Trump used the military to target a Venezuelan vessel. Is it legal?

0:15My generals. During his first term, President Trump used that phrase a lot. And in his second term, Trump has leaned even more into his role as commander-in-chief of the U.S. military. In June, Trump finally got a military parade. He'd been asking for one since his first term. The Army's 250th birthday happened to fall on Trump's 79th birthday. Trump waved as tanks rolled through the streets of Washington. A military parade of such magnitude is unusual in the U.S. during peacetime. Time and again, America's enemies have learned that if you threaten the American people, our soldiers are coming for you.

0:54Your defeat will be certain, your demise will be final, and your downfall will be total and complete. More recently, Trump rebranded the Department of Defense the Department of War. Really, it has to do with winning. We should have won every war. We could have won every war, but we really chose to be very politically correct or wokey. And in this second term, Trump has not only leaned into the symbolism of the military, he has also seized opportunities to deploy military force. That includes in the United States, where he's deployed the National Guard in Los Angeles and Washington, both cities led by Democrats.

1:34Other cities are hopefully watching this. They're all watching, just like everyone's watching here. They're all watching. And maybe they'll self-clean up. Overseas, the U.S. military has also carried out actions that defy precedent. Here's Secretary of State Marco Rubio. We destroyed a drug boat that left Venezuela, operated by a designated narco-terrorist organization, which is what these are. Over the past few weeks, President Trump has ordered military strikes on Venezuelan boats. The attacks happened in international waters and killed at least 14 people, likely Venezuelan citizens. These strikes really are without precedent and go much farther than what other presidents have authorized.

2:21Consider this. Do the strikes on Venezuelan vessels signal a new way of using the military abroad? And is it legal? From NPR, I'm Ari Shapiro.

2:45It's Consider This from NPR. A 30-second video clip shows a boat bobbing in the water, then a fireball and a huge plume of smoke. President Trump posted the footage on social media this week, saying he ordered the U.S. military to attack what Trump called narco-terrorists from Venezuela. It's at least the second time this month that President Trump has ordered this sort of a deadly strike on a boat that he claims carried illegal drugs. The attacks raise big legal questions, questions that John Bellinger has wrestled with for years. He was legal advisor to the State Department during the George W.

3:20Bush administration, and he also testified to Congress about lethal drone strikes during the Obama administration. Welcome. Nice to be with you, Ari. Venezuela's president, Nicolas Maduro, called the first attack on a boat, quote, a military action on civilians who were not at war and were not militarily threatening any country. We don't know who was on the boats or whether they were carrying illegal drugs, as Trump claims. But what legal authority is the president using to order these attacks without any prior approval from the courts or from Congress? Well, it's unclear is the answer. The attack based on the facts that the White House has put out so far for both attacks is that it's legally questionable under both U.S.

4:03and international law. The president, after the first attack on September 2nd, filed a report with Congress called a War Powers Report in which he said that he was acting under his constitutional authority under Article 2 of the Constitution. He didn't claim any congressional authority, and he said that it was an action in self-defense, but he didn't specify whether the vote or the people on it posed any particular threat, whether they had conducted an attack or were planning an attack. So the president said that he had the constitutional authority to do it. He said he was acting in self-defense, but he really didn't lay it out in any detail.

4:49As far as the second attack on September 15th, he has not laid out in any detail what the basis was for that. So if I could just parse what you're saying, the president is claiming this is his constitutional authority under Article 2, that the U.S. is acting in self-defense against an imminent threat and that these drug cartels are a terrorist organization in the president's designation that the U.S. is, am I correct, effectively at war with in his analysis? Well, it's not clear whether he is saying that we are at war with these groups. He says that they are a terrorist group and that they're engaged in drug trafficking.

5:32Now, his War Powers report used the words self-defense, but never said that this group had either attacked the United States or was planning an attack against the United States. So this is different than what prior presidents have done in launching drone strikes or other attacks against members of al-Qaeda or ISIS. So you said that these claims are questionable under U.S. and international law. Typically, those questions would be answered by some kind of judicial process in court. Is there such a process? Can these claims be evaluated? Under U.S. law, sometimes there can be challenges in court, but the courts generally try to stay out of these questions, finding that they are non-justiciable.

6:18At the international level, I have not seen a single international lawyer who thinks that it's permissible for a country to blow up the civilians of another country on the high seas unless they were actually posing an imminent attack. But the question is really, is this the sort of thing that Americans would think is acceptable if other countries did it? If Russia or China or a country closer to home like Mexico or Canada just blew up a boat on the high seas with suspected drug traffickers, possibly even Americans in it, would we think that that's OK? I don't think President Trump and his administration are likely to be held accountable for this, but it certainly raises very serious questions under both domestic law and international law.

7:07So where do you think this is likely to lead? Well, as the former lawyer for the State Department, where we really assess whether actions of the United States are lawful under both domestic law and international law and whether if another country did this same thing, we would think it was acceptable. I think that it's important for all Americans and their representatives in Congress to ask tough questions about this. What was the basis for this? You know, there is some, if more facts were to come out that were to show that this boat had people on it who were planning an attack against the United States, that would be one set of facts and might justify it.

7:50On the other hand, if this was just a group of drug traffickers who were bad guys, this is not the way the United States or other countries generally deal with a threat like that. We would use our Coast Guard to interdict it. We would arrest the people. These strikes really are unprecedented, particularly if they continue. I think it's important for Congress and the American people to ask tough questions about whether this is really consistent with the rule of law and the kind of country that the United States wants to be. That's former State Department Legal Advisor John Bellinger. He's now a senior fellow on international law at the Council on Foreign Relations.

8:28Thank you for your time. Thanks, Ari. Nice to be with you. This episode was produced by Vincent Acovino. It was edited by Courtney Dorning and Justine Kennan. Our executive producer is Sammy Yenigan. It's Consider This from NPR. I'm Ari Shapiro. And a couple things before we go. First, a big thank you to our Consider This Plus listeners who support the show. Your contribution makes it possible for NPR journalists around the world to do their jobs. Supporters also get to hear every episode in even less time with no sponsor messages. Learn more at plus.npr.org. And speaking of listening to podcasts, NPR is launching a newsletter called Pod Club, written each week for podcast fans by podcast fans.

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