Are Boat Strikes Legal & Right to Counsel

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1:31This is Bloomberg Law with June Grosso from Bloomberg Radio. Venezuelan President Nicolas Maduro said he's asked Pope Leo XIV to help maintain peace in the South American country. Maduro's comments come as the United States military continues to strike alleged drug-carrying boats in the waters off Venezuela in what President Donald Trump has declared an armed conflict with cartels. We're blowing the Venezuelan narco-terrorists. We're blowing them the hell out of the water. Every time you see a boat, thousands of people die from the cargo in that boat. Thousands of people die. The U.S. military has carried out four deadly strikes in the Caribbean since last month.

2:20The latest killed four people on Friday. The Trump administration has told lawmakers the president is treating drug traffickers as unlawful combatants and military force was required to combat them. That assertion of presidential war power sets the stage for expanded action and raises questions about how far the administration will go without a sign-off from Congress. My guest is an expert on national security and the law of armed conflict. Matthew Waxman, a professor at Columbia Law School. Why has President Trump labeled the drug runners as a foreign terrorist organization and call them narco-terrorists?

3:03So I think it makes sense to think about the Trump administration's actions as an escalating series of legal moves. It had designated some cartels as foreign terrorist organizations or FTOs. That unlocks certain criminal law, immigration, and sanctions authorities. It invoked an ancient law going back to 1798 that authorizes the swift removal from the United States of enemy aliens. Quote, enemy aliens is the term, and it applied that to suspected members of Trente de Aragua. It's used lethal force against Tranda de Aragua drug vessels or suspected vessels in the Caribbean, claiming that these were done in self-defense.

3:57And then most dramatically of all, the Trump administration has labeled its conflict with certain international drug cartels as a, quote, armed conflict, which is a legal state of war. And one of the most significant implications of that declaration is that it would justify using lethal force against cartel members, essentially treating them all as enemy soldiers. Now, the Trump administration has provided very little information, so we still don't really know how far the Trump administration is stretching that theory. But the basic gist is that the Trump administration is saying that the United States is, as a legal matter, in a war with drug cartels, and therefore it can target their members just like the United States could target enemy soldiers.

4:55As far as saying this is being done in self-defense, Senator Rand Paul of Kentucky challenged that. He said the U.S. has the right to self-defense but argued that right is not triggered by a speedboat 2 ,700 miles from the U.S. alleged to have drugs and not attacking U.S. vessels. And Secretary Hegseth, when he described the latest strike, said they were bringing drugs. So where is the element of self-defense here? Yeah, I think there are two problems with the self-defense argument. The first is that as a legal matter, self-defense usually requires that either you've already been attacked or an attack is imminent, right?

5:41If a missile were headed towards the United States or an enemy aircraft, you could take some self-defensive action when it was about to attack us. But here we're talking about vessels that were far out at sea. In fact, the Trump administration has even conceded that they were distant from the United States. They could have been interdicted, but the Trump administration decided to use self-defensive lethal force instead. I think a second problem with claiming self-defense is that usually it would require that a violent attack be directed against the United States. And it has to be essentially the use of military violence against the United States.

6:36And here we're talking about the infiltration of violent gangs. We're talking about the infiltration of very, very dangerous narcotics. But that's different. That's a very different kind of harm than the kind of kinetic military violence that traditionally gives rise to a right of self-defense. I mean, who would actually sue the United States in this situation? Would anyone have standing to sue and say these strikes are against the law? Maybe. I mean, this is a general challenge with international law, is that in most cases there is not some centralized authoritative enforcement mechanism. International law tends to be enforced in sort of a decentralized way, And often it's the responsibility of states to hold other states responsible.

7:35It's possible that there could be litigation here. I've heard chatter about, for example, an international court getting involved. I think that is very unlikely and would have virtually no effect at all on U.S. actions. It's possible that there might be litigation here in the United States, but that's going to be hard, especially because those who you might expect to have a case against the United States are already dead. I think where one might see some enforcement, and I would put the word enforcement in quotes here, is from U.S. partners and allies, that international law tends to play an important role in facilitating cooperation among states.

8:25And that kind of cooperation is especially important to stemming the drug trade, to promoting U.S. interests in the hemisphere. And so one thing I'll be watching for is the extent to which partners and allies in the region and further abroad are sort of pushing back and imposing some diplomatic or political costs on what the United States is doing here. Also, the Trump administration is bulking up in the southern Caribbean with at least eight warships, one nuclear submarine, more than 4 ,000 troops, fighter jets, drones and surveillance plans. It's been called the biggest U.S. naval mobilization in Latin America since the invasion of Panama in 1989.

9:13And according to Bloomberg sources, Trump has hinted that the U.S. is going to turn to interrupting the flow of drugs on land in Venezuela. How much of a step up is that and where do they get the authority for that? Yeah, that would be a major escalation and would pose additional legal problems. And it raises additional legal issues because the United Nations Charter prohibits the use of military force against the territorial integrity of UN member states. That's one of the kind of bedrock ideas in the UN charter. And so unless another state consents to the use of U.S. military force on their territory, the United States would need to justify doing so.

10:07And I suppose the best theory, the best argument would be either that Venezuela itself has attacked the United States. We haven't really seen any evidence of that. In fact, I think the best indication of what the intelligence community has been reporting is that the Venezuelan government has not been directing attacks against the United States. Another argument, though, might be that the government of Venezuela has been unwilling or unable to stem the flow of drugs from its own territory headed towards the United States. I think that's probably what the Trump administration would argue. There again, you come back to this problem, though, that under international law, there's a right of self-defense against military attacks, so-called armed attacks.

11:04But there isn't a right of self-defense against other kinds of harms. They could be environmental harms. They could be dangerous drugs. They could be ransomware. There are lots of harmful activities that cross borders. International law does not recognize a right of armed self-defense against those harms. The right of self-defense is really limited to armed attacks. Where does it fit in or how does it complicate matters that the Trump administration has called President Maduro a narco-terrorist? who's orchestrated drug trafficking, and the U.S. has offered$50 million for information leading to his arrest.

11:53Yeah, you know, one challenge here for lawyers and those who are trying to analyze the situation is it's very hard to distinguish between administration rhetoric and administration sort of public posturing and its actual legal arguments. The administration has said very, very little about its legal theory. It said very little about the facts that would support its claims of self-defense that would underlie this claim that the United States is engaged in an armed conflict. And until we have more of those facts, until we have greater clarity on what the Trump administration is arguing, it's very difficult to draw much in the way of conclusions.

12:40I think the Trump administration is making an error in not being more forthcoming. I think it's incumbent on the United States to make clear its legal justifications, especially when it comes to military actions abroad. And I think it's undermining any chance it has to try to persuade partners, allies, other states, other actors of the legitimacy of its actions by being so opaque in its legal arguments, so opaque in the basic facts that it's basing its actions on. Coming up next, where a leaked memo fits in. This is Bloomberg. This message is brought to you by Apple Card. Apple Card puts the power of titanium in the palm of your hand.

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14:08Plus one conversation on the day's biggest developments, all in just 15 minutes. Subscribe to Bloomberg Daybreak for a precise, thoughtful take on the stories that matter. Listen to Bloomberg Daybreak each morning on Apple, Spotify or anywhere you listen. The U.S. military has carried out four deadly strikes against alleged drug-carrying boats in the waters off Venezuela in what President Trump has declared an armed conflict with cartels. The Trump administration has told lawmakers the president is treating drug traffickers as unlawful combatants and military force was required to combat them.

14:47I've been talking to Columbia Law School professor Matthew Waxman. What's the import of that leaked memo that the Trump administration sent to Congress saying that the government had decided it was in a non-international armed conflict with the designated terrorist groups from Venezuela? That, as far as I know, the most extensive explanation of its legal arguments. And I think it's telling that we only know about it because it was leaked and then reported, I believe, first in The New York Times. And that's an example of where I think it would behoove the Trump administration to at least explain publicly its actions.

15:32I think that would not only be the smart thing to do from a policy and legal standpoint, but I think it's also the right thing to do in a rule of law democracy. While I'm critical here of the Trump administration's legal claims, I don't want to cast any doubt on the grave harms that narcotics trafficking is causing here in the United States, untold numbers of deaths, violent crime. And we are talking about narcotics traffickers who do wield violence in a very brutal way, not against the United States government, but against individuals. And it is a problem that is a tragic one. The Trump administration is right to take very, very aggressive actions to try to stem the tide of narcotics trafficking, especially coming across our southern border.

16:38But there are some deep legal problems or at least big question marks about some of the specific methods it's been using and the way it's tried to justify them. What do you think will come from Trump designating Antifa as a major terrorist organization? Well, that's different for a couple of reasons. One is that's just not a thing in law. There are statutes that create a designation of a foreign terrorist organization, and that carries some legal consequences. There is no parallel for what one might label domestic terrorist organizations. And I think the Antifa case shows one reason why, which is it is very susceptible to politicization, how one labels a domestic group or a domestic political movement.

17:41And one thing that I think would be especially damaging to the political process here within the United States would be the use of terrorist designation to try to go after political enemies. And I'm not making a judgment here about Antifa and what it is or isn't. I'm just saying that I think there are good reasons why the United States government has created such a category of foreign terrorist organizations, but not taken a parallel step in the past for domestic terrorist organizations or so-called domestic terrorist organizations. Do you think that the president having broad latitude in matters of national security and determining what that is would play in here if this was somehow challenged?

18:38I think it would. But, you know, historically, the president has had a lot of flexibility to determine threats to the U.S. national security, national defense. And I think there are good reasons for that. The president of the United States has the power, the agility to act quickly. The president has access to valuable information to try to make those kinds of assessments. But deferring to the executive branch, to the president on these kinds of matters has always carried a big danger, which is the president might overreach. The president might abuse those powers. And this has been a challenge since the birth of the republic.

19:30And I think one thing we're seeing from the Trump administration is really the worst kind of overreach across a range of issues. And so I think it's calling into big doubt whether the system of checks and balances that we've relied on really are continuing to function in the Trump era. That's a question that many have asked recently. Thanks so much, Matthew. That's Professor Matthew Waxman of Columbia Law School.

20:29are shaping the next phase of globalization by strengthening resilience and driving a multi-speed energy transition across Asia's diverse markets. Join us for solutions-driven discussions and networking opportunities. Thank you to our summit advisor, Bangkok Bank. Learn more at BloombergLive.com slash SBS dash Singapore. Turning now to other legal news. It's the most difficult decision a criminal defendant has to make at trial, whether or not to take the stand. And when a defendant does decide to take the risk of testifying, how can his attorney advise him during that testimony? That question was at the heart of oral arguments before the Supreme Court on the first day of the term.

21:14David Villarreal took the stand during his trial for murdering his boyfriend. When there was an overnight break in his testimony, the judge barred Villarreal's attorney from discussing his testimony with him. Villarreal was convicted and sentenced to 60 years, but he says that his constitutional right to counsel was violated by the judge's order, and he's asking the Supreme Court to overturn his conviction. During the oral arguments, the justices questioned just what kind of broader trial strategies a lawyer could talk to his client about during an overnight break without crossing over into coaching the client's testimony.

21:56Chief Justice John Roberts posed a hypothetical to the lawyer for the state of Texas about a defendant asking his attorney whether he should stop testifying about Fred when he got back on the stand. And I notice every time I do that, you know, juror number eight gets a big frown and shakes his head. He doesn't look to me like he likes the idea of talking about Fred at all. So I think that's a bad idea. Now, talking about Fred was your idea. Do you still think it's a good idea? Can the lawyer respond to that question? No. They would have to tell them I'm under a court order not to answer that. So at that point he tells the defendant who's facing a capital sentence, I'm not going to tell you.

22:39It's a very simple thing. Don't talk about it. He's not saying particular things, but let's stop talking about Fred whenever we can. Justice Elena Kagan's hypothetical was more along the lines of how the defendant performed during his testimony. Do you think that counsel can say, listen, I've been noticing that you've been mumbling, and you're also not making eye contact with the questioner, And it would just be a good idea if you stopped mumbling and made eye contact. Can the lawyer do that in an overnight recess? My guest is former Manhattan prosecutor and criminal defense attorney Paul Callen of counsel at Edelman and Edelman.

23:23Paul, tell us about the facts here. The defendant, David Villareal, was a meth addict, allegedly, who stabbed his boyfriend to death. And he goes to trial and something happened in that trial. And it's something that's very common in the trial of civil and criminal cases. And that is, he was on the witness stand testifying, and the judge decided to break for the day. It was about one o 'clock in the afternoon. And the judge gave an instruction, which defense attorneys have said was a limited instruction, which suggested that the defense attorney should not discuss testimony overnight with his client, because he was on the witness stand.

24:09And later on, he's convicted, sentenced to 60 years in prison. And now he's seeking to reverse the case, saying that instruction impeded his right to consult with counsel pursuant to the Sixth Amendment. So there was a lot of talk during the oral arguments about coaching your client, or somebody called it managing your client's testimony. Is there a clear line between what's permissible and what's impermissible when coaching a client or preparing a client to testify? Well, there's a line you cross, and we call it subvernation of perjury. If a lawyer goes too far in giving advice to his client about how he should shape his testimony.

24:54And so lawyers always have to deal with this situation, that they can't give advice that would constitute subvernation of perjury. Lawyers do. And it's their job to give a client advice, though, about how to testify on a witness stand, how to conduct themselves on the witness stand, how to react if there's an objection made in court, all kinds of technical aspects of testimony like that. Clearly, lawyers are allowed to give that kind of advice. But this is the situation that comes up all the time in both civil and criminal cases when there's a recess in the case. The client wants to talk to the lawyer, how am I doing?

25:30Am I doing okay on the witness stand? And the lawyer wants to encourage them and say, yes, yes, you're doing great. Or no, that was a stupid answer you gave. Try to listen to the questions that are being asked. So there are a variety of ways that lawyers approach this thing. So the courts really have gone back and forth on it. There are some court decisions saying that during the course of testimony, if there's a brief recess, recess 15-20 minute recess you can talk to your client but you shouldn't discuss testimony during that time period when there's a long adjournment like overnight then it gets really tricky because really most lawyers think they shouldn't be discussing testimony with the client but there may be other things that have to be discussed should i recommend a plea because the testimony is going so badly should i tell the witness that if he's going to stick with this kind end of a story.

26:25We need another witness. Maybe he's got a friend who was refusing to testify, but now you say he's got to come in and testify given the way your testimony is going. So there's sort of an interreaction between testimony and even testimony that you're not trying to shape and how it affects other aspects of the case as the case proceeds. So this is a really tricky question for lawyers. And this will be a closely watched case if the Supreme Court hands down, you know, a clear decision on it. There have been decisions in the past, but they've been sort of vague and they've kind of gone both ways in terms of whether you can talk to a client while he's on the stand.

27:03Paul, the justices posed all kinds of hypotheticals of what a lawyer might say to a client during an extended break in his testimony. Listen to the chief justice is hypothetical and tell me what you think. And the defendant says something like, counsel, you remember when we were preparing for this, we both agreed we should try to get the jury to focus on Fred. And whenever it's reasonable, I should mention Fred. And I've been doing that. And I notice every time I do that, you know, juror number eight gets a big frown and shakes his head. He doesn't look to me like he likes the idea of talking about Fred at all.

27:42So I think that's a bad idea. Now, talking about Fred was your idea. Do you still think it's a good idea? Can the lawyer respond to that question? That's a tough one. That's a really tough one. And as a matter of fact, that issue has come up as these cases have been briefed by the various parties. Because remember, the right to counsel in state cases only really was reserved to the states as well as the federal government in the 14th Amendment in the 1800s. Before that time, The law was, it was all federal law, and it was that you really could talk to your client while he was on the witness stand.

28:20Now, sometimes it was hard to do that because the clients were kept in a cage in the middle of the courtroom. So it would be very hard to send signals to him during court recesses. If he's sitting in a cell, essentially, that was a box in the middle of the courtroom, that's how some colonial courts were set up. So this really is an evolving case law after the 14th Amendment applied, the 6th Amendment to the states. So state courts and federal courts have gone in different directions in a lot of respects on this. Some of the state courts have said it's OK. It's all right. You have a constitutional right to confer with your client at any point in time.

28:58And other courts have said no, reasonable restrictions are acceptable. With this order of, you know, you can talk to your client, but you can't discuss, directly discuss the testimony, and the justices discuss this a lot, because Villarreal's lawyer argued that that no direct discussion of testimony rule is unworkable in the real world, because if you're discussing a plea agreement, for example, because you think that your client did lousy on the stand, and your client says, well, why should I take a plea? that it's very hard to draw a clear line in these cases. Villarreal's lawyer made a very compelling argument in that regard because so much of the client's testimony, I mean, if you put a defendant on the witness stand in a criminal case, his testimony is now the key evidence of the entire case.

29:50And if it triggers problems that may cause you as a lawyer to have to go out and get another witness or maybe bring in some kind of an expert because he's raised something about the impossibility of how a bullet was fired or was aimed when the murderous shot was fired or the stab wound it would be in this case. Yeah, the testimony interacts from the legal standpoint with all of the evidence in the case. So you restrict the lawyer's ability to talk to the client. You can't just keep it down to the testimony alone. Everything interacts with everything else. That's what Bill and the way his lawyers are arguing.

30:27so that the conviction here will be reversed. Justice Elena Kagan asked this of Texas's lawyer. Do you think that counsel can say, listen, I've been noticing that you've been mumbling and you're also not making eye contact with the questioner, and it would just be a good idea if you'd stop mumbling and made eye contact? Can the lawyer do that in an overnight recess? And Texas's attorney said, no, I would consider that to be coaching their testimony as far as how you present yourself to the jury. Of course, he's arguing for Texas, so his view is very limited about what should be said. But do you think that that would be coaching?

31:08Well, whether it's coaching or not, I don't know. It probably is coaching. But that kind of coaching is exactly what you get hired to do as a lawyer, to school your client in how he can present his truthful testimony in the best way possible to the jury. And I think most lawyers view this situation where a client is on the witness stand that they will not often tamper with the content of the testimony in their discussions with the client. But they may say, listen, stop looking down. It's making you look guilty. Look at the guy who's asking you the question. And it's okay to glance over at the jurors from time to time with your head up.