Is the Trump administration backpedaling from its claim that Maduro directs TdA even as Trump orders military attacks on cartel vessels?
Last night, we posted my piece about President Trump’s formal notification to Congress that the United States has engaged in armed hostilities, without congressional authorization, against drug cartels. This follows lethal attacks carried out by the large contingent of armed forces that the president has deployed in the Caribbean, near the coast of Venezuela. Between September 2 and 19, our forces destroyed three boats, killing a combined 17 people. The president alleges that the boats were in the process of importing illegal narcotics to the United States. (Last night’s column has links to prior posts regarding the three attacks.)
I want to amplify two points. In this post, I’ll address the first: the oddity of the administration’s claim that the relevant cartels are nonstate actors in light of the president’s prior insistence that they are arms of Nicolás Maduro’s Venezuelan regime. In a subsequent post, I’ll deal with the president’s flawed equation of narcotics trafficking with terrorist activity, and of terrorism designations with authorizations to use military force.
As I observed last night, the administration’s reluctance to name the cartels in its notice to Congress is intriguing. It’s especially noteworthy coming after the president’s sketchy public description of the third boat attack on September 19; unlike his social media posts after the first two attacks (on September 2 and 15), Trump did not claim that the third vessel originated in Venezuela.
Consequently, here’s the concern: Having neither sought approval from Congress to use force, nor even felt obliged (until now, after some congressional stirring) to explain the administration’s theory of executive authority, the president’s claim of unilateral power is already expanding. A month ago, he seemed to be asserting the need to respond to some Venezuela-specific provocation; now, he asserts sweeping authority to use lethal force against any boat he suspects of transporting illegal narcotics (heretofore seen as a crime, not an act of war).
It is also notable that the administration’s notice to Congress, by reportedly labeling the cartels as “nonstate actors,” is inconsistent with the president’s Alien Enemy Act (AEA) proclamation against the Tren de Aragua (TdA) international criminal gang; the AEA described TdA as a Venezuela cartel that is directed by the regime of that country’s dictator, Nicolás Maduro. The notice to Congress also appears to be inconsistent with the administration’s prior terrorism designations pertaining to TdA and to the Cartel de los Soles (Cartel of the Suns), which is said to be Maduro’s own cartel and to count several top regime officials as members.
To be sure, the United States does not formally recognize Maduro as Venezuela’s legitimate president after he stole last year’s election. Yet the Trump administration has treated Maduro as that country’s de facto leader in, negotiating, for example, (a) prisoner releases, (b) the repatriation to Venezuela of alleged TdA members the administration had deported to El Salvador, and (c) Maduro’s agreement to accept U.S. deportation flights conveying Venezuelan aliens.
Furthermore, the AEA proclamation expressly states that Venezuela is run by “the Nicolás Maduro regime” and asserts that “TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus.”
To my knowledge, the administration has not taken the position that Maduro himself is a nonstate actor; to do so would be absurd since Maduro runs the regime that runs the country. Our government recognizes a number of governments run by despots who retain power by conducting sham elections, or by rejecting the very premise that a regime’s legitimacy hinges on popular elections. Hence, if Maduro is not a nonstate actor, how could cartels the president has alleged are anchored to Maduro’s regime be nonstate actors?
According to the president’s AEA proclamation, TdA is actively conducting an invasion of and predatory incursion in the United States “both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” The AEA proclamation elaborates that “TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela”; and that TdA’s engagement in what the president describes as “mass illegal migration to the United States” is “supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.”
Moreover, after U.S. forces attacked the first boat on September 2, the president posted the following on Truth Social:
Earlier this morning, on my Orders, U.S. Military Forces conducted a kinetic strike against positively identified Tren de Aragua Narcoterrorists in the SOUTHCOM area of responsibility. TDA is a designated Foreign Terrorist Organization, operating under the control of Nicolás Maduro[.]
After the second attack, Trump’s September 15 post did not mention TdA or Cartel de los Soles. He did, however, claim that the strike was “against positively identified, extraordinarily violent drug trafficking cartels and narcoterrorists,” and that “these confirmed narcoterrorists from Venezuela were in International Waters transporting illegal narcotics (A DEADLY WEAPON POISONING AMERICANS) headed to the U.S.”
I suppose it’s possible that the administration is retreating from its claims that the Venezuelan regime directs the cartels, given (a) the president’s salient omission of any reference to Venezuela in connection with the September 19 attack on the third boat, and (b) the reported assertion in this week’s notice to Congress that the cartels allegedly operating the targeted boats are nonstate actors engaged in a noninternational armed conflict (i.e., one that does not pit two sovereign nations against each other).
Nevertheless, note that the administration is still defending the AEA proclamation in court. (In early September, the administration lost before a divided three-judge panel of the Fifth Circuit, but the Circuit – at the Trump Justice Department’s request – has just agreed to rehear the case en banc.) In the forefront of the litigation is the president’s emphasis on Maduro’s connection to TdA, and thus to what Trump claims is TdA’s invasion of and predatory incursion in the United States, as the administration’s rationale for detaining and deporting alleged TdA members under the AEA.
And there’s more. Less than three months ago, in naming the Cartel de los Soles as a Specially Designated Global Terrorist, the Trump Treasury Department concluded:
Cartel de los Soles is a Venezuela-based criminal group headed by Nicolas Maduro Moros and other high-ranking Venezuelan individuals in the Maduro regime that provides material support to foreign terrorist organizations threatening the peace and security of the United States, namely Tren de Aragua and the Sinaloa Cartel.
The last assertion, that TdA is a foreign terrorist organization, is a reaffirmation of the Trump State Department’s February 20 “fact sheet.” Read in conjunction with the just-quoted excerpt from the Trump Treasury Department’s terrorist designation of the Cartel de los Soles, the administration has tightly linked both cartels, and their alleged terrorism, to the Maduro regime.
Despite TdA’s brutality (a characteristic it shares with many criminal gangs), I’ve maintained that it is fictitious to posit, as the president’s March 15 AEA proclamation does, that TdA has “invaded” the United States, much less seized territory here (a predatory incursion), within the meaning of the AEA statute (Section 21 of Title 50, U.S. Code). The AEA is addressed to actual warfare, not gang crime.
Plus, for months it has been publicly reported that the consensus of U.S. intelligence agencies is that Maduro does not direct TdA’s activities, particularly in the United States. The FBI is open to the possibility that lower level Venezuelan officials facilitate some TdA activities (potentially including migration to the United States); but even if this suggestion of some coordination is correct, it would not amount to a finding that Maduro operationally directs TdA.
To summarize, even as the administration appears to backpedal from prior claims that the cartels are integrated in the Maduro regime, the president is asserting unilateral constitutional authority to direct military attacks on alleged cartel vessels. The reasons for skepticism about the administration’s handle on the relationship between the Venezuelan regime and the cartels have long been apparent. With our armed forces now engaged in armed conflict, Congress needs to demand cogent answers about the nature of the threat.