President Trump has taken the counter-drug fight out of the realm of law enforcement and into the world of armed combat. In so doing, he may have fired the opening shot in an undeclared war on Venezuela.
The administration argues that 100,000 American deaths per year from cocaine and fentanyl overdose constitutes an existential terrorist threat, and this makes a boat allegedly smuggling illicit drugs a legitimate target for deadly military force.
In fact, he is changing domestic practice and acting in contravention of international law.
We write as the Former JAGS Working Group — military lawyers who, during our time in service, promoted, protected and enabled the world’s finest military. We have no problem with lethality, but only when used lawfully and for the right missions.
Since its inception and up to the present, the drug war at sea has been conducted with scrupulous attention to domestic and international law. Sovereignty of the vessel flag state has been respected. Action has been permitted only by flag-state permission or against stateless vessels. Use of force has been governed by Tennessee v. Garner and the Attorney General’s use-of-force policy.
Under this framework, there is no shooting a fleeing felon unless he poses an immediate threat. Deadly force is authorized only when needed in self-defense or to protect others. And in accordance with the Posse Comitatus Act, the role of military forces has been limited to detection and monitoring, with enforcement left to others. Finally, although not as a signatory, the U.S. has closely observed the Law of the Sea Treaty.
We have enjoyed many successes in the drug war at sea. We have interdicted incredibly large amounts of marijuana and cocaine. But an argument is now being made that the ongoing nature of the drug trade justifies more extreme measures. It is easy to presume that the pool of willing go-fast smugglers might dry up for fear of being killed, no matter how much money they are offered. However, transnational drug smuggling organizations have proven very adaptable and may well find replacement smuggling methods in short order.
Even under the most optimistic assumptions, there are grave risks in this strategy. Consider, for example, the shoot-down killing of American missionary Veronica Bowers and her daughter in 2001 by the Peruvian Air Force, enabled by CIA air bridge tracking. Summary actions using deadly force cannot be undone. Our current at-sea counterdrug efforts depend upon many international partnerships and more than 30 bilateral agreements which will be placed at risk.
And such a radical change in respected maritime practice of many decades should not be taken lightly. Undertaking an unprovoked war against a sovereign state in the hemisphere speaks for itself.
Historically, targeted killing of terrorists has been justified on the basis that they are engaged in armed conflict with the U.S., pose an imminent threat to American life, and are not amenable to law enforcement action. None of these apply to the Venezuelan boat destroyed last week. Nor does the Authorization for Use of Military Force passed by Congress in the wake of 9/11 apply.
But the more important question is whether this incident was a true counter-drug operation, or rather a provocation seeking a reason to go to war with Venezuela. If regime change or war with Venezuela is the underlying goal, that calls for a different discussion.
Congress should determine whether the non-judicial killing of 11 people and summary destruction of an alleged drug smuggling vessel was legal, wise, or in the long-term interest of the U.S. But more importantly, Congress must immediately ascertain and understand the administration’s true motivation and intent. Whether law enforcement, regime change or war, Congress needs to speak up. Based on what we know, we believe this incident was wrongly conducted. Congress must investigate, hold hearings, and set national policy going forward.
Vice Adm. John Shkor (ret.) served as commander of Coast Guard Atlantic Area, as chief counsel of the Coast Guard, as director of the Joint Interagency Task Force East and in the Office of National Drug Control Policy. Maj. Gen. Steven J. Lepper (ret.) served as deputy judge advocate general of the Air Force, deputy legal counsel to the chairman of the Joint Chiefs of Staff, the Air Force’s chief crisis communicator, and as a military judge. Rear Adm. William Baumgartner, (ret.) served as the Coast Guard’s judge advocate general and as commander, Seventh District, covering the Southeast U.S. and Caribbean Basin.
