So You've Decided to Target Random People with Military Force

Here's why it's illegal.

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So far, the Trump administration has killed twenty-one people using military strikes in the Caribbean. Meanwhile, back at the ranch, President Trump has escalated his attempt to deploy the military in cities throughout the United States, on the heels of the Secretary of Defense informing his military brass that they are no longer going to be bound by “stupid rules of engagement.” And last week, Attorney General Pam Bondi assured Trump that the United States is “going to take the same approach” the government has with drug cartels against Antifa – a group that Trump has unilaterally designated as a “major terrorist organization.”

If you are starting to connect the dots and are feeling a queasiness in your stomach, then you know where the rest of this piece is headed. Steel yourself.

Let’s start with the bombing of the drug boats. The Trump administration advanced its thin legal basis for the four military strikes to date through a “confidential notice” to Congress last week. Its argument is that 1) the targets are “designated terrorist organizations”; 2) that the U.S. is in a “non-international armed conflict” with said organizations; and 3) as a result anyone who belongs to these groups are “unlawful combatants” and therefore valid military targets. If these buzzwords sound familiar to you, it’s because they are the same ones that were used in the legal justifications for targeted killings (i.e., drone strikes) in the war on terror following 9/11. However, to quote The Princess Bride, these words do not mean what the administration thinks they mean, and throwing them together into a word salad does not a legal justification make.

It is true that al Qaeda, and its later iterations like ISIS, have been designated as Foreign Terrorist Organizations (FTO) by the executive branch since 9/11. It is also true that the United States was in a “non-international armed conflict” with these groups, and members of these groups were considered “unlawful combatants.” However, the reason these designations all made sense was because of three important things. First, al Qaeda and related groups met the definition of “armed groups” under international law, to wit: They were armed and had “a sufficient degree of military organizations to conduct hostilities” against the United States. Second, they had (at different points) already attacked the United States and were actively planning more attacks; because they were non-state actors that did not observe the laws of war (for example, they targeted civilians), they were “unlawful combatants,” and military hostilities against them were considered a “non-international armed conflict” under international law. Finally, Congress had passed an Authorization for the Use of Military Force (AUMF) shortly after the 9/11 attack, authorizing the president “to use all necessary and appropriate force” against any people, organizations, or nations who participated in 9/11.

In 2010, the Obama administration put these factors together into a legal theory it called “preemptive self-defense.” The idea here was that al Qaeda and associated forces were in a state of constant planning of attacks against the United States, such that they posed an ongoing, imminent threat of attack. (If the idea of something being both “ongoing” and “imminent” makes you pause, it should.) The President’s Article II Commander in Chief authority, combined with the AUMF, justified the use of lethal force against senior members of al Qaeda who were located outside the active area of hostilities (i.e., not on a battlefield, where they would already be a lawful military target by virtue of carrying arms against U.S. forces). Specifically, lethal force was legally justified where 1) “an informed, high-level official of the United States” determined that the targeted individual posed an “imminent threat of violent attack” against the U.S.; 2) where capture was infeasible; and 3) the operation was conducted in a manner consistent with the law of armed conflict (an international law framework which requires that military force meet certain criteria, like distinction of targets and proportionality, to be lawful).

The 2001 AUMF is incredibly broad (and it is still in effect today!) – but I don’t think even the most hawkish Republican in Congress could argue with a straight face that it would possibly cover Central and South American drug traffickers. Without any kind of congressional approval to engage in hostilities against these groups, President Trump is (I think?) relying on his Article II Commander in Chief authority, which – going back to the Civil War – has been interpreted to include a “defensive war power” to protect the country in the event of an imminent threat. The problem is that smuggling drugs into the country does not constitute an “armed attack” or the kind of imminent threat that would justify the use of military force in self-defense. More importantly, drug cartels do not even meet the definition of an “armed group” with which we could be engaged in the kind of non-state conflict we were post 9/11. Finally, remember the part about capture being infeasible? Well, not for nothing but the Coast Guard has been (successfully) interdicting drug vessels on the high seas for decades.

So if the U.S. is not in an authorized military conflict with these targets under either domestic or international law, what is it? Well, colloquially, we call it murder.

Don’t take my word for it. Even John Yoo, best known for co-authoring the so-called “torture memos” during the George W. Bush years and one of the strongest proponents of Article II war powers out there, argues that Trump is trying to extend the terrorism framework into something that is more properly addressed through criminal law. But I think there’s a reason the Trump administration is doing that, and it’s because the Obama-era theory of “preemptive self-defense,” which the administration is trying to distort, also extended to a category of people over whom Trump may want to exert military authority: American citizens.

Yes, that’s right, folks. In a major instance of Bad Idea Jeans, the Obama Justice Department authored a white paper which analyzed the “balance of interests” between an American’s rights under the Due Process Clause and the Fourth Amendment right against unlawful seizure (i.e., a drone strike) and the national security needs of the United States. It concluded that the balance tipped in favor of the government (surprise!) and that targeting a U.S. citizen under the criteria set forth above would not constitute murder or an “assassination,” which is prohibited under law. A lawsuit brought by the ACLU and the Center for Constitutional Rights challenging the killing of three U.S. citizens, including Anwar al-Awlaki, the American-born Islamic cleric involved in several al Qaeda plots against the U.S., was dismissed by the district court for lack of standing and because it raised “political questions” that were nonjusticiable by the courts. In other words, the legality of the strikes was not something the court could decide.

This is why Trump’s executive orders designating “Antifa” as a “domestic terrorist organization” and authorizing the Attorney General to designate other “domestic terrorist organizations,” alongside the Secretary of Defense’s statements that the military is targeting “designated terrorist organizations” (without naming them) should start ringing alarm bells. For one, these are not real things. Foreign terrorist organizations are a thing, and the process and criteria for designating these are indeed delegated by Congress to the executive branch under the Immigration and Nationality Act: In February, the State Department designated several drug cartels under this rubric. (Again, even this designation, on its own, does not automatically make them lawful military targets.) But the fact that the language used by the administration since then has replaced the word “foreign” with “designated” and “domestic” – and has even gone as far as to invoke “Antifa,” an ideology that has no organizational structure or membership – when referring to “terrorism” is a big sign that they hope to bring the war home, as it were.

And this is where the military deployments into cities and Secretary Hegseth’s decision to basically authorize war crimes is a big, big problem. If the Trump administration is trying to conflate ordinary crime and even ideology with terrorism, and is taking the position that being labeled as a “terrorist” – by God knows who in the Trump administration and with no evidence, transparency, or judicial check – justifies using lethal force against that person, then it’s just one step away from ordering the military to do so.

In fact, Trump is calling cities like Portland and Chicago “war zones” and told his generals they would be fighting the “enemy within.” Like a good MAGA sycophant, House Speaker Mike Johnson has fallen in line, calling the upcoming No Kings protests a “hate America” rally led by “pro-Hamas” and “antifa” forces, with another representative calling it a “terrorist” event. Tom Nichols writes for The Atlantic that the civil-military crisis is here, and that the military “may soon face a terrible decision” – where the unlawful orders they are being conditioned to follow in the Caribbean will be directed against the very people they are sworn to defend and protect.

Following Bondi’s statement regarding Antifa, Senator Adam Schiff asked, “You begin to wonder – do they believe they have the authority by putting some groups on a list, even domestic groups, to use lethal force against them, with no trial, no due process, no nothing? The reality is we can’t rule that out.” No, we can’t. Pay attention to what is happening on the high seas, because the plan is to bring it to a city street near you.