License to Kill: Trump’s Extrajudicial Executions

The United States has executed 21 people over the last month in targeted drone strikes off the coast of Venezuela. The Trump administration has so far authorized at least four strikes against people it claims are suspected “narco-terrorists.”

The strikes mark a dark shift in the administration’s approach to what it’s framing as an international drug war — one it’s waging without congressional oversight.

“There actually could be more strikes,” says Intercept senior reporter Nick Turse. This week on The Intercept Briefing, Turse joins host Akela Lacy and investigative journalist Radley Balko to discuss how the administration is laying the groundwork to justify extrajudicial killings abroad and possibly at home.

The Trump administration’s claims that it’s going after high-level drug kingpins don’t hold water, Turse says. “Trump is killing civilians because he ‘suspects’ that they’re smuggling drugs. Experts that I talk to say this is illegal. Former government lawyers, experts on the laws of war, they say it’s outright murder.” 

Trump has repeated claims, without evidence, that a combination of immigration and drug trafficking is driving crime in the United States. It’s part of a story Trump has crafted: The U.S. and the international community are under siege, and it’s his job to stop it — whether by executing fishermen or deploying the National Guard on his own people. And while the latest turn toward extrajudicial killings is cause for alarm, it’s also more of the same, says Radley Balko, an investigative journalist who has covered the drug war for two decades and host of the new Intercept podcast, Collateral Damage. 

“The notion of collateral damage is just that: this very idea that, when you’re in war, there are some who can be sacrificed because we have this greater cause that we have to win or this threat we have to overcome. And these people that are being killed in these incidents, they’re collateral damage from the perspective of the U.S. government because Trump clearly doesn’t care,” Balko says.

“There are a lot of parallels between what Trump is doing with immigration now and what we saw during the 1980s with the drug war. There was an effort to bring the military in,” Balko says. “This idea that Reagan declared illicit drugs a national security threat — just like Trump has done with immigration, with migrants — this idea that we’re facing this threat that is so existential and so dangerous that we have to take these extraconstitutional measures, this is a playbook that we’ve seen before. It’s a playbook we saw with drugs. It’s the same thing we’re seeing now with immigration.”

Turse adds, “Since 9/11, U.S. counter-terrorism operations have consistently eroded respect for international law, and it’s left Americans pretty much inured to the idea of targeted killings by U.S. forces from Afghanistan to Somalia. And I’m not sure that people see a difference between what’s been done for the last almost quarter-century as part of the war on terror and what we’re seeing today.”

Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen.

Transcript

Akela Lacy: Welcome to The Intercept Briefing, I’m Akela Lacy. 

The United States military attacked another boat in international waters near Venezuela, according to an announcement by Defense Secretary Pete Hegseth late last week. It’s the fourth reported strike the Trump administration has authorized against alleged narco-traffickers. 

Donald Trump: Combatting this sinister enemy, we have to put the traffickers and cartels on notice, and we’ve done that. And we’ve put them — a lot of them, we’ve called them a terrorist organization, which is actually a big thing to do. 

DT: In recent weeks the Navy has supported our mission to blow the cartel terrorists the hell out of the water. You see that?

AL: Through these extrajudicial actions, reminiscent of the U.S.’s covert drone war, the U.S. government has killed at least 21 people. The latest escalations represent a remarkable and illegal turn in U.S. drug war policies. One in which, without evidence and due process, suspects are now simply executed. 

Reporter: Are you preparing to take strikes against drug gangs in Venezuela, sir?

DT: Well see what happens with Venezuela. Venezuela has been very dangerous with drugs and with other things. 

AL: Trump is not just rewriting the rules of the drug war, he’s shredding the Constitution’s most fundamental principle: the requirement that Congress, not the president, has the power to declare war.

DT: I’ve also designated multiple savage drug cartels as foreign terrorist organizations along with two bloodthirsty transnational gangs… 

AL: Meanwhile, over the last nine months the Trump administration has used that same rhetoric to unleash federal agents — donned in full tactical gear — on the American public to push its mass deportation agenda. And he has deployed roughly 35,000 troops across the country to support that effort. 

How did we get here? Well, over the last half-century the U.S. has been fighting the so-called war on drugs that built the machinery and the legal protections for militarized police we’re now seeing the Trump administration deploy both internationally and in communities across the country. 

A new podcast series from The Intercept, out this week, called Collateral Damage examines the enduring ripple effects of the war on drugs, and the devastating consequences of the bipartisan effort to build a massive war machine aimed at the public. One that is now in the hands of Donald Trump.

Joining me now is the creator and the host of the show Radley Balko, an investigative journalist who has been covering the war on drugs for more than 20 years.

Welcome back to the show, Radley. 

Radley Balko: Thank you. Good to be here.

AL: We’re also joined by Intercept senior reporter Nick Turse who has been covering the Trump administration’s lethal strikes of alleged drug boats in the Caribbean and the deployment of U.S. troops across the country. 

Nick, welcome to The Intercept Briefing. 

Nick Turse: It’s great to be here. Thanks so much for having me.

AL: And just a note, we’re speaking on Wednesday, October 10 

Radley, we’ll start with you. The U.S. military strikes of alleged drug boats in the Caribbean that began in September appear to be the first actual formation of the Trump administration’s approach to fighting the “war on drugs.” How far of a departure are Trump’s actions when it comes to these strikes and his posture towards Venezuela compared to how the U.S. has traditionally waged its war on drugs?

RB: There are some common themes from previous foreign policy drug endeavors. The Coast Guard has long intercepted boats in international waters that they suspect of drug trafficking.

One of the episodes of Collateral Damage, of the podcast that we focus on the case of a Christian missionary and her daughter who were in a plane over Peru. The Peruvian air force in conjunction with CIA contractors shot down this plane, but they’d been doing this for years with Peru and other Latin American countries.

In this case it made international news and we had congressional hearings because the people on board were white missionaries from Michigan. But this idea of extrajudicial executions, when we’re talking about overseas anti-drug operations, that part isn’t so new. I guess in this case, it’s not Venezuela sinking these boats with the assistance of the CIA outside of Venezuela waters.

This is the U.S. military acting on its own without any input, in fact, over the vocal opposition of the country where these people are from. It’s definitely a departure. There are some common themes, but it’s definitely taking everything to a whole new level in terms of executive power and acting with impunity.

AL: Nick, let’s back up just a little bit. Can you tell us more about the strikes in the Caribbean? What do we know about the people on board and what was being transported on these boats?

NT: So the United States has carried out, as you said, at least four attacks on alleged drug carrying boats in the Caribbean in recent weeks with at least two of the vessels originating from Venezuela. There actually could be more strikes. President Trump seemed to suggest this over the weekend, but notably, the Pentagon refuses to give me a total number. It’s one of the many details they’ve tried to keep secret and I’ve been working to expose. 

To be clear, these are drone strikes. They’re conducted by elite U.S. commandos. And they’re targeting supposed drug boats. The president often says that they’re carrying fentanyl. That’s likely not the case. If there are drugs on these boats. And these are the types of vessels that used to be interdicted by the Coast Guard. Our self-styled Secretary of War Pete Hegseth announced the fourth strike last week saying that “four male narco terrorists” — that’s a quote — were killed. But he offered no other details on exactly who they were. 

And our colleague Matt Sledge actually dug into this question: Who’s on these boats? And he found that the crews of these types of drug smuggling vessels were in the words of one federal judge, “completely unsophisticated, desperately poor fishermen or peasants” who he said are recruited into the drug trade.

The prison sentences back that assessment. Since 2018, such smugglers received on average an eight-year prison sentence. So we’re obviously not talking about drug kingpins here. The difference now is that instead of eight years of prison, the sentence is death.

RB: This idea of going after very low ranking people in these organizations is also not at all uncommon. I actually talked to a federal public defender — or contract public defender a couple months ago — who’s been doing this work since the eighties, early eighties. She told me she had many, many, many clients, more than she could count, who were people who basically [were] cleaning staff or janitors in Columbia where U.S. agents — DEA [and] other U.S. officials — had gone and arrested them in their home countries, extradited them into the U.S., [and] tried to get them to give people up the ladder. Most of the time they couldn’t because they weren’t high ranking. And then they would get these five or six year sentences and then they’d be deported as soon as they were released. Like she said, this was a very common tactic throughout the 1980s and early 1990s. So we’re adopting the worst practices over the last 30 or 40 years, and then pushing them even further.

AL: Right. And it’s reminiscent of the strategy that we’re seeing both with the National Guard and with ICE deployments creating this justification for immense use of militarized police forces and extrajudicial drone strikes because of this presupposition of this amorphous crime threat, which again, is not necessarily based on fact. 

The news of the latest strike came as the administration was also drafting language to justify its actions to Congress, which you reported on Nick. Can you tell us more about this confidential notice? And is it paving the way for the administration to unilaterally — without the consent of Congress — invade Venezuela?

NT: Sure. I obtained this confidential notice that was sent to several congressional committees last week, and it offers the most detailed explanation of the legal underpinnings offered by the administration for this series of lethal boat attacks in the Caribbean. After stonewalling congressional leadership for weeks, Pentagon lawyers held a meeting with the key staff and then offered up a memo — a notice — that explained that President Trump decided unilaterally that the United States is engaged in a state of what they called “non-international armed conflict,” which makes little to no sense.

AL: I’m sorry, what, what does that mean? What does that actually mean?

NT: Yeah it’s a very good question and one that neither the Pentagon nor the White House seems to have an answer for. Again, they call it a NIAC or a “non-international armed conflict,” even though they are at the same time saying they’re attacking Venezuelan drug boats in international waters. 

RB: Who aren’t armed at least from what we know right, haven’t been armed.

AL: Right. 

NT: Exactly.

AL: They’re armed as [in] describing the United States in this situation, I assume.

NT: They’re the only armed belligerent in this. And they are in this state of non-international armed conflict with what they call “designated terrorist organizations” or DTOs. And they’ve been pushing this idea of DTOs for a couple weeks now in classified briefings to Congress. 

We actually exposed the use of this designation a few weeks back. It’s an extremely vague phrase, which has previously appeared in government publications, but it lacks a clear definition. And one defense official that I spoke with called the label “meaningless.” And it appears to be so. And for weeks the Trump administration has justified these strikes by asserting on social media that it’s attacking terrorists. 

But this notice from the Department of War to Congress offers something more. It’s a legal rationale and an explanation of official policy. Trump has, according to the notice, unilaterally determined that cartels are “nonstate armed groups,” whose transported drugs constitute an “armed attack against the United States.” The notice describes, for example, three people killed on a boat in the Caribbean last month as “unlawful combatants,” as if they were soldiers on a battlefield. 

This is a significant departure from what is at least supposed to be a standard practice in the long running U.S. war on drugs. Typically law enforcement arrests suspected drug dealers as opposed to summarily executing them. If you distill it all down, basically, the Trump administration through this notice admits that it’s waging a secret war against undisclosed enemies without the consent of Congress. 

So Trump is killing civilians because he suspects that they’re smuggling drugs. Experts that I talk to say this is illegal. Former government lawyers, experts on the laws of war, they say it’s outright murder.

RB: Not to shamelessly plug the podcast, but—

AL: That’s what we’re doing.

NT: Yeah, please do.

RB: But the notion of collateral damage is just that: this very idea that when you’re in war, there are some who can be sacrificed because we have this greater cause that we have to win or this threat we have to overcome. And these people that are being killed in these incidents, they’re collateral damage from the perspective of the U.S. government because Trump clearly doesn’t care. They joke that they might be fishermen who are just trying to earn a livelihood, which is nauseating.

And then even if they were working for the cartels, from the respect of the cartels, they’re also collateral damage. I mean, cartels don’t care about these people, right? They can find more fishermen that they can pay to smuggle the drugs for them. 

Nick has touched on a lot of this, every single part of this, every single justification for it is just transparently false and ridiculous and an insult to our intelligence. No fentanyl comes to the U.S. from Venezuela. Most of these boats, it’s not clear that they were even coming to the U.S. I know that one was supposed to be going to Trinidad. They aren’t armed. They presented no threat to the U.S. military. We don’t have the death penalty for dealing drugs in the United States as much as Trump would like there to be one.

We don’t even get a significant amount of illegal drugs from Venezuela. Most fentanyl that does come into the U.S. comes through U.S. citizens at the border. So every single reason or justification that they are laying out for these attacks is just, it’s transparently ridiculous. There’s no evidence for any of it.

AL: Are people buying this? I get the sense that the reaction to these strikes, at least in circles of people who are paying attention, is obviously, this is patently ridiculous. But are people buying these arguments?

NT: I think since 9/11, U.S. counter-terrorism operations have consistently eroded respect for international law, and it’s left Americans pretty much inured to the idea of targeted killings by U.S. forces from Afghanistan to Somalia. And I’m not sure that people see a difference between what’s been done for the last almost quarter-century as part of the war on terror and what we’re seeing today. Presidents Bush, Obama, Biden, and Trump have all undermined or ignored the rule of law by conducting extrajudicial killings and by killing civilians without consequence.

And I think that’s left us in the place we are today where people hear that the United States took unilateral action and killed suspected so-called narco terrorists, and they don’t see it as fundamentally different from killing a terrorist in Yemen or Somalia.

RB: There was a report a couple weeks ago that Stephen Miller was the person who had, I don’t know, encouraged or was overseeing these attacks. And that makes perfect sense. And to the extent that, do people care about this? I think you can ask that question about a lot of the policies that Miller’s overseeing, which is, what they are banking on, is that most of white middle class America is not going to bother to look into this or not bother to verify their claims. 

When Trump started going after immigrants, people seeking refugee status from Venezuela, when he revoked their protected status, claiming that we were at war with Venezuela, claiming that all these people were Tren de Aragua, Trump’s entire 2024 campaign was basically foreigners are bad, right? When he was asked about his housing policy, his housing policy was we’re going to deport a bunch of people and that’s going to make more housing available. When he was asked about inflation, it was, we’re going to deport a bunch of people and somehow that’s going to make prices go down, right? Everything was about hating foreigners. And so I think they’re banking on the fact that people don’t care. 

That’s not really an answer to your question about whether people do or don’t. I haven’t seen much polling on this. I hope they do. I hope that the reaction that we’ve seen to sending people to CECOT.

AL: Right. CECOT is the maximum security prison in El Salvador that Trump was sending Deportees to.

RB: Right. So I do think there was a significant public backlash against that. I hope we eventually see that here. But you know, again, to go back to the podcast, it took killing white Christian missionaries from Michigan for there to be outrage and headlines and congressional hearings. So unfortunately, I think as long as they’re killing impoverished Venezuela fishermen, it’s going to be hard to get the American public to care

AL: Radley, we actually want to play a clip from Collateral Damage about this.

Richard Nixon: To the extent money can help in meeting the problem of dangerous drugs, it will be available. This is one area where we cannot have budget cuts because we must wage what I have called “total war” against public enemy No. 1 in the United States: the problem of dangerous drugs.

Radley Balko [narrating Collateral Damage]: The modern drug war began during President Richard Nixon’s administration and, like Trump’s fight against undocumented immigration, it was predicated on false claims designed to stir up fear and anger, particularly among white, middle- and low-income voters.

Richard Nixon: It is time for an honest look at the problem of order in the United States.

AL: How has the legacy of the war on drugs led us here?

RB: I think there are a lot of parallels between what Trump is doing with immigration now and what we saw during the 1980s with the drug war. So there was an effort to bring the military in to fight the drug war. Both Congress and the Reagan administration wanted the Pentagon conducting drug raids — Marines breaking into houses. The main reason that didn’t happen was opposition from the Pentagon itself, which you know, is a healthy thing. We also saw opposition from the Pentagon itself during Trump’s first term when he wanted to invoke the Insurrection Act and bring the military in to put down protests. 

There were still a lot of excesses in the ’80s. We still saw National Guard troops and helicopters invading entire towns and parts of Northern California where they thought there was marijuana being grown. The raid we saw in Chicago and the South Shore of the entire apartment complex that happened fairly often during the drug war. In the ’80s and ’90s we saw entire public housing projects being raided. We saw some in cases entire city blocks being raided. Those raids were also completely illegal and unconstitutional. The courts had to sort it out after the fact, which I think is probably what’s going to happen in Chicago also.

But this idea that Reagan declared illicit drugs a national security threat — just like Trump has done with immigration, with migrants — this idea that we’re facing this threat that is so existential and so dangerous that we have to take these extraconstitutional measures, this is a playbook that we’ve seen before. It’s a playbook we saw with drugs. It’s the same thing we’re seeing now with immigration. 

I think the one main difference is that there really was a crack epidemic. We really did see a pretty big increase in crime in the ’90s [and] crack did kill a lot of people. That isn’t the case with immigration. Immigrants, including undocumented immigrants, commit crimes at lower rates than native born people. There is no epidemic of violence in crime related to immigration or the surge in migrants that we saw. 

So as ill considered, racially disproportionate, and unjustified as the war on drugs in the ’80s and ’90s was, it was at least more justified than what we’re seeing now in response to immigration.

AL: Right. And not only is the purported nexus between immigration and crime completely overblown, but basically every study that has come out. The effect of this kind of response to immigration has shown that it has basically no effect on public safety except for making it worse. 

RB: Except for making it worse. 

AL: Rght. 

RB: Yeah. When you arrest people when they show up for their hearings as they’re supposed to do, people stop going to courthouses. They stop being witnesses in criminal cases. They stop reporting domestic violence. They stop cooperating with the police altogether because they’re terrified.

That’s why police chiefs around the country want sanctuary cities, particularly in urban areas because they know how essential it is to get the cooperation from immigrant communities in order to fight crime.

AL: Radley, as you’ve illustrated in Collateral Damage, Trump has a long history of applauding lethal approaches to eradicating drugs in the U.S. What has Trump said publicly over the years about how he envisions fighting his war on drugs?

RB: He’s praised places like China and Indonesia, which give the death penalty for drug dealing [and] drug smuggling. He praised Rodrigo Duterte, the Filipino president who’s now actually on trial for crimes against humanity with the International Criminal Court for carrying out extrajudicial executions in the name of fighting the war on drugs.

Trump praised Duterte, not just generally or broadly. He praised him specifically for his drug war policy. The very policy that now has him in the International Criminal Court. This is something Trump has always wanted to do. Even he and Miller probably think it’s too far for him to just start summarily executing Americans like Duterte was doing with Filipino citizens. But what he’s doing in the Caribbean is, some version of, I think what he would love to do here if he could.

Break

AL: In Trump’s second term, we’ve seen numerous executive orders broadening the definition of terrorists, designating anyone critical of the administration as terrorists, as well as alleged drug traffickers and dealers. What do you make of these efforts and do they have teeth? And what are your thoughts on how the administration is deploying this war on terror rhetoric and policies to justify everything from immigration enforcement to drug eradication? Nick, we’ll start with you.

NT: Sure. So the Trump administration is using a rhetorical slight of hand here. It’s applying the language and the legal framework that the U.S. relied on for the war on terror to kill unspecified and supposed “narco terrorists.” To begin with, the entire war on terror paradigm was, or I should say, is illegitimate.

But even if you buy into the war on terror paradigm this undeclared war in the Caribbean is fundamentally different. The U.S. has not suffered an armed attack as on 9/11. The congressional notice that we mentioned, it doesn’t even identify which groups the U.S. is supposedly engaged in an armed conflict with.

That’s another secret of this secret war. But even those that we know of, like the Venezuelan gang Tren de Araguaa, they’re not organized armed groups that the U.S. could even be engaged in an armed conflict with. There isn’t even some fig leaf, like the AUMF — the Authorization for the Use of Military Force — that was passed after 9/11 that underpins the entire war on terror.

This campaign against boats in the Caribbean relies exclusively on the president making both factual and legal determinations by sheer fiat. As Brian Finucane, a former State Department government lawyer and a law war expert told me, Trump has given himself a “license to kill based solely on his own determinations.”

AL: Radley?

RB: Everything Nick said, but also, a huge part of this is just trust us, right? We don’t have to provide you the evidence for this, that they were actually smuggling drugs. We don’t have to provide you with the evidence that they were working for cartels. And as we know from when they were sending people to CECOT, they were claiming that, an autism tattoo was proof of membership in Tren de Aragua, or that a makeup artist who had no criminal history— I think it was the Cato Institute maybe did a study, I think finding like maybe nine and 10 of the people sent to CECOT had no prior criminal convictions. 

They’re asking us to trust us when their track record provides no reason to trust them whatsoever. When members of the intelligence community, I can’t remember exactly what body came back and said that Tren de Aragua was not a state sponsored gang that had actually had no affiliation with [Nicolás] Maduro and the fact that Maduro had taken actions against this gang, Trump fired the intelligence officials that produced that report. So it’s trust us, but we know that they’ve lied in the past, and we also know that they will fire anyone who contradicts what they need to carry out the powers that they want to carry out anyway.

There’s, I don’t even— Kafkaesque doesn’t even quite describe what’s going on. I think Kafka would be embarrassed by what’s happening.

AL: We’re running out of metaphors. 

RB: Yeah, right. 

AL: I want to talk about how the administration’s grand vision is playing out domestically. Nick, you’ve been reporting on Trump deploying U.S. military forces in cities across the country. Where has the administration sent troops so far? What are they actually doing and what are the implications here?

Nick Turse: President Trump teased or he threatened to invoke the Insurrection Act earlier this week to facilitate the military occupations of Portland, Oregon and Chicago, Illinois. And the administration is pursuing military occupations there as they pursue an unprecedented militarization of America.

In addition to the administration’s efforts to occupy those cities, armed forces deployed to Los Angeles in June, Washington, DC in August, and Memphis, Tennessee, earlier this month, or it’s going on it right as we’re speaking. Members of the Army, the Navy, Air Force, Marines, the Reserves, the National Guard, they’ve all have been, or will soon be deployed under Title 10 authority. That’s federal control in at least seven states: Arizona, California, Florida, Illinois, New Mexico, Oregon, and Texas. The occupation of Washington D.C. while technically under Title 32 authority or state control, puts Trump in charge of the troops because D.C. has no governor. And there’s a Title 32 deployment to Memphis, and that was welcomed by the state’s Republican governor. Although the city’s mayor, the Democrat, was less enthusiastic about this. 

One of the things that these troops have been doing is burning through a tremendous amount of money — U.S. tax dollars. We broke the news that the D.C. deployment cost about $1 million per day. Trump has claimed that he eradicated crime in the District which obviously it’s untrue. But it is true that troops there have had little to do in a lot of circumstances. There’s footage of them cleaning up garbage, doing yard work in parks, that sort of thing.

I don’t want to be flippant about it either. A federal judge ruled late last month that Trump’s deployment of federal troops to Los Angeles, which began in June and is ongoing, was illegal, and it harkened back to Britain’s use of soldiers as law enforcement in colonial America.

The judge noted that the occupation of LA is an extraordinary violation of the Posse Comitatus Act, which is a bedrock 19th century law banning the use of federal military forces to execute domestic law. And the judge also noted that Trump has been clear about his intent to turn the National Guard into a national police force with the President as its chief. So it’s a frightening prospect, and it’s fast becoming a reality.

AL: I just want to put this on the record because I was not aware of this until a couple days ago. So when the National Guard was deployed to Los Angeles, the administration was very explicit about — whether this was true or not, and obviously it wasn’t true — but they were saying they’re there to protect ICE agents from protest activity. They’re there to police these protests. Now all of these Republican governors are coming out and saying actually they’re there to assist ICE in finding and detaining and deporting people.

Can you walk us through the significance of that? That seems outrageous. It is outrageous, but it’s notable to me that they were trying to give plausible deniability, at least a few months ago, to what the National Guard was doing here, and now they’re being very explicit about it.

NT: Yeah, there’s been two tracks here. The White House constantly uses this language and recently, over the last week they’ve used the language of insurrection, I think with the explicit intent of eventually trying to invoke the Insurrection Act, which has been used only 30 times or those powers have been used only 30 times since the 1790s.

It’s usually used in extraordinary circumstances. We’re talking about things like the U.S. Civil War in the 1860s. So the administration has said that when they deployed troops to Los Angeles. They said it was to quell a rebellion, when there were just basically muted protests in a very tiny area of Los Angeles. Vice president JD Vance went and vacationed 25 miles away in Disneyland from this area that was supposed to be in a state of rebellion against the United States. So farcical, but they’ve trotted that out. 

On the other hand those troops in LA were also used to invade alongside ICE MacArthur Park to roust a children’s summer day camp there and little else. They were used to back up immigration raids outside of the city. 

They’ve used twin tracks here and sometimes they talk about these cities in a state of rebellion because of just a crime problem, and sometimes it sounds like Trump has used the language of war, like it’s an actual rebellion. But when they’re actually performing functions on the ground, it’s often backing up ICE and the anti-immigrant agenda in some way.

RB: Yeah. I would add that crime was going down in all these cities before Trump decided he needed to send them in. There was no rioting. I think there was some protest in Los Angeles and I think maybe one car was burned somewhere in the city, which probably happens quite often in this country. It’s not a sign of rebellion. 

There’s an old legal doctrine that the Ninth Circuit used to have — that the Supreme Court struck down unfortunately — called the Provocation Doctrine. And basically what it said was that if the police violate your rights in a way that makes you retaliate out of self-defense or fear, and then they kill you, even if they had justification to kill you in that particular moment, if there’s a violation of your right to start this chain of events that led to that they did not have qualified immunity, they could still be sued. 

I think about that a lot when I’m seeing what’s happening around the country, which is that Trump is sending ICE and border patrol and other agencies into these cities basically with aggression. They are roughing people up, they’re separating families. In Chicago, they were pulling naked children out of their homes and zip tying them and throwing [them] in the back of U-Hauls. Just really horrific stuff. And then when people get angry and protest as this happens to their neighbors, that’s then cited as justification that we need to send in the National Guard because these immigration officers aren’t allowed to do their jobs. And so they’re creating the very circumstances by which they’re then justifying the need to send in the military.

AL: And it’s not just the National Guard. We’re talking about how Trump is creating this national police force. We’ve also seen him massively expand his reach into state and local law enforcement with a 600% increase in 287(g) agreements, which allow police to help detain people for ICE. I have a story out on that program this week. 

For both of you, how does that piece fit into this larger project to create this national police force under the president’s command?

RB: Yeah, so what he’s doing is, as I mentioned before, there are police chiefs, particularly in cities that don’t want to cooperate with immigration enforcement because it makes it harder to do their jobs. When you go after immigrant communities like this, they don’t want to cooperate with you. They’re afraid of the police. So they don’t report crimes, they don’t testify as witnesses. So what Trump is doing is they’re really pushing these agreements, a lot of times with sheriff’s departments, but the goal is to bring on people to assist who agree with his — basically share his worldview. And share their method of enforcement, which as we saw with the Supreme Court recently in the Kavanaugh occurrence is people who don’t look white, people who speak with an accent, people who congregate at places where immigrants congregate. That’s who we’re going to target.

So it’s basically a way of getting around, anyone in law enforcement who may have moral objections or ethical or constitutional objections. And that’s the same thing with this massive increase in the ICE and border patrol budgets. They’re going to start hiring. They’re going to hire people who respond to the pretty blatantly white supremacist social media marketing that DHS is doing now. It’s also going to be people who are looking at these videos of cops beating people up and separating families and shooting protesters in the head with less lethal munitions. They’re now recruiting people who look at those videos and they’re not horrified. They say, that’s what I want to do for a living. Give me the bonus. I’m going to sign up. And so that’s how they are filling out the roster of ICE, which ICE is soon to be one of the largest militaries in the world if you compare it to the militaries of other countries.

AL: And I think this is a really important point that I just want to highlight this idea that there is no room for dissent within— Not that I’m giving it, I’m handing it to police officers for, like having principles. But this idea that there was a time where sheriffs were campaigning on not joining 287(g) agreements. It was pretty much on its deathbed under Barack Obama. And we’ve seen this massive upsurge, not only under Trump’s first term, but his second term, and this intense political pressure on departments that don’t want to comply. There’s been several Republican governors who have sued local sheriffs for refusing to participate in these agreements. And this separation, this idea of separation of powers, or of any sort of ability to not comply with the administration’s demands is becoming more and more farfetched.

RB: Everything is pushing these officers in the direction of more use of force, more abuse, more violations of rights. State and local officers, we hear a lot about qualified immunity and their protected state and local police officers are protected by that when they violate people’s constitutional rights. But qualified immunity is still qualified. You can still, in theory, get beyond it and get into court and sue one of them.

Federal officers have almost complete immunity. In 2022, the Supreme Court basically killed this decision from the ’70s called Bivens, which created a way for people whose rights were violated by federal police to sue those officers in court. The Supreme Court basically just dispensed with Bivens entirely and qualified immunity doesn’t apply to federal officers.

So there’s really no way to sue a federal police officer no matter what they do to you. There was a case where I think it was a Federal Appeals Court, but it was relying on Supreme Court precedent, where they agreed upon facts were [that] a federal law enforcement officer framed an innocent person of a crime. That person went to prison in order to protect an informant. The courts agreed with that characterization of what happened and still ruled that there was no way for this person who was wronged to sue. So when we see these videos on social media responses to these videos I hope they sue those people into oblivion, it’s just not going to happen. The only way these officers are going to be held accountable is if the DOJ charges them and prosecutes them, and of course we know that’s not going to happen during this administration.

AL: Right. Nick, I’ll turn to you. I wonder if you could just speak to what all of this means for the future of presidential power and civil liberties beyond the Trump administration. We talked a little bit about the congressional authority to declare war. Obviously Congress hasn’t officially declared war since World War II, but has that authority become obsolete? And what does this mean for future administrations? If we have them.

NT: The Trump administration’s combination of military occupations of American cities, of the deployment of tens of thousands of troops across the United States, the emerging framework for designating and targeting domestic enemies, combined with its assertion that the president has a right to wage secret war, and summarily execute those the president deems to be terrorists has left America — and I don’t think this is overstating it — on the precipice of complete authoritarian rule.

They’ve set the machinery in place. And with Trump attempting to fashion a presidential police force of armed soldiers for domestic deployment, at the same time, he’s claiming the right to kill anyone he deems a terrorist, I think the threat to the rule of law in the United States is nothing short or profound.

AL: Radley?

RB: To a large extent, I think the courts have held, the federal courts, particularly at the district court level, have done a good job of articulating the principles that are at stake here and limiting this administration’s lurches for power. Unfortunately, one court has done a pretty poor job of all of that, and that’s the court that matters most which is the U.S. Supreme Court.

AL: Is there any way to come back from this? Is it in the public interest to dismantle this machinery and how would that even happen?

RB: On the civil liberty side of things, we need people who are as creative and inventive and show the same sort of ingenuity at protecting our rights as this administration has shown to destroying them. There’s been this kind of asymmetrical decency, asymmetrical adherence to the rule of law where one side is trying to do things by the book and the other side is—

AL: Burning it.

RB: Right. I think enough damage has been done at this point that it’s hard for me to see a way back while adhering to the same principles that have been shattered and destroyed. 

I think we may have to reset. I think there may be a time when, you know, we need to get things back on track and then we can worry about reestablishing norms and principles. 

Yeah, we’re in a bad place. I don’t know how we easily get back from here.

AL: Nick.

NT: These questions are far beyond my pay grade. Someone smarter has got to figure out how to unwind all this if it can be done. I think Radley said it best when he said, people are going to have to get creative. Also, he mentioned the courts. The district courts have put up some roadblocks there. 

I think this administration is still susceptible to public opinion. I think people in the streets matter. 

RB: Absolutely. 

NT: And I think people need to get creative. I’m not sure that protests as usual are going to work, but there are smart people out there and I hope they figure out new ways to throw up roadblocks. 

In the future, again, just echoing Radley, I think if things are to be reset it’s going to mean an assertive Congress. It’s going to mean a new Supreme Court and a president who’s willing to tie her or his own hands — someone far more moral and ethical and principle than we’ve had in that role for some time.

AL: Well, we are going to leave it on that bright note. Thank you both for joining me on the Intercept Briefing.

RB: Thank you. 

Nick Turse: Thanks very much.

AL: That’s Radley Balko, host and creator of the new Intercept podcast Collateral Damage, and Nick Turse, Intercept senior reporter. 

We’ll drop the first episode of Collateral Damage in the feed for listeners to check out. 

And that does it for this episode of The Intercept Briefing. 

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