The Trump administration is framing its boat strikes against drug cartels in the Caribbean as a collective self-defense effort on behalf of U.S. allies in the region, according to three people directly familiar with the administration’s internal legal reasoning.
The legal analysis is based on a premise – for which there is no immediate public evidence – that the cartels are carrying out armed violence against the security forces of allies such as Mexico, and that the violence is funded by cocaine shipments.
As a result, according to legal analysis, the attacks are targeting cocaine, and if any civilians are killed then the deaths of anyone on the ship should be treated as enemy casualties or collateral damage rather than murder.
That line of reasoning, which forms the backbone of the classified Justice Department Office of Legal Counsel (OLC) opinion, provides the clearest explanation to date of how the US met the conditions for using lethal force.
But it marks a sharp departure from the story Donald Trump has told the public whenever he has discussed the 21 attacks that killed more than 80 people, which he has portrayed as an effort to prevent overdose deaths.
A White House official responded that Trump was not making any legal arguments. Still, Trump’s comments remain the only public reason why the US is firing missiles – while the legal justification is actually very different.
And it would also be the first time the US has claimed – doubtfully, and contrary to widely held understanding – that the cartels are using cocaine proceeds to wage war rather than make money.
In a statement, a Justice Department spokesperson said: “These operations were ordered consistent with the law of armed conflict.” The Pentagon did not respond to a request for comment.
The new argument being put forward by the administration comes as the importance of legal justification has increased amid a military campaign against the cartels that shows signs of expanding dramatically.
The US now has an extraordinary force in the Caribbean with the arrival of the USS Gerald Ford, the world’s most advanced super-carrier, which brings the capability to strike land targets, which Trump has said he wants to step up.
And this week, Defense Secretary Pete Hegseth threatened Senator Mark Kelly with a court-martial after he recorded a video with five other Democratic lawmakers in which they warned military members to question unlawful orders, apparently in reference to the attacks.
Cartel goals disputed
The collective self-defense argument is considered a major issue of legal analysis, according to three lawyers directly familiar with the OLC opinion blessing the boat attacks.
The opinion formalizes a July 21 meeting of a “restricted interagency counsel group” of four career and four political appointees from the Pentagon, Office of the Joint Chiefs of Staff, CIA, White House, and OLC.
It argues primarily that the US has entered into armed conflict with the cartel because it is helping allies in the region such as Mexico and Colombia, according to an administration official who asked for US help confidentially for fear of retribution.
The armed conflict designation is significant because it allows Trump to operate under the so-called law of armed conflict, which allows the use of lethal force without violating federal assassination laws or international law.
The opinion then found that Trump does not need congressional approval because the administration has satisfied the OLC’s two-pronged test: whether the attacks are in the national interest, and whether they would not be of prolonged scope, nature, or duration.
For example, it outlines four areas of national interest that warrant attacks, ranging from the duty to provide assistance to allies, to maintaining regional stability, to protecting the United States from the influx of illegal drugs.
But despite the laudable legal framework, the OLC’s opinion about the cartel depends on a fact pattern for which no public evidence exists.
The closest analogy is probably the trafficking of opium by the Taliban and al-Qaeda during the War on Terror to finance their terrorist activities. But in that instance, it was clear that their primary goal was to carry out armed attacks against the US and NATO allies, and opium financed their weapons.
It is uncertain whether the same applies to drug cartels in Latin America.
Martin Lederman, a former Deputy Assistant Attorney General at the OLC during the Obama and Biden administrations, expressed skepticism about the administration’s claims about collective self-defense.
Lederman said, “A significant problem with this theory is that they have not yet identified any states that are engaged in armed conflict with any particular cartel.”
“Nor has the Administration provided any evidence that any other state involved in such an armed conflict has asked the United States to destroy cocaine shipments that are allegedly being used to fuel armed violence against the requesting state,” he said.
An administration official said it had evidence that each boat was carrying about $50 million worth of cocaine, the proceeds of which were being used to acquire sophisticated weapons, but the underlying intelligence remained classified.
Nevertheless, the Justice Department’s OLC is not an expert in assessing intelligence findings or cartels’ alleged motives; Generally, this matter depends on the US intelligence community.
For this opinion, a senior administration official acknowledged, the OLC did not attempt to delve into the underlying facts to determine the cartel’s alleged goals – or the existence of an armed conflict.
The OLC considered only a narrow question raised by the White House, whether it was a legitimate policy option for the President to use military force against unflagged vessels in international waters transporting cocaine.
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