Trump calls cartels terrorists. Is that enough to go to war?

0:00Nine days after the September 11, 2001 terrorist attacks, President Bush laid out a roadmap for a new kind of war. Our response involves far more than instant retaliation and isolated strikes. Americans should not expect one battle, but a lengthy campaign, unlike any other we have ever seen. The enemy was not a nation state, but rather an armed group. And more than that, it was an idea. Our war on terror begins with al-Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated. And as the decades have gone by, that open-endedness has become a defining feature of the war on terror.

0:54Last month, I ordered our military to take targeted action against ISIL to stop its advances. More than a decade after 9-11, President Obama used some of the same legal reasoning and the same congressional authorization to justify attacks on the Islamic State, or ISIL, a sworn enemy of al-Qaeda, and also a drone strike that targeted and killed an American citizen. In 2020, in President Trump's first term, it was yet another enemy, Iran. Last night of my direction, the United States military successfully executed a flawless precision strike that killed the number one terrorist anywhere in the world, Qasem Soleimani.

1:36Trump, too, cited Bush-era legal authority. Today, nearly a quarter century after the September 11th attacks, the Trump administration is using the language of terrorism to target a new enemy, Latin American drug cartels. The president has designated these as terrorist organizations, which is what they are. When you flood American streets with drugs, you are terrorizing America. And that's going to end. That is Secretary of State Marco Rubio in September after the first of several U.S. military strikes on boats in the Caribbean that the administration says were trafficking drugs. Consider this.

2:12The president says we are in armed conflict with drug cartels. We will talk to a Bush-era lawyer who says the powers of war are too extraordinary to use against crime.

2:26From NPR, I'm Scott Detrow.

2:37It's Consider This from NPR. We got some more details late last week about the Trump administration's legal justification for recent attacks on alleged drug boats in the Caribbean in the form of a notification sent to Congress and obtained by NPR. It says that the president has determined the U.S. is in armed conflict with unspecified drug cartels. That argument has found many critics, including law professor John Yoo. He was a lawyer in the Bush administration's Justice Department and played a key role in developing the legal justification for the war on terror after 9-11, as well as the ways the U.S.

3:11government interrogated people captured during that war. John Yoo, welcome to the program. Hi, great to be here. I want to start with something that you wrote recently. You wrote that war invokes powers too extraordinary to be used against crime. Walk me through what those powers are and why it's important to you and to many legal scholars to keep them separate. Our constitution, our laws distinguish between war and crime. For example, if you are arrested by the government because you're suspected of a crime, you get all the protections of the Bill of Rights. You have the right to be presented to a judge, to learn the charges against you, to get the Miranda warnings, a lawyer, ultimately be tried by a jury before you're sentenced.

3:54Think of war. We try to kill the enemy or detain members of the enemy if they can't fight. You don't have to have evidence. You don't present it to a judge. You don't go out and arrest people and give them a trial because you're fighting a foreign enemy that threatens a national security. So the most important problem is identifying who's really an enemy versus what's part of just a perpetual social problem we have. I mean, arguably, illegal drugs and overdoses have killed way more people than terror attacks in the United States. Should that be part of the consideration? Do you think there's a clear cut?

4:35This is a standard crime, even if it has deadly effects and this is a war? You're definitely right. The harms that our country suffers from crime are definitely higher. I think last year or the last two years we've lost about 100 ,000 a year, maybe 200 ,000 every two years just to fentanyl and other drug overdoses, which is way more than the casualties in Korea, Vietnam, Iraq, or Afghanistan. But the harm to the country itself does not define whether something's war or crime. You could say murders inflict way more harm on the United States than a lot of the wars that we fought. But we don't use the military to fight murders at home.

5:20Instead, I think what you need to see is a foreign entity that is using force against the United States because of a political agenda, because of disagreement with our ideology, to take territory for political objectives. What to you is the main difference then between an international terrorist group like Al Qaeda and a big drug trafficking group? Is it just the overall end goal that each of them has? Yes, in part. So I was at the Justice Department, as you said, on 9-11. And we had to actually face the question that we really hadn't faced in the United States before, whether we could have a war against something that was other than another country.

6:02And we decided that Al-Qaeda and other terrorist groups were much like a foreign country in the level of force they could use against us, why they used force against us, for political reasons. I think that that decision with drug cartels that are not connected, they're not fighting for Venezuela, for example, but just drug cartels don't pass that test because they aren't using force against us because they disagree with us politically, because they want to harm the country, because they have some ideological agenda. They just want to make money. The Trump White House is drawing a clear line between what it is doing here and what the Bush administration first articulated 20 some years ago and what the Obama administration in many ways continued as policy.

6:48And I'm wondering, as you have seen this played out and used in different ways, have you had any second thoughts about the standards that you and others put into place in the wake of 9-11? I don't. And I'm not saying that we have perfect answers. We were under a lot of pressure on September 11th itself while we were suffering attacks from Al-Qaeda. But the way we thought about it was, can we ever use the military against something other than a nation? And look, there were a lot of people in Congress and in the academy and media who were critical of that view. That's why we went to Congress and within a week got an authorization to use military force.

7:27And we went to the Supreme Court. when the very first detainees were captured out of Afghanistan and the Supreme Court agreed. I think that's something that the Trump administration should do. Because I think they're going out way on a limb, way beyond what we did. They're going to have to get Congress to agree. And I think that would then have a big influence on the way the Supreme Court will view it when these cases start to come up later this year. How much of a difference to you would congressional authorization make here? Would it make a difference at all, or do you think this is still a clear-cut case that they are using powers that they don't have?

8:02I think it would make a big difference in this sense. I think everyone agrees, no matter where you fall on the debate over whether Congress has to authorize force or not, I tend to think it doesn't. But everyone agrees that if the United States is attacked, the president can automatically respond without having to go to Congress. But the problem here is that it's not clear whether the United States is being attacked by the operations of drug cartels. And so if you're going to go out as the White House and really push this argument into new territory, then congressional support becomes all important because the Supreme Court wants to see the president and Congress in agreement if it's going to bless some new kind of war that we've never seen before.

8:45I tend to think the Supreme Court is going to be very leery of it because they see as their mission the protection of the individual rights of Americans and everyone who lives here under the Bill of Rights. And this argument that the government can wage war against drug gangs has such obvious implications in policing in the United States that the court's going to be very skeptical. That is John Yu, a law professor at the University of California, Berkeley. Thanks so much for talking to us. Thank you. Great to be with you.

9:19This episode was produced by Connor Donovan. It was edited by Courtney Dorning. Our executive producer is Sammy Ennigan.

9:29It's Consider This from NPR. I'm Scott Detrow.