It appears to be a shocking war crime. According to a recent report, United States Defense Secretary Pete Hegseth gave orders to “kill everyone” as the military carried out strikes on alleged drug-running boats alleged in the Caribbean Sea. And, it appears that these orders were followed, as a second strike killed survivors of the first known strike. Lawmakers have rightfully reacted with alarm and condemnation. No matter how you look at it, it is critically important not to lose sight of a central truth: Norms built on a bipartisan basis in the post-9/11 era helped this happen.
Upon returning to the Oval Office earlier this year, US President Donald Trump administration made targeting transnational cartels a day-one priority of his second term. In a series of executive orders he signed the day of his inauguration, he denounced cartels’ alleged role in facilitating unauthorized immigration and trafficking drugs into the United States as “insurgency and asymmetric warfare,” a “campaign of violence and terror,” and an “invasion” placing the US under “attack.”
His administration has turned this rhetoric into policy by designating cartels as “terrorists” and launching military strikes against speedboats in international waters the administration claims contain “narco-terrorist” members of designated cartels, without providing evidence. Thus far, such strikes have killed more than 80 people.
The administration’s purported legal authority for this military force has been sparse. What we do know is that the administration has told Congress, and appears to have documented in a secret memo, that it believes the US is engaged in an actual “armed conflict” with the cartels, using the international law term “non-international armed conflict.”
Hegseth himself has said, “These cartels are the Al Qaeda of the Western Hemisphere,” threatening that “they will be hunted, and killed, just like Al Qaeda.” Translation: These killings aren’t murder; they’re just a normal part of war.
Clearly, the Trump administration is claiming war authorities where none exist, as anyone can see that there is no actual state of war. Under international law, a president cannot merely declare an “armed conflict.” Rather, the term is meant to be a factual description of what is happening on the ground when organized parties fight one another at a certain level of intensity. Only in those circumstances do the relatively permissive laws of war actually apply.
The US, however, is no stranger to inappropriately relying on a war paradigm. After the Sept. 11 attacks, it was a policy choice and not an inevitability to launch an actual war in response to a devastating attack that resembled a crime more than a military attack. The idea of the “War on Terror” may have satisfied the vengeful bloodlust many Americans felt after the attack. In practice, though, it was something new, different, and controversial. Conducting an actual war against diffuse networks of nonstate actors was a project determined to fail, which has become all too clear more than two decades later. At the conclusion of the decades-long war on Afghanistan, the Biden administration continued to take the position that some nebulous “armed conflict” still existed.
Of course, once the United States actually invaded Afghanistan and Iraq, this created an actual state of armed conflict on the ground. Conservative estimates indicate the resulting “forever wars” directly killed just shy of a million people directly and indirectly killed more than four million people. These invasions and occupations also displaced tens of millions more.
Still, even within the context of conventional warfare, the US government bent the rules.
Still, even within the context of conventional warfare, the US government bent the rules. The Obama administration created a drone “playbook” that twisted the law to claim some of the more expansive targeting rules of the laws of war outside the actual warzones, including in remote areas of Pakistan, Yemen, and Somalia. As part of the drones program, the US government continued to creatively interpret concepts like “battlefields” and “combatants” beyond recognition. These strikes targeted individuals the administration placed on its kill list based on secret criteria, resulting in the assassination of scores of civilians.
Even “successful” strikes that hit their intended targets were often dubiously justified, as those killed were often not individually proven to be involved in violence against the United States and instead simply fit a profile for so-called “signature strikes” that targeted “three guys doing jumping jacks” or “military-aged males.” Follow-up “double-tap” strikes killed people who sought to rescue those targeted in the original strikes. A strike even targeted and killed an American citizen, and a subsequent strike killed his teenage son, who was also a US citizen. By way of explanation, the Obama administration suggested the child should have had a “more responsible” father.
These rather appalling practices have been strengthened by Congress’s failure to place meaningful checks on the executive branch’s targeted killing power and the courts’ refusal to question presidential decisions around “national security.” Even the family of the American citizens targeted by drone strikes had their cases thrown out of court when they tried to challenge the killings, with the judge declaring, “In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role.”
From the practice of torture to warrantless surveillance to drone strikes, those victimized by the War on Terror have been stonewalled in the courts by US administrations asserting “state secrets” to block them, and courts deferring to the executive.
There are echoes of this legacy in the Trump administration’s blatant illegalities. We see it in the claims of war authority outside warzones, the use of military force where law enforcement tactics are more appropriate, the targeting of people because their actions suggest illegality rather than in reliance on publicly-available evidence of their individualized wrongdoing, and in the brutality of follow-up strikes to kill people who survived the first.
To be sure, what the Trump administration is doing is a new level of criminality beyond what we’ve seen in the past, based on outright lies and without any real effort to justify themselves on the facts or with the law. But the Trump administration’s vile actions are less of an aberration and more of a continuation and intensification of the War on Terror. Although its claims of warfare and “terrorists” and double-tap strikes are more brazen and preposterous than those of its predecessors, they are built on the same foundation. Perhaps this will be the wake-up call that policymakers need to put real checks on executive killing power, and to finally dismantle the remnants of the War on Terror once and for all.