Murder on the High Seas Part VI

Co-Hosts Tess Bridgeman and Rachel Goldbrenner are joined by Rebecca Ingber and Brian Finucane to discuss how the Trump administration’s campaign of lethal strikes against suspected drug traffickers in the Caribbean and eastern Pacific has escalated and evolved in the year since the strikes began. The conversation examines the administration’s legal justifications for the strikes, the potential for escalation to targets on land, and what the creation of Joint Task Force - Western Hemisphere could mean for the campaign’s future. 

This installment is part six of the “Murder on the High Seas” series, produced in collaboration with the Reiss Center on Law and Security. 

Show Notes:

• Just Security’s Collection: U.S. Lethal Strikes on Suspected Drug Traffickers, Operation Southern Spear, Operation Absolute Resolve   
• Jeremy Chin, Margaret Lin, and Aidan Arasasingham, Timeline of Boat Strikes and Related Actions (continually updated)
• Tess Bridgeman, Michael Schmitt, Ryan Goodman, and Brian Finucane, Key Questions on U.S. Killing Tren de Aragua Leader Inside Venezuela (June 15, 2026)
• Brian Finucane, “Did the United States just Bomb Ecuador?” (Mar. 13, 2026)
• Rebecca Ingber, The Trump Administration’s Theory of Constitutional War Powers: “The President Could Decide” (Mar. 2, 2026)  
• Edward Swaine, Can the U.S. Government Be Sued for Wrongful Death in a Caribbean Boat Strike? (Jan. 29, 2026)
• Tess Bridgeman and Brian Finucane, War Powers, Venezuela, Drug Boats, and Congress (Jan. 12, 2026) 
• Tess Bridgeman, Michael Schmitt, and Ryan Goodman, Expert Q&A on U.S. Military Action in Venezuela and Boat Strikes (Jan. 6, 2026)
• Michael Schmitt, Marko Milanovic, The International Law Obligation to Investigate the Boat Strikes (Dec. 15, 2025)
• Mark Nevitt, The Law on Targeting Shipwrecked Drug Traffickers: Expert Backgrounder (Dec. 11, 2025)
• Michael Schmitt, Ryan Goodman and Tess Bridgeman, Operation Southern Spear: Why the Crews, Drugs, and Boats are Not Targetable (Dec. 7, 2025)
• Michael Schmitt, Ryan Goodman and Tess Bridgeman, Unlawful Orders and Killing Shipwrecked Boat Strike Survivors: An Expert Backgrounder (Dec. 1, 2025)
• Daniel Maurer, Hypothetical Legal Review of Narcotrafficking Strikes (Nov. 18, 2025)
• Michael Schmitt, Marko Milanovic, and Ryan Goodman, The International Law Obligation of States to Stop Intelligence Support for U.S. Boat Strikes (Nov. 17, 2025)
• Brian Finucane, Dissecting the Trump Administration’s Effort to Circumvent the War Powers Resolution for Boat Strikes (Nov. 3, 2025)
• Rebecca Ingber and Jessica Thibodeau, Expert Backgrounder on War Powers Resolution 60-Day Clock for Boat Strikes Expiring Monday (Oct. 31, 2025)

Previously on “Murder on the High Seas”

• Tess Bridgeman, Rachel Goldbrenner, Rebecca Ingber, and Brian Finucane, The Just Security Podcast: Murder on the High Seas Part V (May 7, 2026)
• Tess Bridgeman, Rachel Goldbrenner, Rebecca Ingber, and Brian Finucane, The Just Security Podcast: Murder on the High Seas Part IV (Dec. 2, 2025)
• Tess Bridgeman, Brian Finucane, and Rebecca Ingber, The Just Security Podcast: Murder on the High Seas Part III  (Oct. 21, 2025, also available on YouTube)
• Tess Bridgeman, Brian Finucane, Rachel Goldbrenner, and Rebecca Ingber, The Just Security Podcast: Murder on the High Seas Part II — What We Know about U.S. Vessel Strikes One Month In (Oct. 7, 2025)
• Tess Bridgeman, Brian Finucane, and Rebecca Ingber, The Just Security Podcast: Murder on the High Seas? What You Need to Know about the U.S. Strike on the Caribbean Vessel (Sept. 9, 2025, also available on YouTube)

Transcript

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SPEAKER_04 0:06

Almost a year ago, the Trump administration began a campaign of lethal strikes against alleged drug traffickers in the Pacific and Eastern Caribbean, which to date has killed at least 227 people in 68 strikes. After a lull this summer, U.S. Southern Command has carried out two strikes in the past week. The most recent just this week, announced on social media, killed four people. A year in, why are these killings at sea still happening, especially if the operations aren't changing drug flows into the United States, which was their purported purpose? What could Congress do to stop them, aside from raising alarm bells, that this is a campaign of killings outside of armed conflict? And what should we make of what could be a planned expansion of the campaign onto land in several countries in Latin America? This is the Just Security Podcast. I'm your co-host, Tess Bridgeman, co-editor-in-chief of Just Security. And I'm joined today by co-host Rachel Goldbrenner, Executive Director of the REC Center on Law and Security at NYU School of Law. Thanks for joining us for our sixth installment of Murder on the High Seas.

SPEAKER_02 1:14

And with us today to discuss the latest developments, what to make of the campaign at its one-year mark, and what we might see going forward are Rebecca Ingber and Brian Fanukin. Rebecca is a professor at Cardozo Law School and co-director of the Florsheimer Center for Constitutional Democracy. From 2021 to 2023, she was a counselor on international law in the Office of the Legal Advisor at the U.S. State Department, where she had previously served as an attorney advisor. She's written extensively on matters of residential powers, international law, and national security. Brian Fanukin is senior advisor for the U.S. program at the International Crisis Group. Before that, he served for over a decade as an attorney advisor in the Office of the Legal Advisor at the U.S. State Department, where he advised the U.S. government on legal and policy issues regarding war powers and military force. Rebecca, Brian, and Tess are all senior fellows at the REST Center on Law and Security. So thanks to all of you for being here to mark this sober occasion. Let me start with a brief laydown of what's been the past year of this campaign, and then we'll turn to new developments and analysis. The U.S. military's lethal boat strikes against alleged drug traffickers began nearly a year ago on September 2nd, 2025. As of this taping, there have now been 68 announced strikes with 227 people killed and three known survivors. The boat strikes were initially intertwined with a U.S. pressure campaign on Venezuela, which culminated in the January 3rd, 2026 military raid on Caracas and President Nicolas Maduro's capture and rendition to the United States, where he stands trial today. We talked about that in a prior episode of this podcast. But the strikes continued at a steady clip throughout the spring, even after Maduro's ouster. Then we saw a recent lull over the summer. July was the first month since the campaign began without any announced strikes, notably following the devastating June 24th earthquake in Venezuela and the U.S. pledges for support in its aftermath, including assistance from the Pentagon. And most of August was quiet as well. But in recent days, the boat strikes campaign has resumed, with two different strikes killing six more people. The Southern Command strike announcements now identify the campaign as part of the recently announced Joint Task Force Western Hemisphere. And a recent report by the Office of the Inspector General puts the total costs of Operation Southersphere through June 2026 at $820.9 million. So that's a brief overview of the past year. Since we last met on this podcast, there have been some new developments in terms of who might be involved and where strikes are occurring. In some ways, we know less now than we did several months ago. So we wanted to devote some time to discussing at its one-year mark what's the scope of this campaign, which actors are involved in it, both within the US government and with respect to partners in the region, and what do they all hope to achieve? So on that, um let me turn to you first, Brian, with the primary question. Why are these strikes still ongoing? And when you're in, what is the objective?

SPEAKER_01 4:05

Well, thanks. It's great to join you all today. I think it's worth the step back to think about why the strike started in the first place. And they began last year due to convergence of interest within the Trump administration. One of the interests, as you alluded to earlier, was the pressure campaign against Nicholas Maduro. But that was not the sole interest. Um, and we've had recent reporting that suggests some of the other interests that are still relevant here. Um, some from um Maggie Haberman from her new book, and as well as some interviews she's given, uh, where she describes the videos being made of these strikes that are referred to within the administration as Hegstaff's snuff films, and they apparently are circulated as a source of entertainment and amusement for people in the administration. Uh separately, uh, there's reporting in the New York Times that they have weekly wins meetings at the or sorry, monthly wins meetings at the uh White House convened by Stephen Miller, and one of the greatest wins is the growing body count uh from these maritime strikes. Um these there's no indication these strikes represent even an attempt at serious counterdrug policy, nor is there any indication that they have stemmed the flow of cocaine in the United States. And they were never about you know stopping uh fentanyl, which is not uh traveling to the United States by sea.

SPEAKER_02 5:21

Okay, thanks for that. Um and Beck, why don't we turn to you to see if you can provide an overview of what are the main legal theories of the campaign um thus far that it targets these alleged drug traffickers at sea?

SPEAKER_03 5:34

Sure. So the administration has been, um, to my view, really attempting to take the post-9-11 playbook, which has um the US military using force against a terrorist group, in that case Al-Qaeda, that attacked us in 9-11, killing 3,000 people, um, and now apply it to an amorphous array of criminal groups that are engaging in drug trafficking and related crimes. And to do this, they have to make a number of leaps. They have to claim that we've been attacked, that there's been an armed attack that gives rise to the use of force and self-defense. They need to claim that they're targeting organized armed groups within a military command structure that are engaged in active hostilities against us. Um, and they have to say um that we're in an armed conflict with these groups. And they need to find members of these groups that are part of that command structure whom they can claim um the uh the the authority to target on that basis. And on each of these elements, they have uh grossly failed to make the case. There have been no attacks on the United States, akin to 9-11, of course. There's been no military like attack on the United States. Um, but the administration has tried to make the claim that drug trafficking and immigration are themselves armed attacks. Um, and they've made these claims in a variety of um of fora, including in litigation in courts and the AEA litigation that we'll I think we'll talk about, um, and to Congress in trying to justify these post-strikes. Um but there are, there has been no attack. There are no organized armed groups that are engaging in hostilities with the United States, because there are no hostilities. Um but the administration has stated to Congress and and otherwise that the United States is in a non-international armed conflict with these groups, and that again parrots the legal theory that was used in the conflict with Al-Qaeda. We also know that the administration is keeping on list a secret list of what it calls designated terrorist organizations or DTOs. Um, and this is a term that's entirely made up by the administration. It created the term, um, presumably it has created standards that it's using to apply it, but we don't know that. Um, and then it keeps a secret list of these organizations that it itself designates, and then it claims the authority to target and kill on the basis of this designation that it is secretly made. Um, and this is one of the places where the administration uh claims can sometimes diverge. Uh, they've said variously that the individuals on these boats, um, and these are individuals recall that they may or may not be fishermen paid to take a job. These are not necessarily like high-level officials in these organizations. We have no reason to believe that they are. In fact, um evidence suggests the contrary. Um they've said at times that these individuals are targetable, but they've also suggested at times that the drugs themselves are the target. Um, and as an aside, if this were an actual armed conflict and these drugs were being sold to sustain a different war effort, then there is a debate over whether the drugs themselves would be targetable and the United States is taking the position that they would. But we don't actually have to wade into the weeds of that debate because there is no plausible argument whatsoever that the purpose of this drug trafficking is to fuel some other ongoing armed conflict where the real action is. Um that's just that doesn't really pass the laugh test. Um the administration wants to argue that the drugs are the armed conflict, um, and that also has no support in the law. Um it's it's I would say virtually it's a virtually universal view among experts that there is no armed conflict here, that the law of armed conflict does not govern, um, and that instead this is really um a series of murders as a matter of domestic US law and as a matter of international law, extrajudicial killings. And according to many experts, um these may well be crimes against humanity given the systematic um nature and the clear government policy that's at issue here.

SPEAKER_02 9:27

Okay, thank you. Um you you mentioned the the designated terrorist organizations uh label that has been used, but notably it has not been used in the last two announcements um by Southcom of the most recent strikes. Do you take that as significant or just an accident? If it were to be significant, what would it potentially connote?

SPEAKER_03 9:48

It's hard to it's hard to know um because honestly, the administration has been all over the map. Um sometimes they've stated they they've targeted the vessels, sometimes they've stated they've targeted the groups, um, sometimes they they use sort of broad generalist framing like narco-terrorists, sometimes they say DTOs, which again is a designation that they created. Um and often you can trace a significant difference in what they're saying just based on whether the announcement is coming from DOD or from the White House. Um and that suggests to me, uh, you know, I do think that that says something to us. And what it suggests is that we lack a robust interagency process here to nail down a clear legal theory and a clear policy or even clear statement of what's happening. Um, or it may reflect a loosening of standards. It may reflect that some strikes are based on less evidence than others. It's hard to say. But I will say, if it does reflect a loosening of standards, if the idea is that at times they don't use the DTO designation because they're actually they don't have the evidence to suggest that this is that this is a DTO, um, but let's recall this is this designation is itself a total fabrication of the administration. Um it's implied, it's applied entirely using its own discretion. And so if the reason that they haven't stated it is that they don't feel comfortable sticking that label on one of these strikes, that suggests that they can't even meet the exceedingly low bar that they themselves have set.

unknown 11:10

Yeah.

SPEAKER_04 11:11

And just a footnote to that, I think that's exactly right. Um, we know that there is a DOJ Office of Legal Counsel memo on the boat strikes that has not been released in redacted form. A declassified version of that has not been released publicly, unlike the Venezuela um operations that we talked about in a in a prior episode. So the question of whether they actually have a solid legal rationale that they themselves even believe is, I think, a live one here. Um, and as we've discussed before on this podcast, even if we end up seeing that OLC memo, it's not going to be like an aha moment where all of a sudden there's a legal theory that makes sense. I think what we'll just be seeing is is how bad the reasoning actually is, but they haven't been willing to let us see that to date.

SPEAKER_03 11:55

And that may well be why they haven't let us see it, right?

SPEAKER_02 12:00

Okay, so that was a very helpful laydown of sort of where we've been in the law. And I think there will be other legal issues that we'll talk about with respect to some of the new facts. Um to get those out, um, Brian, let's come back to you and look at some of the newer developments that we've been seeing in um in the campaign. So, first of all, can you tell us what do we know about this recently announced creation of a joint task force Western Hemisphere? Um, does it suggest that this campaign's in fact expanding? Um, and if so, what are the legal implications, if any?

SPEAKER_01 12:30

So, based on some of the conversations I've had, it sounds as if this may signal a greater emphasis on joint operations with other Latin American countries, um states that belong to the so-called counter-cartel uh coalition. Uh, it's not clear exactly what these joint operations might entail. There could be a spectrum of U.S. support or U.S. involvement in joint operations on the territories of other states, everything from you know intelligence sharing, you know, providing you know ISR support to actual U.S. direct action, airstrikes, U.S. boots on the ground engaged in in combat. We don't know. And they um, but the precise details are going to be extremely important in uh assessing what the legal implications are, whether the U.S. is actually participating in some new armed conflict, which is theoretically possible, whether it implicates the war powers resolution, or whether it implicates the U.S. criminal laws, as we've been discussing with respect to the boat strikes. Um, notwithstanding the announcement of this new um you know joint task force, we have seen a you know a resumption of the maritime strikes, right? Um we and we've seen two after uh what was basically a two-month hiatus from from June um uh to August that coincide with uh U.S. military efforts in the um humanitarian relief following the Viswell and uh earthquake. But now we have seen two strikes um in the last week, one in the in the Caribbean and one in the eastern Pacific.

SPEAKER_02 13:57

And we've also seen some boat strikes that aren't explicitly part of this campaign, right? So, what should we make of recent reporting that um back in January and March there were several unattributed strikes near the Galapagos Islands off the coast of Ecuador against um three different fishing uh three different boats? Um, for these, no one has claimed responsibility, uh, which is in stark contrast, I think, to the publicly claimed campaign that Southcom um regularly announces that we have been talking about that I described in the laydown at the top. So um, what do we know or what more would you want to know about those actions? Who's responsible for them, um, whether they're related to Operation Southern Spear? Um, and then after discussing that, if you can tell us what um similarly, as you just done, what you think the sort of salient legal questions are that arise.

SPEAKER_01 14:47

Well, I mean, the bottom line is something very squirrely is going on with these uh three maritime incidents off the Galapagos Island. You know, there was a an incident in in January involving an attack uh upon a fishing vessel from Ecuador, uh, and the disappearance of that vessel appeared appeared to have sunk, and the continuing disappearance of eight crew members from that vessel. And then there were two subsequent uh incidents in March against two separate vessels, in which the vessels, uh, according to their crews, have been subsequently interviewed by both uh by um human rights organizations and journalists, um, where the vessels were attacked by quadcopter drones, which disabled the vessels, and then the crews were able to disembark and board uh you know uh a vessel that showed up on the scene. Um, there are reports of um uh men aboard this, you know, these vessels vessels that appear wearing sort of khaki uniforms, speaking English. Um, the the surviving crews that were then taken um that disembark and then taken aboard this new vessel. They're ultimately transferred to El Salvador. Yeah um and from where they were then flown back uh from El Salvador to Ecuador. Um the Washington Post and New York Times have both written lengthy, detailed uh stories looking into this in the last in recent weeks. Um notable that the U.S. Defense Department has uh disavowed any involvement um in these three incidents, and there were only three, they stopped after March. Um they've done that both publicly and and they've also disavowed it to and um denied responsibility to members of Congress that I've spoken to about these incidents. Um the modus operandi of these incidents is very different from the over DOD strikes we've been seeing. Of course, DOD has been posting videos of its attacks on the internet. That's not true for these three incidents off the Galapagos. Um, and it's notable that in the two March incidents, you know, the the there were quadcopter drones used, not the sort of you know, weapons used that we see with the with the DoD strikes. And they doesn't appear that the uh crew were um subject to legal tarding, which has been the been the case for the for the overt DOD strikes. Um we I don't think we know if we're competent confident with confidence who is responsible. Um the Washington Post reported that uh the CIA is conducting these uh we're conducted these operations um subject to you know covert action. Um I haven't seen anyone else report that yet. That's certainly a possibility, but I think that um it is notable that they did stop um in in March. So whoever was responsible for them may well have deemed them to be a failure or fiasco and and pulled the plug on them. Um there's no indication from any of the reporting that there were any drugs aboard any of the vessels that were involved in these incidents. Um and so you can draw your own conclusions from that.

SPEAKER_04 17:32

Yeah, thanks, Brian. I think that's it's interesting. And and if there is a covert action program or was a covert action program, it might not be made public for some time, um, if if not for decades, but it does mean that at a minimum there are certain procedures internally that would have had to be followed. Congress would have had to be notified. So, you know, there is some potential for oversight, even if if not um in the in view of the public. Um, but you know, this full episode that that you're describing, I think Beck, the way you laid down the kind of use of the post-9-11 legal playbook and the ways it in fact doesn't work here, but the administration is trying to use it nonetheless. And Brian, the way you're kind of talking about the mission creep potentially that we might see to this joint task force Western Hemisphere. Um, I think is an important, an additional post-9-11 parallel here to the targeted killing policy, just totally apart from the legal rationale, but just sort of that once the policy gets institutionalized, it takes on a life of its own. Um, and it's very difficult to rein in. It's very difficult to reevaluate from first principles because the bureaucracy is spun into action. There are X sords, you know, there are people detailed to certain offices whose job it is to collect certain intelligence to feed it back in, right? There's a strike, there's as Brian was laying out in this case, kind of an ops tempo that's expected from leadership, right? That's expected from Stephen Miller, from the White House, from Hegseth, that, as Brian was saying, might, you know, want to see these um actions for very grisly purposes of their own that have nothing to do with the underlying policy rationale. And slowly but surely, even that very flimsy, if it existed at all, you know, policy rationale at the outset, which was something akin to drug intradiction on steroids, kind of gets lost. And you have this um what our colleague Kate Brandon has called a zombie mission, right? And I think this looks like a zombie policy at this point. We already are getting DEA and Pentagon reporting that it's not stopping drug flows, as Brian was talking about. So then, you know, then why, right? Um, and I think that kind of um ability of a program or a campaign like this to get institutionalized within the government, both because of bureaucratic inertia and also because of top-down pressure is something that is very familiar and should be a flashing red light, you know, to those of us who've who've been seeing it play out in the counterterrorism sphere in the 25 years after 9-11. Um but I'd be curious, um, Beck or Brian, your kind of reactions to whether you see parallels to that kind of pathology of how these kinds of campaigns get institutionalized.

SPEAKER_03 20:11

Yeah, I I think it's a genuine concern. Um we've all seen how, and we experienced it, we lived through it, um, how dramatically um what was once called the global war on terror expanded in the now 25 years after 9-11, um, even through presidents who had personally campaigned on dialing it back, those very presidents actually expanded it, um, uh arguably. Um and I I actually think it it it's not just the policy, but this happens with the law as well. Um so you know, whether it be the politics, the entrenched bureaucracy, the status quo bias, the path dependency, um, it can be very hard to turn back executive powers once they have been claimed, if the other branches do not themselves clamp down.

SPEAKER_04 20:55

Yeah, and then it becomes the default upon which other actions and other legal rationales are based. And it and it goes time. And it just becomes part of the institutional memory, including for the courts and Congress.

SPEAKER_03 21:06

Yep.

SPEAKER_01 21:07

Um this administration is is is is trying to do GWAT on the narcos in Latin America, right? And uh I think in some ways the fact that the campaign began last year at sea represented a compromise and consolation because where they the ultimate prize is doing direct action in Mexico, which is obviously extremely fraught uh diplomatically uh in terms of US Mexican bilateral relations. Uh, and so doing it see posed further uh fewer challenges. Uh and uh and but they wanted to expand on land. So we've seen that uh with two strikes thus far, one in Ecuador, one in Venezuela. The the recent announcement of this joint task force may herald additional strikes. But this this is the the the administration is marketing this, and I think some people inside you know conceive of it this way. The Secretary of Defense talked about this way. Know as just the next stage in the in the US war and terror, that these supposed um DTOs designated terrorist organizations, as Henseth call talks about them, are the al-Qaeda of our hemisphere.

SPEAKER_04 22:11

Right. And that's where you get this, you know, this other parallel, right? So in the immediate post-9-11 after aftermath, it wasn't just Afghanistan, of course, where the United States sent military forces, um, but the the true campaigns kind of in earnest um outside of the Afghanistan-Pakistan theater started in the years that followed with Yemen, with Somalia, and you know, expanded from there. And we now see the kind of global footprint. And it said sounds like that's the parallel you're making, Brian, that um this is the new kind of kernel expanding into something that could be, you know, a hemisphere-wide um effort before uh before it gets reined in, depending on what Congress does, which we'll turn to later. Um, and and of course, whether the administration itself um chooses to change tack. Um, but let's talk more about some of those strikes on land because I do think it raises, in some ways, some of the same questions, but then a different bucket of questions. And you alluded to this, Beck, when you talked about the Alien Enemies Act litigation. But let's just start with um one of the ways in which this campaign may be morphing. So obviously at the beginning, we talked about how these boat strikes were part of this pressure campaign against Venezuela. There was a huge naval presence off the coast of Venezuela, huge sanctions campaign. It was all geared towards the ouster of Maduro, which of course the United States unlawfully accomplished. Um, and we've talked about that. Um, but now that Maduro has been ousted and there's um, you know, a government in place that appears to be very pliant to the US's wishes, um, we are seeing a different kind of uh cooperation with Venezuela. Um, and the the killing of TDA's leader, that's Trendé Aragua, the only um gang or cartel that really ends up ever getting named in some of the strikes the United States has taken. Um, we've seen now the United States engage with Venezuela in the killing of TDA's leader inside Venezuela on land. Um, and this raises a lot of new questions. A couple of us, uh, me and Brian uh and Ryan Goodman and Mike Schmidt put together actually a whole list of questions if folks are interested. It's linked in the show notes called Key Questions on U.S. Killing Trained Anagua Leader Inside Venezuela. But um, you know, Beck, maybe you can talk us through kind of what happened. Was it framed as a law enforcement mission? Was it framed as part of this so-called armed conflict that you explained before does not exist? Um, and uh then we can kind of get into the legal side after you lay down kind of what we actually saw happen.

SPEAKER_03 24:47

Yeah, and we don't have a lot of information about it. I mean, so one of the hallmarks of this administration is that we learn a lot of these things um first from social media, um, including the president's own Truth Social account. And this was one of those occasions. So on June 12th of this year, he announced on Truth Social that the US military, Southcom, had killed the leader of this criminal gang, um, Trenda Aragua. Uh, this is uh Nino Guerrero in in Venezuela. Um, and so that was a significant distinction from these strikes, these boat strikes. And he stated that he had done so in coordination with quote, with our friends in Venezuela. Um and so, not that I would doubt the factual record contained in the truth social posts, but we did get further confirmation um from Southcom from Commander uh General Frank Donovan that this was a joint operation that was taken in coordination with the Venezuelan security forces, but we didn't really get a lot more information than that.

SPEAKER_04 25:45

And so we know that um both both sides, because we we did also, I guess, see the press release from the Venezuelan side and they mentioned cooperation as well. They seem to describe it kind of more in law enforcement D kind of terms. They're not really using armed conflict or or um, you know, law of armed conflict terminology about the operation. But what do you think um the legal view might be on the US part in terms of how the how they justify this kind of operation? Um yeah.

SPEAKER_03 26:16

Right. And there's two sets of, you know, for us, um, given that we're acting um against an individual in another country, and and also for Venezuela, there's two different sets of um, there's two different legal frameworks that apply here that and both boxes need to get checked, the domestic law and the international law. So even if a state um even if even if an act particular action was legal under the state's laws, um, they'd still need to be legal under international law, right? And so um so Venezuela is dealing with Venezuelan domestic law and as well as um human rights law, international human rights law, and we are dealing with all three because we're also dealing with US um domestic law. So um, you know, first of all, given that the administration has been gauge engaging in scores of targeted killing of people on the basis that were in an armed conflict with these groups, um, and in the case of the boat strikes, they've provided no evidence that the individuals were part of the organization of these groups, even if the vessels themselves were carrying drugs. Um, we don't know if they are just fishermen who took a job or if they're um and it and it doesn't look likely that the that any of those individuals are high-level um individuals inside this organization. Um so given all of that, one would assume that their legal theory, if it if it carried water, would continue for the targeted killing of a high-level person inside this group. Um the administration's theory is that we're in an armed conflict and this is the leader of that group. So whether or not Venezuela is operating under a different legal theory of its own, that could well be the US legal theory to the extent they had one. And if we were actually engaged in an ongoing armed conflict, that person, a high-level person of the leader of the group, would be akin to a combatant in that group under the US theory. Of course, since we are not, um, these killings are again merely summary executions of criminal suspects, and we call that murder. All right. The fact that this is happening on the territory of another state adds another wrinkle. Um, as we've discussed in lots of these podcasts before, states cannot use force against the territory of other states. That's enshrined in Article 2.4 of the UN Charter. That's perhaps, I would say, the backbone of the modern world order, um, perhaps the breaking backbone of the modern world order. Um but if the state consents to the use of force on its territory, then it's uh generally not a use of force in violation of two four. Now, first, one might query whether a government that the United States has imposed on another state after forcibly removing its de facto head of state can truly consent to that same government, the United States, in use of force in its territory. But even putting that aside, it doesn't remove the other fundamental issue, which is that these are not combatants in a group that's in an armed conflict with the United States. And therefore, while yes, the United States engages in law enforcement operations in conjunction with other states, when it does so, the proper framework for those operations is domestic criminal law and as a matter of international law and human rights law. And under those frameworks, the use of lethal force can only be used as a legal, as a last resort in cases of necessity to protect against an imminent threat, such as responding to fire, right? An airstrike from above simply would not qualify.

SPEAKER_04 29:20

Yeah. And so we'd we'd need to know a lot more. And I I hope Congress will engage in more oversight, but also, you know, the that um, you know, we'll see IGs or others kind of asking questions exactly along those lines. How did this operation actually go down? Um, if it was, in fact, just a pre-planned airstrike from above, as you said, Beck, that that doesn't pass the test under domestic or international law, because we're not in an armed conflict. Um, and whether Venezuela thinks they're in an armed conflict with TDA, transitions us to the next question for you, since you've written about this extensively, Beck, um, the Alien Enemies Act cases. So folks are likely familiar with the fact that the administration very early on started trying to deport Venezuelan nationals under this theory that the Alien Enemies Act, uh, which can only be invoked when there's been an invasion or an incursion by a foreign government, right, gave them the authority to round up and deport Venezuelans by virtue of affiliation with TDA. Um, the affiliation itself, of course, was pretty loose in the way this was all defined, and there's a lot else that's wrong with this. And Beck has written about this extensively, as have others at just security. But there's one kind of key thing about this that you just really can't make up how hard it is to reconcile with what we were just talking about with the killing of TDA leader Guerrero, um, is that if the United States um is to use the Alien Enemies Act to remove folks based on their affiliation with TDA, it was because, according to the U.S. government, TDA was acting at the direction of the government of Venezuela, because you need a foreign government to have staged an invasion or incursion in order for the Alien Enemies Act to even apply. So the US was making this kind of really out there theory that TDA was acting at the um behest of the Venezuelan government, who was in fact almost sort of part of it for purposes of the AEA litigation. So now, if Venezuela is itself cooperating with the United States to kill TDA's leader, where does that leave us in the AEA litigation?

SPEAKER_03 31:29

Right. To the extent there was any argument at all, it does seem like it should unravel at that point or should unravel at the point at which we seed it. We unseated the very leader they were claiming directed, um directed the supposed the supposed invasion, right? So um, you know, and it's worth thinking about why the Enemy Aliens Act requires that the invasion occur on by it by another state, right? It's because we are it it Congress gave the president the ability to round up and detain and deport um nationals of that state. So it really doesn't make sense in a context in which you're not talking about um military actions stemming from another state. Um and so the government's argument was that Maduro was directing TDA to invade the United States and that invasion itself was occurring through um immigration and drug trafficking. Right. So there's a number of factual claims and mixed questions of law and fact here that the courts would have to accept the president on um in order to accept these claims. But at this point, you know, even if those had been accepted, um at the point at which Maduro is unseated, that should theoretically unravel the entire argument. We're no longer at war with Venezuela if we ever were. Um and counselor for petitioners have argued that. Um and that argument is, as you say, I think only stronger now when we have the US government claiming that it's engaging in operations in in coordination with the Venezuelan government. The Venezuelan government, you know, yet again, that we that we have basically imposed on the Venezuelan people. Um so we'll have to see how these arguments play out in these cases if the government continues to try to press its case, which it may well not. It may it may well decide not to appeal the cases that it's lost and allow the case that was mooted to just um fall by the side. And and so it's possible that these cases will sort of peter out. But to the extent we see intensive litigation, I there's no question that this is gonna have to be part of those arguments.

SPEAKER_04 33:26

Yeah, and surely, and this, you know, one last question for you along this um kind of um set of issues, Beck, is kind of how this fits into the way the executive branch is lowering these questions more broadly. So, you know, we have um we've talked about a series of different kinds of military operations now, right? We've talked about the boat strikes, which are untethered from any armed conflict. You know, Brian has talked about the strikes off the coast of Galapagos that are unclaimed by the United States, but sure look like perhaps uh failed covert action program. We don't know. Uh we've seen strikes in Ecuador and now in Venezuela. Um, and you know, the kind and then of course the the big raid on Venezuela that was an unlawful use of force against foreign state, but also resulted in the capture of Nicolas Maduro and his wife, brought to the United States. And you wrote Beck about that operation and specifically the DOJ Office of Legal Legal Counsel memo that was released in, you know, as as the um executive branch's legal justification for that operation, um, in a piece that I recommend everyone read. It's going to be linked in the show notes. Uh, it's called the Trump Administration's Theory of Constitutional War Powers, the President Could Decide. Um, and I think what you just said about what courts would have to buy for the Alien Enemies Act litigation to proceed in terms of all these presidential assertions, where we are with the Guerrero killing and where we are with the boat strikes in general, it seems like, and especially this use of this made-up term DTOs that we were all talking about, it seems like all that's left is the president could decide across kind of all of these different types of military action that have some kernels in common here. But um, where do you think we are now seeing kind of where we are with these latest strikes on land, their planned expansion? Um yeah, would be curious for your thoughts on that.

SPEAKER_03 35:28

Yeah, and I should mention um to those who are just listening that um the test used air quotes for the president could decide. And the reason for that is that it was actually that's a direct quote from the um from the OLC, the Office of Legal Counsel's memo justifying the the Maduro operation. Um so one of the biggest issues, I think, before the courts in these cases, and frankly, before government lawyers, um, before, you know, OLC as it as it thinks about how to lawyer lawyer this these cases, um, is whether and how much to accept the president's version of reality as fact. Um and this is coming to a boiling point across a range of issues, not just in the national security and war space. Um and I'll just say just security um has been doing extraordinary work monitoring how courts have been grappling with the presumption of regularity, which is heavily related to this, you know, how much to assume the government is acting under normal procedures and in good faith, above board when it acts. Um but in all of these cases, in the AEA cases, in the boat strikes, um uh in the operation to use force in Venezuela to capture and detain Maduro himself, in all of these cases, the legal theories are turning on facts and mixed question of law and facts that the president is where the president is declaring his own reality. Um so has there been an actual invasion? Has there been an attack? Are these actors being actually directed by Maduro? Those are all factual questions, all of which I will say that the that the um that the OLC memorandum um kind of uh touches on and in many cases um concedes that they don't either don't have the information or that the evidence they have is to the contrary, right? Um so these are factual questions, but there's a lot of law that's mixed in. So does drug trafficking qualify as an armed attack? Is immigration an invasion? Um how much to simply accept the president's narrative? Um, those are questions that the courts are grappling with. And they're also questions that the president's own lawyers have to grapple with. So the the memorandum that you mentioned from OLC on war powers, um, that was its justification for the Maduro operation. And my guess is the secret memoranda that we have not yet seen, the memorandum on Iran, the memorandum on the boat strikes. Um but this memo, which is available online, concedes a lot in what it does not say. It does not say Venezuela attacked us, it does not say Maduro was leading an invent invasion into the United States or even leading TDA. And it it does um not even say that the operation is lawful. Instead, it says the president could make the determination necessary to order the operation. And this, I think, stems from um a directive that has come down from the president. Um, and this is and it's evidenced in an executive order. The the executive order was basically saying that um that it is somehow um mutinous behavior to question the president on questions of law, in fact. The president to decide, right? The president gets to decide and it trickles down, right? And so I think it leads to a culture of fear and also suggests to these lawyers that it's not their job to make a legal conclusion. It is their job to sort of parse out maybe what the different kinds of ways you might argue it are. And those are kind of that kind of legal argumentation we learn in law school. I mean, this particular memorandum would not necessarily get a good grade in any law school class I've ever been in or taught. Um, but but lawyers learn how to make arguments for both sides, right? Um, but OLC has long taken the position that they are acting as almost another court inside the executive branch, and thus we do not need the other branches to check the president quite so heavily because we have OLC. Um and that just simply, you know, it might maybe never held up, but it simply does not hold up anymore in a context in which um OLC's idea of lawyering is to say, well, here's what the president would have to decide, and it's up to you, you know, over to you, Prez.

SPEAKER_04 39:24

Yeah. And it's a rule of law crisis that is ongoing if if these offices that are charged with actually making these legal determinations are no longer doing so, are simply abdicating, even if they were told by an executive order that that's their job now, right? There's there's a real question whether um a political appointee who signs up um to do that um is abdicating their responsibility. And and you know, it may not be that all offices within the executive branch are doing that, but we are certainly seeing that from OLC when we see a memo like the one you're talking about.

SPEAKER_03 39:53

I agree. It's an abdication of responsibility, and it also lays bare the fact that the other branches have long relied on these internal checks um to allow them to sit back a little bit. Um and I would like to believe that um that this is a splash of cold water in the face. Yep.

SPEAKER_01 40:13

Yeah, I would just say as well that the uh you know current context underscores the stakes here. Yeah. The stakes are literally life and death, right? It is the dividing line between lawful military operation and premeditated killing work.

SPEAKER_02 40:27

Yep. And I do think it's an open question how much oversight there will be in the judicial branch. We've talked about court cases as though that were a robust um additional check. That is not necessarily the case. Maybe this is such a stark um episode that it will um increase that scrutiny, or maybe the sort of underlying um presumption of regularity uh breakdown will contribute to that as well. But um I think the main actor that we're all talking about, and that has been raised several times, is Congress. Um Brian, I know that you follow this pretty closely. Um can you talk to us about what Congress is doing, what Congress could do? There's oversight of these more um known and overt-announced campaigns. There are some of the facets that we've been talking about that have less um uh information available. So, where is Congress on this?

SPEAKER_01 41:22

Mostly MIA. Uh, Congress has not been doing much on this, although it could. And just for every to refresh everyone's memories, you know, the executive is, you know, the Trump administration administration is usurping Congress's control over the use of military force in conducting these strikes. And it is conducting these strikes in defiance of congressional statutes that forbid things like murder on the high seas, conspiracy to commit murder outside the United States, and the Uniform Code of Military Justice, which makes murder a crime. Okay, so um Congress's authority is being flouted here already by the executive branch. Now, if Congress wanted to, uh could have been holding a robust um oversight up to now, you know, hearings, conducting um transcribed interviews behind closed doors, trying to get answers, trying to pry loose from the administration, this still secret OLC memorandum that provides the permission slip for this killing spree. That has not been happening. Um, but we have a new Congress that's gonna be coming in next year. Uh and it may be the case that the Democrats control one or both houses of Congress. And so the Armed Services Committees in particular uh will have an opportunity to dig into uh the boat bombing campaign to get answers about how it came about, how it was executed, and who was involved. And that sort of oversight, if done properly, could lay the groundwork for provincial accountability to ensure so like this does not happen again. And then on the sort of substantive legislative side, both now and in the next Congress, Congress could, of course, pull the plug of this whole thing through funding restrictions, both on the boat bombing and the expansion of this onto land, uh, unless the administration comes to Congress and gets an affirmative authorization to conduct a new military campaign, because this is up to now completely lawless.

SPEAKER_04 43:09

Yep. And I think it's it's helpful to think about there's kind of the domestic rule of law aspects here that we were talking about, this this being a rule of law crisis domestically. It's also important to kind of keep in mind what's going on in terms of international law and in terms of international reactions. And I think all of us have said and written before uh in various ways that you know the the rule of law holds not just based on whether somebody breaks the law, even the most powerful actors, uh, but what the reactions are when that happens, right? So in domestic law, murder is sometimes committed. The question is how do we as a society react when that happens? Same too with international law, right? International laws will sometimes get broken. This has always been the case. The question is um, how do the rest of the actors in the system, and in this case, it's mostly other states, right? How do we? Respond. And I'm wondering, Beck, if you can tell us what you think we're seeing in terms of whether other states are up to the task in terms of kind of responding in a way that that is rule of law bolstering here or whether we're seeing something else.

SPEAKER_03 44:18

Yeah, there's been a real mix. And frankly, I think it um the world reaction has been a lot quieter than one might expect when a state suddenly goes on a on a killing spree. So several states in the region have responded favorably at this at this point, either because they're um either because they approve or because they're seeking um to curry failure, perhaps with the administration. Many others in the region have had negative reactions. Um several states have curtailed intelligence sharing in some way. Um, the UK, Canada, the Netherlands, Colombia, Mexico has long condemned the strikes, but we are not seeing the kind of coordinated major push toward a unified condemnation, like for example, what we saw in the lead up to and in the wake of the um the Russian further invasion of Ukraine in 2022. And um and that was an example of a time of exactly what you're saying, where um many said, wow, is this the end of the world order? We've got um this incredible uh example of violation of the UN Charter happening um right before our eyes. And my view was okay, but look at the unified world reaction and condemning it. Um that suggested to me, no, right? We have we're not seeing the end of Article 2.4 of the UN Charter. Um But we're not seeing that now, and and it's worth thinking about why. Um you know, it might be we might have to think about the fear that these states have of how Trump would react, the fear of trade wars, other forms of coercion. But I also think it's worth thinking about the leadership that was required to unite um world responses at that time, right? I mean, the Biden administration sent cabinet secretaries around the world gathering allies to present a unified front in the face of Russian aggression. And um, it wasn't easy, uh, especially given the long shadow that the Iraq war had cast on US intelligence, among other things, right? Um, this was a major and I think largely unheralded foreign policy coup of the last administration. Um now that kind of US leadership is obviously impossible to imagine now, um, not least because we are the bad actors in this circumstance. And so the question is who is going to play that role of getting the rest of the world on board to stand up for the rule of law?

SPEAKER_01 46:49

I don't have an encouraging response to that, actually. My my reaction to that is that the U.S. played a leadership role, as you lay out with respect to Russia's invasion of Ukraine, and there's no obvious substitute. And I don't think that there even a collection of states, coalition of states is likely a substitute because of the um collective action problems involved. And as you say, you know, there is the states have a very real fear of retaliation um from the United States, from this administration, uh, and at the same time, they they need things from the United States, uh, getting back to Russia. You know, there are they have their own security concerns that extend beyond uh the U.S. military actions that they have to be uh you know aware of and tend to. Uh so but I think it puts other countries in a in a roll bind that they might quietly suspend or curtail cooperation, but they're not going to be willing to publicly condemn the United States necessarily or you know, try to form some coalition to push back against the United States.

SPEAKER_04 47:45

There's one else, yeah. There's one interesting wrinkle. Sorry, just to add one more thing here, which is the nature of the rule being violated and kind of um perhaps ironically, because these strikes are happening at sea, there's no 2-4 violation going on. Um, so it's not the charter itself that's implicated, unless it's it's the strikes on land that we're talking about, and and there's a lack of consent or and or otherwise an underlying um lack of international legal basis. So I think there's kind of a an apples to oranges issue here where it is easier to be quiet when it's not a two-for violation.

SPEAKER_03 48:20

They have to be standing up for human rights law as opposed to standing up for the UN Charter.

SPEAKER_04 48:25

That's right. And they'd have to be essentially saying, yeah, what Trump is doing is what Duterte was doing. He was in the Hague. This other guy should be in the Hague too. I mean, that's that's that's the comparison. Um, and so I think there's kind of a um quietly cutting off intelligence sharing, arguably, is states doing what they are required to do under international law, which is not cooperate with these ongoing violations, which is not to aid or assist them. Um, but getting states to actually come out and use their voices, I think the the question of would it um you know, would it change the US government policy and in what way and would it shore up the rule of law? Um, maybe states are are coming out in a different place on that question um than when it comes to 2-4 and Russia invading its neighbor, you know, in the middle of Europe.

SPEAKER_02 49:11

I mean, this is a very different point, but I also think that um one thing that we've been discussing is the real dearth of information about the strengths. I mean, we know the basics and we can make legal um analysis and conclusions from that that should spur action on the part of states. But there is some kind of visceral information about who the people are when the strikes you know are undertaken. We don't really know on the basis of what. Um there's just there's a lot unknown that I think makes it harder to kind of uh rally against. And that may be what is happening within the United States as well, and particularly when the other branches are not um conducting their sort of constitutional responsibilities in in oversight and scrutiny. We don't have um any sort of internal pushback that can be echoed um outside, not that we don't have any, but that it is less than you might expect given um the sort of uh novel nature of this undertaking.

SPEAKER_03 50:08

I think that's right. And I think it allows the administration to run with their narrative, which is that these are, you know, that's why they're using language like narco-terrorist.

SPEAKER_02 50:17

Right. Well, you this is a little bit more of a big picture discussion, which is I think where we should end this conversation. Um, at our one-year mark, we've talked about what has happened and also the ways in which this campaign may be changing or morphing. Um, so with all of your brains in one place, it would be great to hear from you about what you think um are the biggest questions in your minds as you're looking ahead um to the future, potentially this near chapter of this campaign. Maybe Beck, we can start with you, um, and then Brian and Tess if you want to close with any thoughts.

SPEAKER_03 50:52

Um Darn, I can't just glom on. So no, I'm skipping. Um Yeah, I I am extremely concerned going forward about how entrenched these strikes and legal theories are going to be. This this um is a follow-on to what Tess was speaking to earlier. Um there is an entire national security bureaucracy that is growing up around these strikes inside the United States government. Um and simultaneously, um, I think it's worth thinking about how much of the deep-seated rule of law culture in the US military um that we all experienced when we were in government has been eroded and what will it take to rebuild it. Um so both of those things at once are pretty potent through. Um and so that all of that, in my view, could be a really significant hurdle to unraveling all of this. Um a future president could simply stop the strikes, sure. Um, but my guess is that we've only begun to see the tip of the iceberg in terms of the legal and policy architecture that is building up just generally around this military approach to drug traffic and even to immigration itself.

SPEAKER_02 52:02

Yeah, if I could just add to that, actually, I know I said Brian next, but I think um part of that is also maybe what I was talking about before with in addition to the erosion within the executive branch of the um guilty to to the law is this innerring on the part of the public um to the same thing that uh we would certainly be surrounded by images of something that's so um latently unlawful and see this little um outcry. So I I do worry about that as well, how to rebuild inside, but also how to rebuild outside, what to do when things like this happen and what tools are at the disposal of the sort of demos to um object.

SPEAKER_01 52:43

So I mean I'm gonna go back to two statements that are made to me by people within the U.S. government with visibility uh on these operations and future operations. The first is that the strikes, bow strikes will continue until Congress stops them. The other is that the White House, the White House wants to do U.S. direct action in Mexico, and they predict that it will happen before the end of this administration. And so my questions are will Congress stop it? Will Congress stop the bow strikes? And will they stop the administration from trying to do its own version of the war on terror in Latin America, including in in Mexico? And secondly, going back to your points, Beck and Rachel, will Congress begin the process of meeting out accountability to establish that this killing spree is unacceptable. There will be consequences if people participate in it. And this country will try to ensure that this never happens again. Those are my questions.

SPEAKER_04 53:39

Yeah, I can be the one who gloms on because I agree with all three of you. Um I think the the that kind of first point of the longer this goes on, but also the more people who are involved just in the bureaucracy, the harder it is to turn off, um, the harder it is um to actually talk about accountability. And we saw this with the torture program, right? We saw people saying, but there was no LC memo. And, you know, the legal cover was provided, and I was doing my job and I was following orders. Um and we saw a real reluctance on the part of administrations that followed um to actually say no, no torture isn't always has been illegal under domestic and international law, and there needs to be accountability. Um, will we see that for murder? Um, and when it's being carried out in in broad daylight, literally broadcast on social media, as compared to the covert CIA program that was the the cause of the torture and rendition, I think that's a a big set of questions because it's in in a way harder to grapple with because it is so public. We have to, the the present is the crime scene. Um, and that is uncomfortable for people. Um, it's uncomfortable for people on the outside and uncomfortable for people on the inside. Um it's something that we're really gonna have to grapple with. So one of the things that I'm keeping my eye on to answer your question, Rachel, is will we see this country being willing to use some of the tools of transitional justice that are gonna be needed to actually grapple with these things? Are we gonna see, you know, Congress set up a commission that says, you know, to lower level folks, um, in exchange for telling your truth, you will not be prosecuted? Um, are we gonna see some of the most senior level people who absolutely bear the most responsibility held criminally liable, you know, to the extent they can be, unless they're pardoned? Um, those are the kinds of questions that I think we're really gonna need to get at if we're not gonna give up on the rule of law entirely. Um, because this is kind of this is it. If if we don't have the rule of law when it comes to accountability for murder, um it's it's hard to see what's left of it. Um, so I think it's it's important that we start thinking really concretely about that set of questions now is how are we gonna handle it internally and externally for the more and more people who are gonna have been involved by by nature of the fact that it's still ongoing one year on and potentially expanding.

SPEAKER_02 56:05

Okay, well, thank you all for um getting into the weeds and also taking a broader view about what's at stake. Um, I always hope at the end of these that I will not see you again in this context, but um, we will certainly be tracking the developments of this campaign um and meeting again if it's needed to talk about what's happening and what it means.

SPEAKER_04 56:28

Yeah, thank you all for joining us. Uh, I will say in closing that this episode was co-hosted by me, Tess Bridgman, and Rachel Goldbrenner, uh, cross-posted by Just Security and the Recenter on Law and Security. It was produced by Daniel Hojnaki and edited by Pooja Shaw. Special thanks, of course, to Rebecca Ingber and Brian Fanukin, our guests as ever. You can listen to installments of one through five of Murder on the High Seas, wherever you get your podcasts, or watch them on Just Security's YouTube channel. This episode is also part of Just Security's collection called U.S. Legal Strikes on Suspected Drug Traffickers, linked in this episode's show notes. And with that, thanks very much.