High-Seas Takedowns and the Killing of Suspected Drug Smugglers

“I think we’re just going to kill people that are bringing drugs into our country. Okay? We’re going to kill them, you know, they’re going to be like, dead.” — President Donald Trump

Over the last few months, the Trump administration has used the United States military to summarily kill dozens of people accused of smuggling drugs on boats off the coast of South America.  The administration has offered no formal, reasoned legal basis for the extrajudicial killings. Instead, various officials have asserted—without providing any evidence—that the people in these boats blown to pieces by the military were members of the Tren de Aragua cartel, whose members the administration has deemed “narco-terrorists.” According to Vice President J.D. Vance, “killing cartel members who poison our fellow citizens is the highest and best use of our military.”

But we are not a nation that allows the executive branch to act as judge, jury, and executioner.  The administration’s actions violate at least two of the foundational principles of this country: every person is entitled to due process of law, and it is Congress’s job—not the president’s—to declare war.

Due process, of course, is supposed to provide some assurance that the people targeted for punishment by the government are who the government says they are and that they did what the government says they did. Due process is a foundational principle in this country, because the Founders knew that being accused of an act does not mean that the person actually committed that act. The administration’s shoot-first, never-ask-questions approach to these “narco-terrorists” demonstrates a dangerous indifference to this basic principle of American and international law.

The President has dismissed due process concerns by claiming that the country is in an “armed conflict” with drug cartels such as Tren de Aragua.  But this assertion of wartime powers to kill individuals without due process safeguards is also in direct contradiction to constitutional principles. In our system of government, it is Congress, not the president, that can declare war.  President Trump has neither obtained nor even sought congressional approval for these strikes.  These actions are another step toward the consolidation of power in the executive branch, which violates our system of a separation of powers between the executive, legislative, and judiciary branches.  In bypassing Congress and essentially declaring war on drug cartels—organizations that seek to profit from Americans, not necessarily kill them—the President has again dealt a blow to our system of checks and balances.

The available evidence shows that this course of action has already resulted in attacks on—and likely the deaths of—innocent civilians. One Colombian man killed by our military was, according to his wife and the president of Colombia, on a fishing trip and had no link to drug trafficking.

Further, two men who survived bombings were returned to their home country—which raises the question, if these men were dangerous “narco-terrorists,” why would we let them go free? If these men were importing drugs into this country, why would they not be taken here to face justice?

The criminal justice system created by Congress and presided over by the judiciary branch is the appropriate venue to address the administration’s concerns about drug trafficking, not the military.  Notably, there are no reports of anyone receiving the death penalty for federal drug-trafficking crimes in the United States.  Instead, most defendants convicted of federal drug trafficking are sentenced to prison under the U.S. Sentencing Guidelines, which aim to avoid disparate punishment and ensure that sentences are sufficient, but not more than necessary.  Even former Panamanian dictator, Manuel Noriega and Mexican ex-cartel kingpin, Joaquín “El Chapo” Guzmán, were tried in U.S. courts, convicted of vast drug trafficking crimes, and sentenced to long prison terms, not the death penalty.

Rather than killing the citizens of other countries without process and without Congressional authorization, this administration should bring the Venezuelan suspects into the U.S. system where allegations of drug smuggling would have to be proven. Although the criminal justice system has flaws, it was designed to protect the public while also respecting the rights of people charged with crimes.

These extrajudicial killings show a wanton disregard for the Rule of Law. And that should alarm us all.