state of armed conflict with Tren de Aragua.

Trump on Friday sent a letter to Republican Speaker of the House Mike Johnson and Republican Sen. Chuck Grassley, the Senate president pro tempore, formally notifying Congress of the strike, but offered little detail beyond a vague claim of his Article II authority, and in fact did not list Tren de Aragua by name as the target, according to a copy of the letter obtained by CNN. He said the military was “postured to carry out further military operations,” as Secretary of State Marco Rubio and other officials have indicated that they intend to do.

Anna Kelly, a White House spokeswoman, said in a statement that “the strike was fully consistent with the law of armed conflict” — suggesting that the administration wants wartime rules to apply to the group.

“It’s legal madlibs,” said Brian Finucane, a former State Department lawyer who specializes in war powers issues. “They’re throwing a lot of words out there that don’t necessarily go together or constitute a coherent legal justification.”

Few details on the deceased

Even if the action taken against the 11 people in the boat did constitute a strike against a group with whom the US was engaged in armed conflict, there are other legal questions and contradictions within the administration’s public accounting of the episode.

Finucane and others pointed to Rubio’s admission that the boat could have been interdicted rather than destroyed — as has been done in the past — but that the president ordered a lethal strike as a matter of first, not last, resort.

“That gives away the ballgame right there,” said a former Pentagon lawyer who left the government in recent months. “Any remotely plausible argument for inherent commander-in-chief authority to take military action would require showing there wasn’t an alternative to lethal force.”

Trump in his letter to Congress also claimed that the administration acted in self defense because of “the inability or unwillingness of some states in the region to address the continuing threat to United States persons and interests emanating from their territories” — language that echoes some key justifications for the use of force under international law.

But, the same former defense lawyer said, under the UN Charter establishing the international rules of war, to claim a defensive action, “you have to establish it was necessary and proportionate.”

“If you’re admitting you could have just interdicted, how was blowing up necessary?” this person said.

And perhaps most importantly, experts and congressional aides said, the administration so far has provided few factual details about the 11 people on the boat that would support their assessment that they were a legitimate military target.

Rubio and Trump offered conflicting assessments of where the boat was heading — Rubio initially said the alleged drugs on board were “probably” bound for Trinidad or another Caribbean country, while Trump said the vessel was headed to the US. Rubio later said the US had intelligence the vessel “was headed towards, eventually, the United States.”

Although Defense Secretary Pete Hegseth said Wednesday that the government “knew exactly who” was on the boat and “exactly what they were doing,” and Trump has said the US has “tapes of them speaking,” the government has not released the identities of any of the killed people. The military and the CIA have been criticized in the past for mistaken killings of civilians whom they believed were terrorists.

International law prohibits the deliberate killing of civilians, even in the context of an armed conflict. Domestic law, meanwhile, prohibits unilateral and premeditated killings of non-military targets.

“There is a word for the premeditated killing for people outside of context of armed conflict,” Finucane said. “That word is murder. The administration has not made the case US is in armed conflict with TDA or made the case that they are governed by the law of war.”

CNN has reached out to the White House for comment.

CNN’s Alayna Treene contributed to this report.

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