Leaked Document Justifies Boat Strikes as “Non-International Armed Conflict”

The Trump administration is waging a secret war against undisclosed enemies without the consent of Congress, according to a confidential notice that was sent to several congressional committees this week and obtained by The Intercept. It marks the most detailed explanation of the legal underpinnings offered by the administration for a series of lethal attacks on boats in the Caribbean that began last month.

President Donald Trump has decided that the United States is engaged in a declared state of “non-international armed conflict” with “designated terrorist organizations” or DTOs, according to the notice. It describes three people killed by U.S. commandos on a boat in the Carribean last month as “unlawful combatants,” as if they were soldiers on a battlefield. This is a significant departure from standard practice in the long-running U.S. war on drugs, in which law enforcement arrest suspected drug dealers as opposed to summarily executing them.

“The President directed the Department of War to conduct operations against [DTOs] pursuant to the law of armed conflict,” reads the notice. “The United States has now reached a critical point where we must use force in self-defense and defense of others against the ongoing attacks by these designated terrorist organizations.”

Trump has justified the strikes by asserting on social media that the United States is attacking “terrorists.” But the notice from the Department of War to the Congress committees marks a fundamental change in official policy, which states that Trump has unilaterally “determined” that cartels are “nonstate armed groups” whose transport of drugs constitutes “an armed attack against the United States.”

Sen. Jack Reed of Rhode Island, the top Democrat on the Armed Services Committee, told The Intercept that the Trump administration “has offered no credible legal justification, evidence, or intelligence for these strikes,”

“Drug cartels are despicable and must be dealt with by law enforcement. But now, by the President’s own words, the U.S. military is engaged in armed conflict with undefined enemies he has unilaterally labeled ‘unlawful combatants,’ and he has deployed thousands of troops, ships, and aircraft against them,” Reed told The Intercept. “Yet he has refused to inform Congress or the public. Every American should be alarmed that their President has decided he can wage secret wars against anyone he calls an enemy.”

Brian Finucane, a former State Department lawyer who is a specialist in counterterrorism issues and the laws of war, said the Trump administration was using sleight of hand to pass off its summary executions as an extension of the forever wars. 

“POTUS is giving himself a license to kill based on his own determinations and designations.”

“The notice tries to apply the legal framework that the U.S. relied upon for the ‘war on terror’ — self-defense following an armed attack plus hostilities in non-international armed conflicts — to unspecified narco-terrorists,” he told The Intercept. “The fundamental problem with that approach is that the facts do not support it. The U.S. has not suffered an armed attack. The report does not even identify which groups the U.S. is supposedly engaged in an armed conflict with. Some of them — like Tren de Aragua — almost certainly are not organized armed groups that the U.S. even could be engaged in an armed conflict with.”

Finucane continued: “To get around these fundamental problems, the administration relies on the President making both factual and legal determinations by sheer fiat. In doing so, POTUS is giving himself a license to kill based on his own determinations and designations.”

“The Trump administration is saying that one person — the president — now decides if the United States is going to war. And also, by himself, decides the reason,” said a government official familiar with the notice who spoke on the condition of anonymity.

“The Trump administration is saying that one person — the president — now decides if the United States is going to war.”

The notice to Congress cites Section 1230 of the Fiscal Year 2024 National Defense Authorization Act (50 U.S.C. § 1543a), a statute requiring reports to lawmakers about hostilities involving U.S. armed forces.

“The president does not have the authority to declare war and in claiming to do so Trump is eviscerating another constitutional power bestowed squarely on Congress,” said Sarah Harrison, who advised military leaders on legal issues related to human rights and extrajudicial killings in her former role as associate general counsel at the Pentagon’s Office of General Counsel, International Affairs. “This is one of the President’s most dangerous moves yet that could very well have devastating consequences abroad and at home.”

It repeats the administration’s earlier justifications for the attacks in the Caribbean but also includes new claims, including portraying the U.S. military’s strikes on boats to be part of a new and ongoing conflict rather than isolated acts of supposed self-defense.

The first announced U.S. airstrike on a boat in the Caribbean took place September 2 and killed 11 people, according to the Trump administration. U.S. officials have said that boat and another vessel targeted on September 15 had set out to sea from Venezuela. 

Referring to the second strike, the notice states that the “vessel was assessed by the U.S. intelligence community to be affiliated with a designated terrorist organization and, at the time, engaged in trafficking illicit drugs, which could ultimately be used to kill Americans.” It continues: “This strike resulted in the destruction of the vessel, the illicit narcotics, and the death of approximately 3 unlawful combatants.”

The U.S. military attacked a third boat on September 19, also killing three people. In each instance, Trump stated the attacks were against narco-terrorists or members of the Tren de Aragua drug cartel on their way to the United States.

The White House did not respond to repeated requests for comment by The Intercept.

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