Trump has “determined” the U.S. is at war with drug cartels

The main point: In a confidential notice to Congress last week, the administration said that President Trump has decided that the U.S. is engaged in a formal “armed conflict” with the drug cartels he labeled as terrorist organizations and that suspected smugglers for the groups are “unlawful combatants.”

The bigger picture: The notice adds new detail to the administration’s legal rationale for the three U.S. military strikes on boats in the Caribbean Sea last month. Trump’s move to formally deem his campaign against cartels as an active armed conflict means he is cementing his claim to extraordinary wartime powers.

• Countering drug trafficking is typically a law enforcement task, not a military effort.

The details: Legal experts are skeptical of the rationale the administration argues makes the strikes legal, for several reasons…

1. Not an armed conflict: The notice portrays the U.S. military’s attacks to be part of a sustained, active conflict rather than isolated acts of claimed self-defense. It says Trump has “determined” that cartels are “nonstate armed groups” whose actions “constitute an armed attack against the United States.” It conflates the trafficking of an illicit consumer product and associated crime with an armed attack. Legal experts say cartels were not engaged in “hostilities” — the standard for when there is an armed conflict — against the U.S. because selling a dangerous product is different from an armed attack. According to international law, in an armed conflict, a country can lawfully kill enemy fighters even when they pose no threat, detain them indefinitely without trials, and prosecute them in military courts. But it is illegal for the military to target civilians who are not directly participating in hostilities, even suspected criminals.
2. Not approved by Congress: Congress has not authorized the use of any type of military force against cartels.
3. Unclear target and standards: The notice did not specifically name any of the cartels with which Trump claims the U.S. is engaged in an armed conflict. It did not specify standards the administration is using to determine whether particular suspects have sufficient links to cartels for the military to kill them.
4. Not addressing the fentanyl problem: The focus of the attacks has been boats from Venezuela, even though the surge of overdose deaths has been driven by fentanyl coming from Mexico, not South America.

Read more: Trump ‘Determined’ the U.S. Is Now in a War With Drug Cartels, Congress Is Told