New York City Bar Association Statement
Introduction
This September, President Donald J. Trump ordered U. S. military strikes against three private Venezuelan-flagged vessels on the high seas, killing at least 17 individuals and severely damaging or sinking those vessels. A fourth attack, which killed at least four more people, was carried out on October 3. None of these attacks was authorized under U.S. law and, as explained below, each of them appears to be an unlawful summary execution prohibited by both U.S. and international law. Although the President has, without proof, characterized the victims as “terrorists” and drug traffickers, that claim, even if true, provides no justification for these unlawful executions. Even if, as recently reported, the President has communicated to Congress that he has “determined” that the United States is in an “armed conflict” with drug cartels, absent congressional authorization of these military actions, they remain unlawful.
The President has announced that more attacks on Venezuelan vessels are planned and has reportedly positioned U.S. armed forces in the Caribbean to conduct more strikes against civilian boats and even against the Venezuelan government. If carried out, such actions risk open hostilities with Venezuela (and other neighboring countries) and might serve as a dangerous precedent for further misuse of our armed forces abroad, and perhaps even within the territory of the United States, including summary executions of anyone the President unilaterally declares “drug trafficking cartels and narcoterrorists.”
Both U.S. and international law provide authority for law enforcement officials to arrest alleged drug traffickers or other individuals suspected of terrorist acts, whether on the high seas or in U.S. territorial waters, and to try them in accordance with due process of law in U.S. courts. Indeed, this law enforcement paradigm has been applied, on a bipartisan basis, by presidents over the decades to block or slow the unlawful trafficking of drugs into the United States. There is, however, neither a lawful nor factual justification to engage our armed forces to use lethal force in international waters in the absence of lawful armed conflict or self-defense.
We therefore call upon the President to desist from any further unlawful attacks on the high seas. We also call upon Congress to remind the President that he lacks authority to continue to misuse our military forces for similar unlawful attacks on foreign vessels and their civilian crews and that continuation of such attacks is unlawful. Congress and the courts have a critical role in requiring the President to comply with the Constitution and our treaties with respect to the use of armed force, and they must not abdicate that responsibility in the case of these (and threatened future) attacks.
Constitutional and Congressional Limits on Presidential War Powers
To be lawful, any use of force commanded by a U.S. President must meet the requirements of the U.S. Constitution and international law. Article I, section 8 of the United States Constitution explicitly reserves to Congress the power to declare war, which over time has meant that Congress must authorize the use of military force. The President serves as Commander-in-Chief, which authorizes him to command the use of force when authorized by Congress and in cases of actual self-defense. Because there has been no such authorization to use force against Venezuela or against ships operating in the area (or any plausible threats justifying self-defense), the President’s military actions against the Venezuelan vessels and their crews cannot be justified as an exercise of the President’s power to use force authorized by Congress.
Nor is it a lawful use of force carried out under the President’s inherent powers as Commander-in-Chief. Under the 1973 War Powers Resolution, the President may introduce U.S. armed forces into hostilities only when specifically authorized by Congress or in the case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The recent attacks on Venezuelan vessels and crew were not authorized by Congress and were not in response to any such attack on the United States, its territories, possessions or armed forces. Rather, on the facts as they have been presented by the President and the press, these boats were targeted based on a purported justification that drug trafficking presents a broad threat to national security, not that the United States or U.S. forces were under threat of “attack.”
Following the September 11, 2001 Al Qaeda attacks on the World Trade Center and Washington, D.C., Congress also adopted an Authorization for Use of Military Force (AUMF) authorizing the President to use military force against “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Although previous administrations construed the 2001 AUMF broadly to justify military actions in Afghanistan, Libya and Syria, there has been no claim by the President that either Venezuela or the vessels attacked by the United States have any such link to Al Qaeda, its enablers or any of its affiliated terrorist groups. The AUMF therefore provides no basis for the President’s military actions against those vessels and their crews.
Congressional Legislation Authorizing Interdiction of Narcotics Traffickers
Although the President had no authority to use military force against the Venezuelan vessels, U.S. law provides ample authority to interdict and search both the crews and vessels suspected of carrying narcotics for sale or use in our country. Specifically, 14 USC section 522 authorizes the Coast Guard (with assistance from the Navy) to carry out such arrests and to use such reasonable force as is required for that purpose. Those individuals suspected of trafficking are then transferred to the appropriate federal law enforcement agency for prosecution in accordance with all applicable U.S. law and due process requirements. In the case of the Venezuelan vessels, it appears that no efforts were made to utilize the Coast Guard for this Congressionally authorized police function or to comply with any of the section 522 procedures. Instead, the Venezuelan vessels were simply targeted, and their crews executed, by overwhelming and unlawful military force.
International Treaty Violations
Any attacks against the armed forces or territory of Venezuela may also violate basic international law. Article 2(4) of the United Nations Charter, which as a ratified treaty is binding on the United States, prohibits “the threat or use of force” against the territorial integrity or political independence of any other state, except when authorized by the Security Council or in self-defense pursuant to Article 51 of the Charter. Similarly, Articles 19, 21 and 22 of the Charter of the Organization of American States (OAS) commit all member states, including the United States, to refrain from the use of armed force against other member states, except in self-defense. The OAS Charter also reiterates, in Article 3(h), the shared inter-American principle that an act of aggression against one member state is deemed aggression against all members. Since the U.S. and Venezuela are both members of the United Nations and the OAS, the President’s threats of further unlawful attacks against Venezuelan vessels – and, as reported, the Venezuelan government – appear to violate our nation’s obligations under both the United Nations and OAS Charters.
Beyond these Charter violations, the U.S. has also ratified and is bound by the International Covenant on Civil and Political Rights. Article 6 of that Covenant reiterates the established international principle that “No one shall be arbitrarily deprived of his life.” Attacking and intentionally killing the crews of private vessels because they are allegedly trafficking narcotics is an arbitrary deprivation of life and a clear violation of this universally accepted foundation of international law.
Congressional Action
Because the recent attacks on Venezuelan vessels and their crews were unauthorized by U.S. law and in violation of binding international law, they were illegal summary executions – murders. It is imperative that Congress act promptly, as pending legislation proposes, to make clear to the President and the nation that the President’s threat of similar attacks on Venezuelan vessels (and on Venezuela itself) are unlawful and must not be repeated. Only by doing so can Congress bring our nation into compliance with the Constitution and international law, reduce the risk of hostilities with neighboring countries and assure that similar abuses of Presidential power do not expand to American shores.
About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has over 20,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org.