The Trump administration has made a series of startling admissions about the people it is killing in its undeclared war against suspected drug smugglers in the Caribbean Sea and the Pacific Ocean. Trump officials acknowledged in separate briefings provided to lawmakers and staffers on Thursday that they do not know the identities of the victims of their strikes, and that the War Department cannot meet the evidentiary burden necessary to hold or try survivors of the attacks. Such victims who find themselves in the water are now deemed \u201cunprivileged belligerents,\u201d a murky designation under international humanitarian law.<\/p>\n
Since September 2, the U.S. military has been attacking boats in the Caribbean and eastern Pacific Ocean, killing more than 60 civilians<\/a>. The Trump administration insists the slayings are permissible because the U.S. is engaged in \u201cnon-international armed conflict<\/a>\u201d with \u201cdesignated terrorist organizations<\/a>,\u201d or DTOs. Two government officials told The Intercept that the administration secretly declared a \u201cnon-international armed conflict\u201d weeks if not months before the first attack of the campaign.<\/p>\n Trump has justified the attacks, in\u00a0a War Powers report to Congress<\/a>, under his Article II constitutional authority as commander in chief of the U.S. military and claimed to be acting pursuant to the United States\u2019 inherent right of self-defense as a matter of international law. The Justice Department\u2019s Office of Legal Counsel has also produced a classified opinion that provides legal cover for the lethal strikes.<\/p>\n Experts in the laws of war and members of Congress say the strikes are illegal extrajudicial killings because the military is not permitted to deliberately target civilians \u2014 even suspected criminals \u2014 who do not pose an imminent threat of violence. The summary executions are a significant departure from standard practice in the long-running U.S. war on drugs<\/a>, in which law enforcement arrested suspected drug smugglers<\/a>.<\/p>\n \u201cWe are not in an armed conflict with these cartels. And so this is just murder.\u201d<\/p>\n The administration has no plans to seek an authorization for the use of military force\u00a0similar to the 2001 AUMF, which authorized counterterrorism operations by\u00a0the U.S. military against those responsible\u00a0for 9\/11,\u00a0Pentagon briefers told lawmakers on Thursday. \u201cEven if Congress authorized it, this would still be illegal under U.S. and international law because we are not in an armed conflict with these cartels,\u201d Rep. Sara Jacobs, D-Calif., a member of the House Armed Services Committee who attended the briefing, told The Intercept. \u201cAnd so this is just murder.\u201d<\/p>\n Jacobs said the Pentagon officials who briefed her on Thursday admitted that the administration does not know the identities of all the individuals who were killed in the strikes. \u201cThey said that they do not need to positively identify individuals on the vessels to do the strikes,\u201d Jacobs told The Intercept. \u201cThey just need to show a connection to a DTO or affiliate.\u201d<\/p>\n Three people are known to have survived the U.S. attacks: two on an October 16 strike<\/a>, and one during a series of attacks on October 27<\/a>. But none have been prosecuted for the supposed drug smuggling for which Trump claims the right to summarily kill them. \u201cThey said they could not actually hold or try the individuals that survived one of the attacks \u2014 in our country or one of the repatriating countries \u2014 because they could not satisfy the evidentiary burden,\u201d said Jacobs. \u201cIt led some to speculate that there\u2019s a higher evidentiary standard to hold someone than to kill them, which is problematic.\u201d<\/p>\n Pentagon press secretary Kingsley Wilson did not reply to questions about why the Department of War is unwilling to positively identify the people it is killing and cannot satisfy the evidentiary burden necessary to hold or prosecute suspects.<\/p>\n Brian Finucane, a former State Department lawyer who is a specialist in counterterrorism issues and the laws of war, noted that Trump administration\u2019s inability to identify the people it is killing \u201ccertainly undermines the labelling of these individuals as \u2018narco-terrorists.\u2019\u201d<\/p>\n Jacobs and other government officials who spoke to The Intercept conjectured that the administration may not want to reveal its sources and methods of determining that the targeted craft are smuggling drugs. \u201cThese individuals don\u2019t matter in the grand scheme of things. It\u2019s not worth it. If it\u2019s not the leader of the cartel, you\u2019re not burning your sources,\u201d said one government official, referring to so-called top secret sensitive compartmented information involving human sources and signals intelligence integral to the U.S. attacks.<\/p>\n Three government officials who spoke to The Intercept said that the Pentagon deems survivors of strikes in the water to be \u201cunprivileged belligerents,\u201d a term\u00a0for those who are not entitled to immunity<\/a>\u00a0from prosecution for lawful acts of war and do not benefit from\u00a0prisoner of war<\/a>\u00a0status if they fall into enemy hands. The term has been used to designate members of a non-state\u00a0armed group\u00a0in a\u00a0non-international armed conflict<\/a>. Experts noted that the designation was used during the global war on terror for Al Qaeda and associated groups.<\/p>\n \u201cThe problem with DoD calling cartels \u2018unprivileged belligerents\u2019 is that the U.S. is not actually in a non-international armed conflict \u2014 a legal term of art that, to be applicable, requires specific facts that just aren\u2019t the current reality \u2014 and so cannot lawfully use lethal force as a first resort,\u201d said Sarah Harrison, who advised military leaders on extrajudicial killings in her former role as associate general counsel at the Pentagon\u2019s Office of General Counsel, International Affairs. \u201cNotwithstanding the fictional narrative being pushed by the White House, the U.S. is not in a war with these groups and the people DoD is targeting are civilians who should be afforded due process.\u201d<\/p>\n Wilson, the Pentagon press secretary, did not reply to a request for comment about the reasons behind the War Department\u2019s use of unprivileged belligerent status for attack survivors.<\/p>\n The Thursday House briefing was led by Rear Adm. Brian H. Bennett, a military officer overseeing Special Operations for the Pentagon\u2019s Joint Staff with assistance from Richard Tilley who serves as the acting assistant secretary of war for special operations and low-intensity conflict. Military lawyers had been scheduled to join them but were withdrawn at the last moment on orders from the Trump administration, according to two government officials who spoke to The Intercept on the condition of anonymity.\u00a0As a result, the Pentagon officials were unable to provide a full explanation of the legal basis for the military strikes.<\/p>\n \u201cI found their justification for what they\u2019re doing so flimsy that it makes the case for the Iraq War look like a slam dunk.\u201d<\/p>\n \u201cAt a classified HASC briefing on recent counternarcotics operations in the Pacific and Caribbean, the Pentagon pulled its lawyers \u2014 the exact people who would supply a legal justification for these strikes \u2014 from the briefing with no notice,\u201d Rep. Seth Moulton, D-Mass., explained<\/a>. \u201cIf the Trump Administration thinks these strikes are legally justified, hiding from Congress sends the opposite message.\u201d<\/p>\n \u201cI found their justification for what they\u2019re doing so flimsy that it makes the case for the Iraq War look like a slam dunk,\u201d he said<\/a> on MSNBC\u2019s \u201cMorning Joe.\u201d \u201cIt was that bad.\u201d<\/p>\n We\u2019re independent of corporate interests \u2014 and powered by members. Join us. <\/p>\n Join Our Newsletter <\/p>\n Thank You For Joining! <\/p>\n \n Original reporting. Fearless journalism. Delivered to you. <\/p>\n Will you take the next step to support our independent journalism by becoming a member of The Intercept?\n <\/p>\n By signing up, I agree to receive emails from The Intercept and to the Privacy Policy<\/a> and Terms of Use<\/a>.<\/p>\n The Pentagon has been withholding key information about the attacks and the list of DTOs for almost two months. During a Wednesday press conference, Sen. Mark Warner of Virginia, the senior Democrat on the Senate Intelligence Committee, blasted the Trump administration for conducting a secret briefing on the legal rationale for the strikes for a select group of Republican senators on Wednesday after Secretary of State Marco Rubio had assured Warner that the Justice Department\u2019s Office of Legal Counsel opinion would be provided.<\/p>\n \u201cShutting Democrats out of a briefing on U.S. military strikes and withholding the legal justification for those strikes from half the Senate is indefensible and dangerous. Decisions about the use of American military force are not campaign strategy sessions, and they are not the private property of one political party,\u201d Warner said in a statement<\/a>. \u201cThis partisan stunt is a slap in the face to Congress\u2019 war powers responsibilities and to the men and women who serve this country. It also sets a reckless and deeply troubling precedent. The administration must immediately provide to Democrats the same briefing and the OLC opinion justifying these strikes, as Secretary Rubio personally promised me that he would in a face-to-face meeting on Capitol Hill just last week.\u201d<\/p>\n Two government officials told The Intercept that a select group of lawmakers were able to see the OLC opinion and list of DTOs in a restricted setting on Thursday, following Warner\u2019s press conference. Warner\u2019s office did not return a request for comment about whether he was one of those lawmakers.<\/p>\n
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