Ever since President Trump started bombing alleged drug-carrying boats in the Caribbean Sea while refusing to provide even minimal factual justification for it, a couple of big questions have gone unanswered: Are Trump’s underlings being given illegal orders? Do they fear that they’re being given illegal orders?
This line of questioning gained urgency after the top military official overseeing the bombings, SouthCom commander Alvin Holsey, abruptly stepped down last month. The lack of any public explanation led some Democrats to raise the possibility that Holsey sees the bombings as unlawful, a case made by many legal experts.
Democrats now have a new opening to start pressing this question even harder. And in a strange twist, it comes courtesy of a new memo drafted to justify the bombings by the Trump administration itself.
This memo, reports The New York Times, was drafted by Justice Department lawyers to justify the strikes. It says that the United States is embroiled in an armed conflict with drug cartels. To buttress this idea, per the Times, the memo loops back on itself by relying on the White House’s own declarations to that effect as its key evidence.
The memo—drafted by the Office of Legal Counsel—notes that the government has designated some Latin American drug cartels as “foreign terrorist organizations,” which is itself unprecedented. The memo then takes a step further into La-La Land. It claims the White House’s characterization of cartels as waging war on the U.S.—which few legal experts accept as legitimate—itself provides the legal foundation for treating the drug cartels this way under Trump’s wartime powers as commander in chief.
As the Times delicately notes, administration lawyers have “accepted at face value the White House’s version of reality.” It’s circular reasoning, of course. But I want to highlight another revelation about the memo, per sources who have seen it and who spoke to the Times:
A lengthy section at the end of the memo, they said, offers potential legal defenses if a prosecutor were to charge administration officials or troops for involvement in the killings. Everyone in the chain of command who follows orders that comply with the laws of war has battlefield immunity, the memo says, because it is an armed conflict.
In other words, administration lawyers appear to be preemptively laying out arguments for why people down the chain of command are acting legally in carrying out these orders. Where does the need for this extra step come from, exactly?
Representative Adam Smith, ranking Democrat on the House Armed Services Committee, says it’s not typical for such a memo to offer an affirmative legal shield against future prosecution. After all, the memo itself is supposed to explain why the actions are legal, so that line would appear superfluous.
“It is highly unusual to say in it that ‘we’re going to give legal protection for these actions,’” Smith told me.
Smith said this should be read alongside the news, reported by CNN, that the United Kingdom has halted sharing intelligence about suspected drug-trafficking vessels with the U.S. The U.K. does not want to be complicit in unlawful strikes, CNN claims.
“They think that what we’re doing is illegal,” Smith said.
The rub here is that, by inserting this line, the administration has opened itself up to questions about why it did this.
“It signals a fear that what they’re doing is illegal and that they could possibly be subject to criminal action under U.S. law and under international law,” Smith told me. He added that administration lawyers may be looking at Trump’s bombings and saying, in effect, “Damn, we are really pushing the envelope here. We’d better do something a little extra special to protect our people.”
Indeed. Congress has not authorized these bombings, which have now killed at least 80 people in 20 strikes. So Trump is claiming that he has inherent constitutional authority to order the strikes to defend the country against acts of war. Legal experts point out that this effectively hands Trump the authority to unilaterally execute civilians who are not waging war against the United States in any recognizable sense. And they note that the bombings might be violating other U.S. criminal and international laws.
On top of all that, there’s already plenty of evidence that some of these boats might not even be trafficking drugs to the U.S. in the first place. But now this memo is leading us even deeper into Trump’s hall of mirrors by effectively claiming this evidence exists because the White House says it does. And anyone who is carrying out these orders should rest assured: The orders are legal. After all, the memo says so.
We need to acknowledge something: This memo’s mere existence could dissuade future prosecution even for acts that do appear illegal, says Brian Finucane, a former senior State Department lawyer. Even if its arguments prove to be “laughable,” Finucane says, those following orders would presumably have relied on advice from the lawyers, which a future administration would have to weigh against the need for “accountability.”
But nonetheless, there’s another way to look at this. It provides an opening for Democrats to now step up and try to establish why this memo’s added assurances were written in the first place. Do those carrying out the strikes fear they are acting unlawfully, and did that make the lawyers take this extra step?
“This could indicate awareness of potential criminal exposure,” Finucane told me. If the Pentagon asked for these assurances, Finucane says, “that may reflect consciousness on their part that they’re in legally treacherous territory.”
Democrats should grab onto this. Recall that Democrats have sought testimony from Adm. Holsey about why he resigned. The Pentagon has said he won’t testify, and Republicans who control the Armed Services Committee apparently are not pushing for it, as they surely don’t want to see him asked if he believed the strikes Trump is demanding are illegal. But if Democrats win the House, they can get to the bottom of all of this.
True, it’s dicey for elected Democrats to say straight out that anyone carrying out illegal orders is vulnerable to prosecution later. That’s up to the next attorney general and the next Justice Department and should be based strictly on what the law says, of course.
But Democrats can say this much: Are you really sure you want to trust Donald Trump, of all people, when he tells you that what he’s directing you to do is lawful and that you’ll be protected later as a result? That’s a pretty tenuous position for anyone to put themselves in—and Democrats should not hesitate to say so.
