There is no obvious legal argument to support President Trump's expanding campaign of strikes against alleged drug boats in the Caribbean Sea and Pacific Ocean. And the implications are even scarier.
“Kentucky Senator Rand Paul was absolutely right to describe these strikes as “extrajudicial killings,” a term that has come to be used to refer to targeted uses of force by the state against specific individuals. But they’re even worse than that, for they are, near as I can tell, blatantly unlawful as a matter of U.S. domestic law—and a quickly spreading stain on whatever is left of the executive branch’s commitment to the rule of law.1”
Steve, this is more on topic for the tariffs case, but I posted this comment on today’s NYT David French-Emily Bazelon column. I’m honestly flabbergasted and think it’s time to talk about this:
Maybe the authors could at some point explain what the heck is going on with Alito. Why is he so transparently partisan? Why does he not see the obvious problems Trump is posing for the basic Constitutional order of separation of powers and checks and balances? Alito is going way beyond just supporting the Unitary Executive Theory. Doesn't he care about his legacy? He is completely un-self-aware. Seriously, it's mind boggling and begs a lot of questions.
If these extrajudicial killings are illegal, is this a criminal matter or does it remain solely civil? If criminal, then this is precisely the kind of problem that Justice Sotomayor raised when the Court chose to grant complete immunity to the President for acts committed under his official duties. I think it would be hard to argue that these killings are not directly within the duties of the President, no matter their legality. So, while he may not have "shot someone on 5th Avenue," he has clearly done so on the high seas.
One way to look at SCOTUS's presidential immunity decision is that it was a lie, a devious deception to attack and undermine our Constitution by six judges whose first, foremost and constant duty is "to support" our "Constitution" (U.S. Constitution Article VI) and "support and defend" our "Constitution" against absolutely "all enemies, foreign and domestic" and "bear true faith and allegiance to" our Constitution (5 U.S.C. Section 3331).
No federal judge or court was delegated any power by our Constitution to grant the president immunity from prosecution for committing any crime defined by Congress. Article I delegated to Congress the power (and assigned the duty) to "make all Laws" that are "necessary and proper for carrying into Execution" absolutely "all [the] Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That necessarily means that Congress has not only the power, but also the duty, to "make all Laws" that are "necessary and proper" to govern all the president's men and all the president's powers.
Article VI emphasized that federal law that was "made in Pursuance" of our Constitution is part of the "the supreme Law of the Land" and all "Judges" everywhere under U.S. jurisdiction "shall be bound thereby." Article III emphasized that federal "judicial Power shall extend" no further than permitted "under this Constitution, the Laws of the United States, and Treaties."
The foregoing means that federal judges have the power (and duty) to adjudicate cases regarding claims that a federal law is not "necessary and proper" or not "in Pursuance" of our Constitution. As every SCOTUS justice is very well aware, judges have the power and duty to invalidate an unconstitutional statute, but they have no power to fabricate any exception to any statute that is "necessary and proper" and "in pursuance" of our Constitution.
As a result of the foregoing, another way to look at SCOTUS's presidential immunity decision is that it is essentially irrelevant. SCOTUS said that the president is absolutely protected (has absolute immunity) from prosecution for fulfilling his "core" duties, and he might have some protection (immunity) for performing "official" duties.
The president's "core" and "official" duties are limited to those emphasized by Article II. Article II (and the President's oath of office) prominently emphasized that the first, foremost and constant duty of the President always is (merely) to "preserve, protect and defend the Constitution of the United States" to "the best of" the President's "Ability." Fulfilling such duty clearly necessarily includes "tak[ing] Care that the Laws be faithfully executed." Clearly, every power of the president is subordinate, first, to the legislative power of the People (our Constitution) and, second, to the legislative power of our representatives in Congress. So if a prosecutor can prove that a president has violated his duties under Article II, then the president clearly can be prosecuted by laws enacted by Congress in pursuance of our Constitution.
Thank you for shedding more light on how Trump's conduct is illegal and unconstitutional regarding the power to wage war. But it's at least as important to bear in mind one self-evident truth about Trump: he lies and lies and lies to pretend to justify what he's doing or wants to do. There is no good reason to take as true Trump's purported justification (war with Venezuela or an invasion by Venezuela).
Regarding this matter, it's most simple and straightforward to judge Trump and Hegseth as if they were on trial for murder and we were the jury. Federal law (18 U.S.C. § 1111) defines "Murder" as "the unlawful killing of a human being with malice aforethought." So we should think for ourselves about the substance of Trump's killings and his own admissions regarding those killings. We should think for ourselves about whether such killings are "unlawful." Our Constitution is paramount among the supreme law of the land, so any conduct that is unconstitutional (i.e., violates our Constitution) is necessarily unlawful (illegal).
By Trump's own public admissions, Trump and Hegseth are killing people outside U.S. jurisdiction for no better reason than that Trump is merely pretending to predict a future crime in a U.S. jurisdiction (mere purported drug smuggling). Nothing in our Constitution vested power in Trump or Hegseth to merely pretend to predict a future crime in a U.S. jurisdiction and summarily execute everyone they merely contend is guilty of such crime while they are far outside U.S. jurisdiction.
Trump and Hegseth are knowingly and deliberately undermining some of the most vital principles and safeguards of our own lives, liberty and property in our Constitution. For the first time in history, in the 1780's constitutions governing the conduct of all government employees were written and ratified by the People to turn public officials into public servants and to require the separation of legislative, executive, and judicial powers. All this and much more was done to protect the People from abuses of powers that had been granted or usurpations of powers that had not been granted by the People to our public servants.
In Federalist No. 47, for example, James Madison emphasized the following (and even more):
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.” “[T]he preservation of liberty requires that the three great departments of power should be separate and distinct.”
Madison quoted Montesquieu (in the Spirit of the Laws published in 1754) saying, "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers."
"The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. 'When the legislative and executive powers are united in the same person or body,' says he, 'there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner.' Again: 'Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.' "
With the foregoing in mind, our Constitution separated powers very carefully and emphatically. Our Constitution emphasized that no public servant was given any power to violate our Constitution. Article VI established that our Constitution was paramount as the "supreme Law of the Land," and it bound all state and federal public servants "to support" our "Constitution." Article II further emphasized that the president's powers were limited to those necessary to "preserve, protect and defend" our "Constitution" to "the best of" the president's "Ability."
Our Constitution (Amendment V) expressly and specifically commands that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."
Article III commands that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."
Amendment VI clearly commands that "In all criminal prosecutions, the accused shall enjoy the right to" a "public trial, by an impartial jury of the State and district wherein the crime shall have been committed."
The primary problem with the presumption or pretense that Article II somehow put all the powers of government into the hands of Trump is that it makes legislators, judges, grand juries and trial juries entirely irrelevant. Stated another way, Trump is unconstitutionally usurping the powers of legislators, judges, grand juries and trial juries. That is exactly what all the founders expressly opposed vehemently.
Although Trump is immune from criminal prosecution because of the recent Supreme Court Court, subordinates (including drone operators) who carry out his unlawful orders to murder civilians carrying drugs have a duty to refuse to obey and unlawful order and can be prosecuted if they fail to do so. Fat chance of prosecution by the Trump Justice Department, but what about the next administration?
To what what extent can international law fill the gaps? President Kamala sends a planeload of White House officials and Cabinet ministers on an "all-expenses paid trip to The Netherlands, one-way"?
I don't know how one can discuss this issue without even acknowledging the 2011 Libya intervention, which Harold Koh justified by essentially arguing the WPA is a blank check for the exercise of presidential discretion.
I am relieved that discussion of “taking the protest to the street” is not seriously considered as a remedy. My thought: do not lose your head and react in a way Trump wants you to react.
This is all horrifying. It just feels totally performative, totally brutal, I totally without any thought to the consequences. It also has nothing to do with the reasons Americans are buying these drugs, reasons the administration is totally uninterested in addressing
Stepping back from specific questions of legality, what are the implications going forward for the US and for the safety of Americans internationally? If we act this way, what's to stop another country from arbitrarily arresting or even murdering (oh, sorry, "killing extrajudicially...") US citizens they accuse of terrorism, drug trafficking or some other offense without evidence? Sure, the Trump administration could escalate or retaliate, but that is cold comfort to anyone caught up or killed in the mean time. Lawlessness begets lawlessness.
Sadly, I suspect that the murder of people on the high seas is just another attempt to distract Americans from everything else Trump is doing. Murder as theater in service of a wannabe dictator.
I think it's possible that, apart from the dubious and flawed excuses Trump has given for the attacks and murders in the Caribbean and Pacific as you described, his inner child simply likes showing off what he can do with his toy guns and boats, etc.. His secondary gain is that so far he is getting away with it.
Does the code of conduct applying to military personnel provide any basis for potential redress? Could the Judge Advocate General's office conclude that there is no legal basis for the use of military force and direct the armed forces to discontinue using these drone strikes?
Also, has there been any effort using FOIA or Congressional subpoenas to get the legal rationale for the Administration's actions here?
Excellent and to the heart of the matter with,
“Kentucky Senator Rand Paul was absolutely right to describe these strikes as “extrajudicial killings,” a term that has come to be used to refer to targeted uses of force by the state against specific individuals. But they’re even worse than that, for they are, near as I can tell, blatantly unlawful as a matter of U.S. domestic law—and a quickly spreading stain on whatever is left of the executive branch’s commitment to the rule of law.1”
Bringing back the failed "War on Drugs" with even worse reasoning and potentially more devastating consequences. MAGA, indeed.
Steve, this is more on topic for the tariffs case, but I posted this comment on today’s NYT David French-Emily Bazelon column. I’m honestly flabbergasted and think it’s time to talk about this:
Maybe the authors could at some point explain what the heck is going on with Alito. Why is he so transparently partisan? Why does he not see the obvious problems Trump is posing for the basic Constitutional order of separation of powers and checks and balances? Alito is going way beyond just supporting the Unitary Executive Theory. Doesn't he care about his legacy? He is completely un-self-aware. Seriously, it's mind boggling and begs a lot of questions.
Trump is, of course, immune by virtue of the SCOTUS decision, but how about Hegseth, Rubio, Miller and even Bondi???!!!
If these extrajudicial killings are illegal, is this a criminal matter or does it remain solely civil? If criminal, then this is precisely the kind of problem that Justice Sotomayor raised when the Court chose to grant complete immunity to the President for acts committed under his official duties. I think it would be hard to argue that these killings are not directly within the duties of the President, no matter their legality. So, while he may not have "shot someone on 5th Avenue," he has clearly done so on the high seas.
One way to look at SCOTUS's presidential immunity decision is that it was a lie, a devious deception to attack and undermine our Constitution by six judges whose first, foremost and constant duty is "to support" our "Constitution" (U.S. Constitution Article VI) and "support and defend" our "Constitution" against absolutely "all enemies, foreign and domestic" and "bear true faith and allegiance to" our Constitution (5 U.S.C. Section 3331).
No federal judge or court was delegated any power by our Constitution to grant the president immunity from prosecution for committing any crime defined by Congress. Article I delegated to Congress the power (and assigned the duty) to "make all Laws" that are "necessary and proper for carrying into Execution" absolutely "all [the] Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That necessarily means that Congress has not only the power, but also the duty, to "make all Laws" that are "necessary and proper" to govern all the president's men and all the president's powers.
Article VI emphasized that federal law that was "made in Pursuance" of our Constitution is part of the "the supreme Law of the Land" and all "Judges" everywhere under U.S. jurisdiction "shall be bound thereby." Article III emphasized that federal "judicial Power shall extend" no further than permitted "under this Constitution, the Laws of the United States, and Treaties."
The foregoing means that federal judges have the power (and duty) to adjudicate cases regarding claims that a federal law is not "necessary and proper" or not "in Pursuance" of our Constitution. As every SCOTUS justice is very well aware, judges have the power and duty to invalidate an unconstitutional statute, but they have no power to fabricate any exception to any statute that is "necessary and proper" and "in pursuance" of our Constitution.
As a result of the foregoing, another way to look at SCOTUS's presidential immunity decision is that it is essentially irrelevant. SCOTUS said that the president is absolutely protected (has absolute immunity) from prosecution for fulfilling his "core" duties, and he might have some protection (immunity) for performing "official" duties.
The president's "core" and "official" duties are limited to those emphasized by Article II. Article II (and the President's oath of office) prominently emphasized that the first, foremost and constant duty of the President always is (merely) to "preserve, protect and defend the Constitution of the United States" to "the best of" the President's "Ability." Fulfilling such duty clearly necessarily includes "tak[ing] Care that the Laws be faithfully executed." Clearly, every power of the president is subordinate, first, to the legislative power of the People (our Constitution) and, second, to the legislative power of our representatives in Congress. So if a prosecutor can prove that a president has violated his duties under Article II, then the president clearly can be prosecuted by laws enacted by Congress in pursuance of our Constitution.
Anyone who is ever played “6 degrees of Kevin Bacon” realizes you can probably get to millions of innocent people with 3 hops.
Thank you for shedding more light on how Trump's conduct is illegal and unconstitutional regarding the power to wage war. But it's at least as important to bear in mind one self-evident truth about Trump: he lies and lies and lies to pretend to justify what he's doing or wants to do. There is no good reason to take as true Trump's purported justification (war with Venezuela or an invasion by Venezuela).
Regarding this matter, it's most simple and straightforward to judge Trump and Hegseth as if they were on trial for murder and we were the jury. Federal law (18 U.S.C. § 1111) defines "Murder" as "the unlawful killing of a human being with malice aforethought." So we should think for ourselves about the substance of Trump's killings and his own admissions regarding those killings. We should think for ourselves about whether such killings are "unlawful." Our Constitution is paramount among the supreme law of the land, so any conduct that is unconstitutional (i.e., violates our Constitution) is necessarily unlawful (illegal).
By Trump's own public admissions, Trump and Hegseth are killing people outside U.S. jurisdiction for no better reason than that Trump is merely pretending to predict a future crime in a U.S. jurisdiction (mere purported drug smuggling). Nothing in our Constitution vested power in Trump or Hegseth to merely pretend to predict a future crime in a U.S. jurisdiction and summarily execute everyone they merely contend is guilty of such crime while they are far outside U.S. jurisdiction.
Trump and Hegseth are knowingly and deliberately undermining some of the most vital principles and safeguards of our own lives, liberty and property in our Constitution. For the first time in history, in the 1780's constitutions governing the conduct of all government employees were written and ratified by the People to turn public officials into public servants and to require the separation of legislative, executive, and judicial powers. All this and much more was done to protect the People from abuses of powers that had been granted or usurpations of powers that had not been granted by the People to our public servants.
In Federalist No. 47, for example, James Madison emphasized the following (and even more):
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.” “[T]he preservation of liberty requires that the three great departments of power should be separate and distinct.”
Madison quoted Montesquieu (in the Spirit of the Laws published in 1754) saying, "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers."
"The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. 'When the legislative and executive powers are united in the same person or body,' says he, 'there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner.' Again: 'Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.' "
With the foregoing in mind, our Constitution separated powers very carefully and emphatically. Our Constitution emphasized that no public servant was given any power to violate our Constitution. Article VI established that our Constitution was paramount as the "supreme Law of the Land," and it bound all state and federal public servants "to support" our "Constitution." Article II further emphasized that the president's powers were limited to those necessary to "preserve, protect and defend" our "Constitution" to "the best of" the president's "Ability."
Our Constitution (Amendment V) expressly and specifically commands that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."
Article III commands that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."
Amendment VI clearly commands that "In all criminal prosecutions, the accused shall enjoy the right to" a "public trial, by an impartial jury of the State and district wherein the crime shall have been committed."
The primary problem with the presumption or pretense that Article II somehow put all the powers of government into the hands of Trump is that it makes legislators, judges, grand juries and trial juries entirely irrelevant. Stated another way, Trump is unconstitutionally usurping the powers of legislators, judges, grand juries and trial juries. That is exactly what all the founders expressly opposed vehemently.
Although Trump is immune from criminal prosecution because of the recent Supreme Court Court, subordinates (including drone operators) who carry out his unlawful orders to murder civilians carrying drugs have a duty to refuse to obey and unlawful order and can be prosecuted if they fail to do so. Fat chance of prosecution by the Trump Justice Department, but what about the next administration?
Murder by another name.
Execution by the state is still murder.
To what what extent can international law fill the gaps? President Kamala sends a planeload of White House officials and Cabinet ministers on an "all-expenses paid trip to The Netherlands, one-way"?
I don't know how one can discuss this issue without even acknowledging the 2011 Libya intervention, which Harold Koh justified by essentially arguing the WPA is a blank check for the exercise of presidential discretion.
I am relieved that discussion of “taking the protest to the street” is not seriously considered as a remedy. My thought: do not lose your head and react in a way Trump wants you to react.
This is all horrifying. It just feels totally performative, totally brutal, I totally without any thought to the consequences. It also has nothing to do with the reasons Americans are buying these drugs, reasons the administration is totally uninterested in addressing
Stepping back from specific questions of legality, what are the implications going forward for the US and for the safety of Americans internationally? If we act this way, what's to stop another country from arbitrarily arresting or even murdering (oh, sorry, "killing extrajudicially...") US citizens they accuse of terrorism, drug trafficking or some other offense without evidence? Sure, the Trump administration could escalate or retaliate, but that is cold comfort to anyone caught up or killed in the mean time. Lawlessness begets lawlessness.
Sadly, I suspect that the murder of people on the high seas is just another attempt to distract Americans from everything else Trump is doing. Murder as theater in service of a wannabe dictator.
I think it's possible that, apart from the dubious and flawed excuses Trump has given for the attacks and murders in the Caribbean and Pacific as you described, his inner child simply likes showing off what he can do with his toy guns and boats, etc.. His secondary gain is that so far he is getting away with it.
Does the code of conduct applying to military personnel provide any basis for potential redress? Could the Judge Advocate General's office conclude that there is no legal basis for the use of military force and direct the armed forces to discontinue using these drone strikes?
Also, has there been any effort using FOIA or Congressional subpoenas to get the legal rationale for the Administration's actions here?