I believe we are in some uncharted waters as far as our government’s use of force is concerned. The President’s use of military force against alleged drug trafficking boats is going to break new ground and test the Constitution and international law. The idea of testing the President’s authority in this area is not new; it goes back to the first (1801-1805) and second (1815) Barbary Wars. This led to a clear understanding of war powers and the creation of the U.S. Navy. Today, we have an administration using the military to inflict deadly force on suspected drug-running boats coming out of Venezuela.
Historically, the U.S. has operated within the Western paradigm of the Peace of Westphalia (1648). This peace helped to establish the Western understanding of the rights and responsibilities of nation-states. It laid much of the groundwork for existing International Law. This is not the first time our existing constitutional construct has been challenged.
9-11 showed a glaring “hole in our swing” regarding our understanding of legal armed conflict. As shocked and offended by 9-11 as we were, we should not have been. Al Qaeda, a non-nation-state actor, had conducted a series of actions and issued formal declarations of war that led to the 9-11 attack. Beginning with the first attack on the World Trade Center in 1993, followed by the Khobar Towers attack in Saudi Arabia in 1996, the twin embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania in 1998 and the attack on the USS Cole in 2000, Al Qaeda clearly displayed their intent and capability to wage war on the U.S. Al Qaeda issued Fatwas in 1996 and 1998 declaring war on the United States. Despite the series of written declarations and physical attacks, we could not understand what was happening. Our “Westphalian” mindset could not perceive of a non-nation-state actor declaring and waging war.
This is clearly manifested in our responses, both in word and deed. We treated the 9-11 attacks as criminal activities rather than military attacks, yet, using traditional Western understanding, Al Qaeda followed a Clausewitzian model by attacking our strategic centers of gravity: Economic (World Trade Center), Military (Pentagon), Political (attempt at Capitol/White House). In hindsight, these attacks were neither a surprise nor criminal; they were well telegraphed and consistent with the laws of war, with one exception: they were not from a nation-state. In many ways, we viewed Al Qaeda as a “football bat”; we simply could not get our heads around who they were and what they were doing. This is most clearly shown in our treatment of persons detained during this period. Were they captured combatants or criminals? We were not completely clear and, as a result, did a poor job of dealing with the detainees. A simple declaration that they were considered enemy combatants and would be detained for the duration of the Global War on Terrorism, and would be tried as war criminals if suspected of violations of the law of land warfare would have made life easier for everyone.
So here we are, we don’t seem to have progressed in our thinking about warfare by non-nation-state actors, or have we? The CDC reported 110,037 drug overdose deaths in the U.S. in 2023; the 2024 figure is 80,391. Using CDC statistics, drug overdose is the 7th or 8th leading cause of death in the U.S., behind heart disease (my favorite), Cancer, Unintentional injury, Stroke, Chronic lower respiratory diseases, Alzheimer’s disease, and Diabetes.
Is this a war being waged on the U.S.? We lost almost 3000 people on 9-11 and considered it worth a near-total mobilization of U.S. military capability and the waging of wars in Iraq and Afghanistan for 20 years at an estimated cost of between $5.8 and $7 trillion and 7,054 military lives lost. We are losing 10 to 15 times that many people to drug overdoses every single year. The principal drug responsible for the deaths is Fentanyl. The primary sources are Mexico (end product) and China (precursors). Whereas cartels distribute drugs for profit, there is little question that China is using fentanyl as part of a long-term many-pronged strategy to undermine and defeat the United States.
Current understanding of international law and the U.S. Constitution is pretty clear that the use of the military for law enforcement, through deadly force, in international waters is not permitted. The designation of drug cartels as terrorist organizations was well conceived and should certainly provide stronger legal support for the current actions. This is so contentious, the current U.S. SOUTHCOM Cdr, Adm Alvin Holsey has announced his resignation over disagreements with this policy. I personally admire his principled position and action.
What is the right answer? I don’t know. I understand the limits that our Constitution and International law place on our use of force and generally agree with them. Both keep us from chaos and put restraints on the excessive use of power. However, much like 9-11, we are in new territory that may require new thinking. The Venezuelan government is in complete partnership with the drug cartels. Both U.S. intelligence and international analysts have concluded that the Maduro government is deeply complicit with the drug network known as the “Cartel of the Suns”. The Venezuelan Nobel Laureate Maria Corina Machado is applauding the Trump Administration’s actions against drug trafficking. I think of the Tom Clancy book and movie “Clear and Present Danger,” where we took clandestine, direct action against drug cartel leadership. Now we have a President who isn’t the slightest bit clandestine and is calling out both cartels and governments involved.
The legal challenges will be fascinating to watch. The line between organized crime and foreign military action is becoming blurred. We are seeing the stretching of Clausewitz’s axiom that “War is the continuation of politics by other means”. When international organized crime becomes a political/military instrument that threatens the physical security of the nation, does “war become an extension of law enforcement by other means”?
What I do know is that in the past 30 years, the United States has seen major attacks against our citizenry using asymmetric warfare by non-state actors. Our traditional legal and military responses have been ill-equipped to address these threats, leaving the results less than satisfactory. The current actions are certainly outside of our understanding of appropriate actions; however, before condemning our President and Secretary of War, it might be appropriate to appreciate that they are pursuing new and effective means to combat a growing threat to our nation. History usually rewards those who achieve good results and is more tolerant of the means employed. We need a national debate on this issue, and it needs to inform international law. Much like our misguided immigration policies of the past administration, our laws and policies are not intended to be a “suicide pact.” And must evolve to deal with the emerging threats.
COL (Ret) Mike Courts, West Point 1981, US Army War College 2003, former Army Aviator, battalion and brigade commander, CoS 1st ID, Bosnia-Herzegovina and Iraq veteran, former Mayor City of DuPont, WA. Author of “Letters from Baghdad Vol 1: Tea with Terrorists” and “Letters from Baghdad Vol 2: Herding Cats”. Resides in DuPont, WA and works as a full-time ski instructor every winter.
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