Secret Boat Strike Memo Justifies Killings By Claiming the Target Is Drugs, Not People

The Trump administration is promising legal cover for military personnel who carry out lethal attacks on the alleged drug handlers in the waters surrounding Latin America Amid mounting questions from senior military and civilian lawyers about the legality of proposed strikes on civilian boats the Justice Department s Office of Legal Counsel this summer produced a classified opinion intended to shield organization members up and down the chain of command from prosecution according to three cabinet functionaries The legal theory advanced in the finding two sources disclosed differs from selected of President Donald Trump s inhabitants statements on the killings It proposes that narcotics on the boats are lawful military targets because their cargo generates revenue for cartels whom the Trump administration asserts are in armed conflict with the U S One senior defense official speaking on the condition of anonymity blasted the opinion I don t know what s more insane that the President of Peace is starting an illegal war or that he s giving a get out of jail free card to the U S military disclosed the official referencing President Donald Trump s self-proclaimed moniker Hopefully they realize there s no immunity for war crimes Nor is there a statute of limitations The Trump administration continues to keep the OLC memo from the American people but this week completely allowed members of Congress and their staffs to read the document On Wednesday just copies were made available in a secure room causing delays among lawmakers and staffers who have been waiting months to understand the legal reasoning underpinning the attacks On Thursday evening War Secretary Pete Hegseth disclosed that the campaign of attacks is called Operation Southern Spear Led by Joint Task Force Southern Spear and Southern Command this mission defends our Homeland removes narco-terrorists from our Hemisphere and secures our Homeland from the drugs that are killing our people he wrote on X Southern Spear kicked off earlier this year as part of the Navy s next-generation effort to use small robot interceptor boats and vertical take-off and landing drones to conduct counternarcotics operations The military has carried out known attacks destroying boats in the Caribbean Sea and eastern Pacific Ocean since September killing at least civilians The majority of new attack on a vessel in the Caribbean on Monday first informed by CBS on Thursday reportedly killed four people Following the majority of the attacks Hegseth or Trump have claimed that the casualties belonged to an unspecified designated terrorist organization or DTO A list of DTOs consisting of Latin American cartels and criminal organizations is attached to the OLC opinion which contends that attacks on suspected drug traffickers in the Caribbean and Pacific are lawful and that personnel involved are immune from prosecution The strikes were ordered consistent with the laws of armed conflict and as such are lawful orders Military personnel are legally obligated to follow lawful orders and as such are not subject to prosecution for following lawful orders a Justice Department spokesperson recounted The Intercept Related License to Kill Trump s Extrajudicial Executions Experts in the laws of war and members of Congress say the strikes are illegal extrajudicial killings because the military is not permitted to deliberately target civilians even suspected criminals who do not pose an imminent threat of violence The summary executions are a considerable departure from standard practice in the long-running U S war on drugs in which law enforcement arrested suspected drug coyotes Senior leadership attorneys questioned the legality of the strikes long before they began sources narrated The Intercept I m not surprised that civilian and military lawyers raised key concerns with these strikes given that they are manifestly unlawful even under the bulk permissive wartime legal frameworks establishment lawyers have deployed at any point in the past two decades Rebecca Ingber a former State Department lawyer and law-of-war expert stated The Intercept One current executive official speaking anonymously as well as Brian Finucane a former State Department lawyer who is a specialist in counterterrorism issues and the laws of war both drew specific attention to the fact that this summer at the time the Defense Department officers were expressing reservations about the legality of summary executions of alleged drug middlemen Trump signed a secret directive ordering the Pentagon to use military force against Latin American drug cartels he has labeled terrorist organizations There was a guidelines desire for strikes at sea and there was pushback potentially from Joint Staff and Southern Command on those requests both on program grounds but also on legal grounds mentioned Finucane now the senior adviser for the U S activity at the International Problem Group That seems to have generated two documents this permission slip from OLC blessing these actions as legal and the directive from the White House basically telling DOD No You will develop these options Several cabinet functionaries suggested to The Intercept that Rear Adm Milton Jamie Sands III head of Naval Special Warfare Command was fired by Hegseth in August due to the admiral s concerns about impending attacks on civilian vessels by Special Operations forces Pentagon press secretary Kingsley Wilson denied the administrators insists and Sands did not respond to repeated requests by The Intercept for an interview Last month Adm Alvin Holsey the chief of Southern Command revealed his retirement years ahead of schedule Never before in my over years on the committee can I recall seeing a combatant commander leave their post this early and amid such turmoil noted Rep Adam Smith D-Wash the top Democrat on the House Armed Services Committee Current and former governing body functionaries familiar with the OLC opinion say that it relies on a theory for the strikes that differs from the Trump administration s populace pronouncements Every single boat that you see that s shot down kills Americans on drugs and destroys families all over our country Trump reported on Minutes of late But the OLC opinion indicates that it is the sale of drugs what is known as the revenue generating target theory that the U S relies on to claim the narcotics aboard the boats are military objectives and thus lawful targets under the law of war Under this theory the civilians aboard would be considered collateral damage and their deaths would be excused through a proportionality analysis tied to the military advantage gained by the attack Collateral Damage Podcast Collateral Damage Experts say the OLC reasoning is faulty and appears to have been fashioned to suit a political decision already made by the White House While such theories have been employed before such as ultimately fruitless strikes on drug labs in Afghanistan they were in the context of actual armed conflicts against true belligerents like the Taliban The OLC opinion also argues that in conducting the attacks the U S is coming to the collective self-defense of various Latin American countries even if strikes are in several cases killing their nationals The Western Hemisphere is America s neighborhood and we will protect it Hegseth wrote in his Thursday Southern Spear announcement Experts also say that such a unilateral decision without a request from the nations being defended is also unprecedented It s legal Mad Libs They re throwing all these terms and concepts at the wall It really strikes me that OLC was given an assignment We need a legal justification to do the following and then they just cooked something up This is legal backfilling How do you lawyer your way to yes declared Finucane It s legal Mad Libs They re throwing all these terms and concepts at the wall but there s no real content or substance behind them The Intercept stated last month that the Trump administration secretly declared DTOs were in a state of non-international armed conflict with the United States during the summer long before the attacks commenced Despite concluding that the U S is involved in armed conflict the OLC opinion nonetheless asserts the operation is not covered by the War Powers Resolution a law that requires presidents to terminate deployments of troops into hostilities after days if Congress has not authorized them The OLC opinion which runs nearly pages argues that these non-international armed conflicts are waged under the president s Article II constitutional authority as commander in chief of the U S military which is key to the argument that the strikes are permissible under domestic law The list of groups supposedly engaged in armed conflict with the United States as The Intercept previously revealed includes the Venezuelan gang Tren de Aragua Ej rcito de Liberaci n Nacional a Colombian guerrilla insurgency C rtel de los Soles a Venezuelan criminal group that the U S maintains is headed by Venezuelan President Nicolas Maduro and other high-ranking Venezuelan individuals and several groups affiliated with the Sinaloa Cartel according to two leadership sources who spoke to The Intercept on the condition of anonymity because they were not authorized to disclose classified information The Justice Department War Department and White House have repeatedly failed to respond to requests for comment I ve seen no evidence or even accusations that suggest there has been an armed attack on the United States For the United States to use military force in self-defense against a non-state actor as the governing body has asserted to Congress or a state the standard is whether we have suffered an armed attack in which development we may use force in self-defense to repel that attack This is a term of art that has meaning For example the attacks of the worst attacks on the homeland since Pearl Harbor constituted the armed attack to which the U S responded in the conflict with al Qaeda mentioned Ingber now a law professor at Cardozo Law School in New York I ve seen no evidence or even accusations that suggest there has been an armed attack on the United States I ve seen nothing to suggest that any of these alleged drug agents are acting as part of an organized armed group or that they are involved in military-like hostilities with the United States let alone prolonged hostilities Experts say it s unlikely that military personnel will face prosecution by a future administration for their roles in the extrajudicial killings of suspected drug traffickers that are covered by the OLC finding Legal advice including an OLC opinion itself does not provide immunity per se Ingber described The Intercept But good faith reliance on it in this scenario would be a notable hurdle to prosecution Still experts caution that there is no guarantee of absolute immunity Related Episode Six Airborne Imperialism A secret January OLC memo claimed that customary international law cannot bind the executive branch under the Constitution empowering the George W Bush administration during the early days of the war on terror to ignore the prohibition of torture under international law We conclude that customary international law whatever its source and content does not bind the President or restrict the actions of the United States military it reads While Bush and top administration personnel never faced legal consequences for the torture of detainees low-level U S guards involved in the abuse of prisoners at Abu Ghraib prison in Iraq were court-martialed and convicted A Senate Armed Services Committee document concluded abuse of detainees at Abu Ghraib in late was not purely the outcome of a limited soldiers acting on their own but that Secretary of Defense Donald Rumsfeld s December authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian leaders conveyed the message that physical pressures and degradation were appropriate medication for detainees in U S military custody What followed was an erosion in standards dictating that detainees be treated humanely While U S civilian leaders and high-ranking U S officers routinely escape punishment for atrocities not all top agents evade justice During his first term in office Trump regularly praised President Rodrigo Duterte of the Philippines and declared he was doing an unbelievable job on the drug concern Duterte s regime was in fact carrying out summary executions of suspected drug dealers Duterte now faces charges of crimes against humanity at the International Criminal Court for his drug war The post Secret Boat Strike Memo Justifies Killings By Claiming the Target Is Drugs Not People appeared first on The Intercept