Brigid Bergin: It's The Brian Lehrer Show on WNYC. I'm Brigid Bergin, sitting in for Brian today. Earlier this month, President Trump went public with dramatic video. A US strike blowing up a boat in the Caribbean. He said the people on board were Venezuelan narco terrorists and claimed the operation saved American lives. He did not provide the details, like who those 11 people actually were, what evidence tied them to drugs or crime, or what legal authority he was relying on. This strike didn't take place in a declared war zone. It wasn't cleared with Congress. It comes at a time when the administration has been casting violent criminals in Latin America as the next front in what it calls a global war on terror. On Monday, the US Military struck a second boat, killing three more people. What does international law say about sinking a vessel in international waters? How much latitude does a US President have to take this kind of action? What precedent might it set if other countries follow suit?

Joining us is Brian Finucane, senior advisor at the International Crisis Group and a non-resident senior fellow at NYU Law's Reiss Center on Law and Security. He's a national security lawyer who's been studying US uses of force overseas for years. Hey, Brian, welcome to WNYC.

Brian Finucane: Good morning. Pleasure to join you.

Brigid Bergin: Listeners, we'd like to hear from you. Should the US Military be targeting suspected drug traffickers overseas, or is that an overreach that risks drawing us into new conflicts? The number 212-433-WNYC. That's 212-433-9692. You can call or text. Brian, for people who haven't been following this as closely, can you walk us through what the administration says happened with these strikes?

Brian Finucane: The administration has documented at least two strikes somewhere in the Caribbean. The first occurred on September 2nd, allegedly in water beyond the territorial sea of any state, against a vessel that had 11 people in it. President Trump showed video of that. They were alleged to be smuggling drugs initially. Secretary of State Rubio said that the vessel was headed towards Trinidad and Tobago. Subsequently, members of the administration asserted it was heading towards the United States.

We've had reporting now from the New York Times and others. The vessel actually turned around back towards Venezuela before it was struck. Then, again, earlier this week, we had a second strike. The president publicized again via video on social media, this time with three alleged people aboard. Again, the people on the vessel referred to as terrorists or narco terrorists. Again, the vessel was reportedly outside of the territorial waters of any state. As you noted at the outset, the administration has not provided any information that would substantiate its [inaudible 00:03:21] of these vessels or the people aboard them.

Brigid Bergin: I heard you mention twice there, Brian, outside the territorial waters of any country, which feels like a pretty important distinction in this conversation. I wonder if you can unpack why that matters and then talk a little bit about the law itself. When a president orders a military force to take a strike like this, what authority is he supposed to rely on?

Brian Finucane: I wanted to get down to brass tacks before I delve into those specific issues. We have a term in the law for the premeditated killing of people outside of armed conflict, and that term is murder. That's what we're grappling with here fundamentally. Now, why that matters in the context of these strikes? The administration is asserting that these strikes took place outside territorial waters, I think, in part to indicate that it's not actually yet directly attacking Venezuela, and that serves certain dogmatic and political purposes.

The administration does not want to completely rupture relations with the Maduro government as much as it wants to engage in saber-rattling. It doesn't want to rupture those relations because it wants to continue deporting Venezuelans back to Venezuela. It needs to maintain some relationship with the Maduro government. The reason that the territorial waters aspect is legally salient here is all for the purposes of US domestic law.

There is a criminal statute that makes murder on the high seas, and the high seas are waters beyond the state's territorial waters, a federal crime. That is one of the really important legal considerations at play here that the administration has not even tried to address, why that's not implicated by these premeditated killings.

Brigid Bergin: Then, to the other part of my question. What is the authority that the President is relying on when he takes these actions?

Brian Finucane: When the President directs use of force, it can be under two potential bases. One, a congressional authorization, such as a declaration of war or authorization for use of military force, like those used for the US War on Terror or the war in Iraq. The second basis is what the administration has asserted here, which is the President's alleged inherent authority under Article II of the Constitution. The administration has cited in particular the president's authority as commander in chief and chief executive.

It hasn't really elaborated further on that purported constitutional basis. There were reasons for the public to be skeptical of that claimed authority. In the first place, the framers of the Constitution gave the power to declare war and other associated war powers to Congress for a reason to make using military force difficult to require public debate and a vote by the people's elected representatives, rather than leaving it to the whims of one man. Okay?

Brigid Bergin: Yes.

Brian Finucane: The Executive Branch has expounded an expansive theory of when the president can act unilaterally. That theory has not been accepted by Congress or the courts. Reliance solely on executive branch legal doctrine should not in any way be dispositive. It's also worth emphasizing that Article II of the Constitution not only grants certain authorities to the US President, it also imposes certain constitutional duties on the President. One of those duties is the duty to take care that the laws be faithfully executed.

Those laws include federal law as well as US Treaties. There's a question here as how these strikes were conducted in a way that accords the President's duty under the Take Care Clause, and how the administration reconciles these with various federal laws prohibiting the premeditated killing of people outside of armed conflict.

Brigid Bergin: Brian, on the point about the White House's use of Article II powers and the fact that essentially it's a legal doctrine that is coming out of the White House traditionally, what have been the limits of Article II powers?

Brian Finucane: The framers of the Constitution, as I said, they gave the bulk of the war powers to, to Congress to make going to war hard because it was one of the most momentous decisions the country could make about the expenditure of this blood and treasure. There was a recognition that the President would at least have the authority to repel sudden attack. Over the past 250 years, particularly post-Second World War, the executive branch has really expanded on that further in a series of memos issued by the Department of Justice.

It has sketched out an executive branch doctrine of when the president may act unilaterally that turns on a two-part test. First, with a contemplated use of military force, would advance a sufficiently important national interest. DOJ has identified a broad range of potential national interests that would justify the use of force. That prong of the test is viewed as not particularly constraining at all. The second part of the test is whether the contemplated military action would amount to "war in the constitutional sense, such that it would require prior authorization by Congress."

The Department of Justice, over the years, has looked at whether the action would, by its nature, scope, or duration, be so extensive or pose such a risk of escalation that it was essentially preempting a decision by Congress. Within the executive branch's own scheme here, this may seem a rather trivial issue, that we're doing a few isolated strikes here. The White House has determined that there is a national interest in countering narcotics smuggling because of the limited scale, at least for now, doesn't implicate Congress's powers under the declare war clause.

That is again, I want to emphasize an executive branch doctrine alone has not been endorsed by the courts and not been endorsed by the Congress, and doesn't appear anywhere in the text of the Constitution.

Brigid Bergin: Listeners, if you're just joining us, my guest is Brian Finucane, and we're talking about whether the US Military should be targeting suspected drug traffickers overseas. Does this represent an overreach or risk drawing the US into new conflicts? Give us a call at 212-433-WNYC. That's 212-433-9692. Brian is a senior advisor at the International Crisis Group and a non-resident senior fellow at NYU Law's Reiss Center on Law and Security. He's been covering national security as a lawyer for years.

He is an expert on these issues and can help us parse through exactly what is happening and what questions it raises about the authority of the executive branch versus the legislative branch. Brian, as we know, Congress was not consulted here, and you've been talking about the role Congress plays in authorizing or potentially restraining these kinds of operations. What are some of the issues that are being raised by some of the lawmakers in the legislative branch?

Brian Finucane: The fact that Congress did not authorize the military to undertake these, there was no congressional authorization of use of military force. Also, going to the way that forces use the fact that this was the premeditated killing of people outside of an armed conflict. We heard that earlier this week from Senator Adam Schiff of California when he announced that he would be introducing legislation to bar further action by the administration. He characterized these killings as extrajudicial executions.

I think that's an apt label based on what we have seen thus far. There's a parallel effort in the House, manned or speared at the time being by Representative Ilhan Omar, who also has a War Powers Resolution that would seek to block further military action by the President. There are other potential tools at Congress's disposal, including by the Democrats in the minority, either to conduct oversight or shadow oversight of these activities to try to raise the public salience of them, extract additional information from the administration and the ultimate war power, which is the power of the purse in principle, that Congress could defund or bar the use of funds for any future military action in this region.

Brigid Bergin: Brian, the administration has justified these strikes by labeling the Venezuelan gang Tren de Aragua as a foreign terrorist organization. Does that designation carry any legal weight when it comes to using military force?

Brian Finucane: It does not. The designation of an entity as a foreign terrorist organization or FTO has [inaudible 00:12:36] travel and financial sanctions on the targeted entity. It makes the provision of material support, which is construed very broadly but includes money, personnel, resources. It makes the provision of that material support a federal crime for which you can be prosecuted. It does not authorize the use of military force, and it crucially does not transform members of any designated entity into lawful targets.

I want to just pause here and say that the attempt by the administration to characterize Latin American criminal organizations, cartels, as terrorists is very intentional. These designations were imposed back in February. It's of a piece of a broader pattern by the administration to tar immigrants in the United States generally as terrorists, and again recently to tar domestic political opponents as terrorists. I think those labels apply domestically to take on a particularly ominous tone, given that the powers that the administration is starting to wield here against the supposed terrorists in Latin America.

I also want to point out that the administration's trying to cloak this as some new front on the 20-plus-year US war on terror. That is a misappropriation and a misframing of the situation. If the US is not engaged in an armed conflict in the same way that it was against Al Qaeda, ISIS, or the Taliban in earlier stages of the war on terror, that was again sparked by Al Qaeda's armed attack on the United States on 9/11 attack that killed almost 3,000 people.

Brigid Bergin: Let's go to the phones. I think Steve in Midtown has another question about how this operation started. Steve, you're on wnyc.

Steve: Yes, good morning. I just wanted quickly a rundown of end-to-end how this operation started. How was evidence generated to suspect that the 11 people on this boat were carrying fentanyl? I think there was some mention that, oh, we have tapes of telephone conversations or something. How much the cost of this operation of scrambling, what, several military planes to bomb a little tiny boat, and killing people just on suspicion? Also, that thing in the Times where the boat turned back and therefore wasn't a threat. It seems dopey inasmuch as if you have just a street crime and the cops show up and the criminal runs, that doesn't mean that, "Oh, well, now they're okay."

Brigid Bergin: Steve, thanks for your call.

Brian Finucane: Those are all excellent questions and points. Just on the last one to begin with, I think that the fact that vessel turning around further undercuts any argument by the administration that somehow these lethal strikes were conducted in self-defense, either against US Service members deployed in the region or against the United States more generally. Self-defense is relevant both for international law purposes, but also as an affirmative defense to any criminal charges or criminal allegations against US personnel.

Now, as the factual questions, those are excellent questions, and unfortunately, we don't have good answers there. These are issues that Congress, the defense committees, and foreign affairs committees in particular, should be drilling down trying to get answers. We don't know, to my knowledge, which exact component of the US Military conducted the operation. We don't know what platforms exactly were used. We don't know what munitions were used. We don't know the expense of these specific strikes.

I don't think it's public knowledge what the expense of the broader deployment to the Caribbean, which include US guided missile destroyers, nuclear powered submarines, I think 10 F35s, as well as thousands of marines and sailors. I don't think we know fully at the expense of all of that. These are great questions. The administration has not been very forthcoming with additional information. It hasn't been substantiating its claims about who's in the vessels.

I want to really emphasize here, they haven't even specified what the alleged entity is being targeted here. They've made their more formal statements broadly about narco terrorists or designated terrorist organizations without identifying the actual supposed entity that's being targeted.

Brigid Bergin: Brian, a listener text. "If the US can attack a boat in international waters, does that mean that the Houthis can attack ships in the Persian Gulf?

Brian Finucane: The administration is asserting some prerogative here, but they haven't scoped out what the exact legal theory behind it is or what limiting principles might apply to it. There is a concern both in terms of what this president might establish domestically, in terms of how the President wields power, but what it might embolden other actors to do. Yes.

Brigid Bergin: Brian, I wonder if we could just spend a minute on what the normal protocol would be if the administration suspected this were to be a boat carrying drugs, wouldn't it normally be that the Coast Guard-- A Coast Guard interdiction and prosecution. Why do you think it escalated to a military strike?

Brian Finucane: You're quite right. There's a great piece by Mark Nevitt, a former Navy JAG and just security, quite recently dandered procedures that the US Navy and the Coast Guard have used for decades to stop interdict search vessels suspected of smuggling drugs. When called for, the Coast Guard, acting in a law enforcement paradigm, will take into custody people aboard the vessel, and they'll be prosecuted as appropriate through the US criminal justice system. There's a decades-old playbook for this.

In fact, the US Navy and Coast Guard are working together to do this at this very moment in the Caribbean. There are Coast Guard personnel aboard some of the Navy vessels down in the Caribbean. Why didn't that happen? According to Secretary of State Marco Rubio, the President United States was presented with that very option before the first strike. The President decided to blow up the vessel, according to Rubio, because he wanted to send a message. I think one thing going on here is the President likes performative use of military force.

That's a trait from his first administration, which I served in and advised on. You saw that with the President posting these videos of these airstrikes. I think it's also relevant because it further undercuts any sort of self-defense argument by the US Government. The President had a less-than-lethal option, a non-lethal option presented to him, and he discarded it. He chose to kill these people instead.

Brigid Bergin: Let's go to Bradley in New City, New York. Bradley, you're on WNYC.

Bradley: Yes, morning, thank you for taking the call. These criminal organizations, they are running a business not unlike how the Mafia ran a business. The Mafia understood that they could not go out and kill police officers or politicians, or just innocent people. They did their thing. They were very, very bad people. They understood they were working within a framework, and if they got caught, they went to jail. We delineate what is available and what's not available to us as a law-abiding people.

Now, if we cross the line and we say you people are now open to essentially open warfare, you've crossed that line. That means once we cross the line, they can cross the line. That means they can kill politicians in this country, they could kill police officers in this country, they could kill civilians. It's a very, very dangerous road to go down. We have held the world stage as a law-abiding country. If we start thinking that we can just go around with impunity, it's not impunity. They have resources.

I can assure you in this country at this time, there are probably thousands of narco terrorists and they're just doing their business. They don't want to be interfered with. If we start just killing people, what's going to prevent them from just going around and killing us?

Brigid Bergin: Bradley, thanks for that. I want to bring in another perspective on this incident. Israel in Toms River, New Jersey. Israel, you're on WNYC.

Israel: Hi. I have two questions, and I want to wait. I know on the line, after I asked my first question. My question is like this. It's more foundational. We're talking about people on this boat that are trading in fentanyl and all these deadly drugs that has proven detrimental to the United States. What I'm wondering is this phenomenon on the part of mainly the left, where they have to put on kid gloves and analyze and see what is the foundational legal basis for the President's actions. I'm blowing up people who have blood on their hands, who are murdering US Citizens.

I don't think there is a doubt that Tren de Aragua is a ruthless, tyrannical group who are axing people's heads off. What is this phenomenon in the left to try to defend criminals, and try to figure out when we apprehend them, what is the legal basis for doing so? I'm going to wait for my next question.

Brian Finucane: The various facts you're asserting, none of them have been established with respect to who is targeted in either vessel. We have procedures in this country, and a requirement under the US Constitution for due process before the government takes people's lives. None of that was followed here. President took from the prerogative to serve as judge, jury, and executioner here. I want to really emphasize something here.

Drugs, substance abuse, overdose deaths from narcotics, those can be very serious problems and are very serious problems in this country. That doesn't mean that those problems have a military solution, particularly a solution involving the unlawful, premeditated killing of people.

Brigid Bergin: Brian, before we bring Israel back for a second question, I also just want to give you a chance to respond to the first caller who was raising a different set of issues. Some of the anxieties that we've heard from other callers that we've seen in texts about what the long-term implications could be of this type of foreign policy, the strategy.

Brian Finucane: Let me put it this way. I have talked to dozens of former US Government national security lawyers, both civilians and former JAGs, who, like me, advised on lethal counterterrorism operations, advising on naval interdictions, and the use of force. No one is defending this operation. No one that I've spoken with. That is particularly damning. These are not people who are faint of heart, people who have been involved in a lot of lethal counterterrorism actions in the last 20 years. This is categorically distinct. What separates the US Armed Forces from a death squad is the law. If the US Government starts killing people outside the law, which appears to be the case here in the Caribbean, we're going down a very dangerous road. The President has essentially asserted a prerogative and a license to kill. It's not clear why that prerogative won't be deployed domestically.

Brigid Bergin: I want to bring Israel back to just quickly ask your second question about why you think that this was authorized.

Israel: You claim that this is always very common, this counterclaim that, "Oh, when the President took this action, there's no established fact that the people were involved in narcotics." In this country, law enforcement has the power to go and arrest somebody over probable cause. By the way, you're not going to know about what evidence there was until they go to trial. In war, you're not saying that when you're in the trench with your six buddies before you fire off your gun against people who are pointing it at you, you don't go and say, "Oh, wait, we have to go to trial first. Let's get the judge."

No, war is war. It's preposterous to me that you're even mentioning there's no evidence. The left always uses this for their own use when they want. They say, "Oh, there's no evidence." Then they turn it around and do actions against people, like we saw with the IRS, where there's absolutely no evidence whatsoever. I don't know how you can even invoke such a thing where you need evidence, which is in a court of law. We're talking over here, where the country is conducting a war against a terrorist entity that is involved in drug trafficking into the southern part of this country.

There's no such thing as, "Oh, he has to have facts." First of all, it's published. You can see exactly who these people were, what group they were from. I don't think you have to ask the question of some, as you see people, there's probable cause that someone's violent and is part of a group. You're saying there's no evidence. Turn that the other way around. What about there's no evidence that people are dying from-- There's absolute evidence that people are dying from fentanyl and from all these drugs, and people are getting their heads chopped off in the south of the country.

Brigid Bergin: Israel, I want to jump in because I brought you back to ask your second question. The second question was ultimately that law enforcement has the right to go in to arrest on probable cause in the issues of war, I think the action can go that much further. Brian, I'll let you respond. Part of what's been at the heart of this conversation is what exactly would have been the normal legal course of action here. Correct?

Brian Finucane: Yes. As we discussed, there is a well-established law enforcement playbook involving the Coast Guard and the Navy working to interdict vessels and prosecute people aboard them where appropriate. The caller raises an important point that I really want to address because he seems to be accepting the framing by the administration that these entities that are being targeted, the people aboard these vessels, are terrorists, that this action is taking place in the context of a war. All that is baloney.

I say that as someone who worked for 10 years under administrations of both parties involved in advising the law of war, advising on the use of force in armed conflict, in counterterrorism. The administration is very intentionally and cynically trying to cloak these operations in that mantle. It's simply inapplicable. These groups, whatever they are, they do not appear to be terrorist organizations the same way that Al Qaeda or ISIS are terrorist organizations. The administration, despite using war talk, has not even made the case or established that they engaged in an armed conflict that would be governed by the law of war.

That's a very important threshold issue. The United States is not engaged in armed conflict with any of these groups in America that have been designated as foreign terrorist organizations. The administration, more importantly, has not established, even if the law of war to apply, that the people targeted aboard these vessels or the vessels themselves were lawful targets under the law of war. Again, this is the distinction between the United States military and a death squad or Putin's forces in Ukraine.

The law. The US Military targets lawful targets or should, under the law of war. That is what's so disturbing to many of the former current JAGs that I talk to about this operation. They can't see any way to justify it. They can't see any way to justify it under the law of war. They're very concerned that this may constitute murder under the Uniform Code of military justice, Article 118, as well as US federal law.

Brigid Bergin: Brian, we've got a lot of pushback from some of our listeners to Israel's call. I know that you were pushing back and explaining it, but ultimately, if Congress or the courts actually wanted to check this administration's use of force, what tools are realistically available to them?

Brian Finucane: As I said, there are efforts to push forward legislation in both houses of Congress under the War Powers Resolution to block further military action in the Caribbean. Those face a tough road, but they could serve as an important politically signaling actions both to the American public and to the White House, particularly if they're able to attract Republican backers. I think members of the public should weigh in with your members of Congress and urge them to support these war powers resolutions.

Also, urge them to conduct vigorous oversight to try to get answers to many of the very good questions that some of the callers have raised about the facts here, the money being spent, and also potentially to defund these actions. The power of the purse is the ultimate war power. It is your tax dollars that are paying for these operations in the Caribbean. Congress has the power to block additional funding for such operations. It's worth a reminder that ultimately, it leaves how Congress forced an end to US participation in the Vietnam War.

It was through the power of the purse, through defunding US Military operations. That is an available tool. Whether Congress can muster the political will is really the question here. We are experiencing an Article I crisis, but people should weigh in with their members of Congress to get them to do their jobs.

Brigid Bergin: My guest is Brian Finucane, Senior Advisor at the International Crisis Group and a non-resident senior fellow at NYU Law's Reiss Center on Law and Security. Brian, thank you so much for joining us.

Brian Finucane: My pleasure. Thank you.

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