The president is upping the ante.
I published a piece earlier this weekend on President Trump’s undeclared war in the Caribbean, wondering aloud where Congress is: Venezuela has not attacked our country militarily, but the president claims unilateral authority to employ lethal force — deeming boats he says are ferrying drugs to the United States as if they were warships firing missiles at the United States. In addition, I note that the Constitution vests the power to declare war in Congress, not the president, and that the executive branch (starting with the first Trump administration) has heretofore regarded drug importations from Venezuela (including those said to be directed by the country’s dictator, Nicolás Maduro) as felonies under Congress’s narcotics laws, not acts of war warranting a military response.
On Friday evening, we got more — though still sketchy — information about the third lethal strike on a vessel in the Caribbean Sea. In my earlier piece, I recounted the president’s revelation earlier this week that there had been a third attack (aside from the two reported since September 2, which were said to have killed a total of 14 people). Because the information Trump dribbled out at the prior press availability was elliptical and the information he announced on social media last night is incomplete, I cannot say with confidence that the third attack divulged earlier is the same third attack now being reported.
The information is, in any event, alarming.
The president says that in the third attack, three more people aboard a speedboat (depicted in a video) were killed. Yet, he does not tie these three unidentified people to any particular country — he simply brands them “narco-terrorists.” We are left to assume that he must be talking about more Venezuelans since (a) groups led by Maduro, some members of Maduro’s Cartel del los Soles (Cartel of the Suns) drug enterprise, some members of the Trend de Aragua (TdA ) gang, and other Venezuelans are under indictments for narco-terrorism conspiracy charges; (b) in February 2025, the Trump State Department designated TdA as a foreign terrorist organization; and (c) just two months ago, the Trump Treasury Department designated Maduro as a specially designated global terrorist.
Yet, it is only surmise that the new attack involved Venezuelans. I could be wrong about that. The administration’s rhetoric against Maduro’s regime and TdA has been strident, so the fact that Trump didn’t mention them in connection with the third strike seems significant — as if, even though it was already legally dubious to attack Venezuelan vessels without congressional authorization, the president is upping the ante by claiming the power to strike any ship, operated by anyone, that he suspects of carrying fentanyl, cocaine, or other illegal drugs (and further suspects the destination is the U.S.).
The only justification Trump offered for the newly disclosed attack is as follows: “Intelligence confirmed the vessel was trafficking illicit narcotics and was transiting along a known narcotrafficking passage en route to poison Americans.” Again, even if this is true, Congress has not authorized military force for such a contingency; it has enacted narcotics laws that provide authority for interdiction and civilian court prosecution. (Of course, American agents are authorized to use lethal force in interdicting and apprehending drug couriers, just as they are authorized to do so in arresting other suspects, if it is in reasonable response to forcible resistance. But we are not talking about a civilian arrest scenario here.)
On Friday, the New York Times reported that there is enough Capitol Hill nervousness about the apparent lawlessness of the ongoing military campaign that some Trump allies, led by Representative Cory Mills (R., Fla.), are circulating draft legislation that would endow Trump with authority to use military force. As described, the proposal is sweeping: lethal attacks permitted against any international drug enterprises that the president deems to be “terrorists” — authority that would not be limited to alleged terrorists in any particular country, and that would target without limitation any nation the president unilaterally concludes has abetted or harbored these alleged terrorists.
The model for this proposal appears to be the authorization for the use of military force enacted in the wake of the 9/11 terrorist attacks — a very different situation. That is, it would not identify the enemy with specificity and has no geographical limitations. (It is apparently limited temporally to five years — evidently to shield Trump from claims that he is getting us into one of those “forever wars” he often decries.) As we’ll see, not only is the situation here markedly different from 9/11; the proposal would empower Trump to unilaterally decide who is a terrorist even though his current conclusions on that matter depart from federal law.
Let’s assume for argument’s sake the accuracy of the Times report (which was based on a number of anonymous sources). And let’s leave aside for now that such a proposal would have no prospect of passage in the closely divided Congress. (We’d have heard about it if there had been any appetite in the Republican-controlled Congress for the administration’s combat operations in the Caribbean — or, for that matter, for defending the president’s earlier outlandish claim that TdA, under Maduro’s direction, had conducted an invasion of or predatory incursion in the United States.)
The leaps of law and logic being taken by the administration and its supporters are breathtaking.
Start with the proposition that the drug trafficking networks of Venezuela are accurately described as “terrorists” who are attacking the United States.
Maduro and his regime, including its suspected gang confederates, were not designated as foreign terrorists when the Trump Justice Department indicted them for narco-terrorism conspiracy in 2020. As noted above, there was no designation until the last few months, in the current Trump administration.
Instead, the 2020 Trump DOJ’s implication of Venezuelans in narco-terrorism hinged on the regime’s confederation with the FARC (Fuerzas Armadas Revolucionarias de Colombia — i.e., the Revolutionary Armed Forces of Colombia). The FARC, of course, is the Communist insurgency that for decades waged war against the Colombian government. It was the FARC that the United States had designated as a foreign terrorist organization (FTO), in 1997. The FARC, not Maduro’s drug trafficking actions standing alone, was the terrorism connection.
But things are much different now. In 2016, two decades after it was designated an FTO, the FARC entered into a peace agreement with the Colombian government. The next year, FARC leaders formed a political party. For branding purposes, the new party maintained the FARC acronym, but that now stood for Fuerza Alternativa Revolucionaria del Común (Alternative Revolutionary Force for the Common People). In 2021, the State Department revoked the FARC’s FTO designation. So, as things stood when Trump returned to office in January, Maduro was still under indictment, but neither his regime nor the FARC was regarded as an FTO by the U.S. government.
To be sure, there are dissident FARC offshoots, known as FARC-EP (the FARC refers to the former acronym, and the “EP” add-on means People’s Army (Ejército del Pueblo)), and the Biden State Department designated them as FTOs at the same time it rescinded the designation of the original FARC. Still, regardless of what may be Maduro’s relationship with the FARC-EP, the Justice Department’s 2020 indictment of Maduro referred to his historic relationship with the original FARC — and again, under federal law, the FARC is no longer an FTO.
Obviously, Maduro and his subordinates have never been apprehended or tried by American authorities, so the allegations in the indictments have never been proved. But they appear to be strongly supported, so let’s assume for present purposes that they are true. Even so, to prove narco-terrorism charges, the Justice Department must prove that narcotics trafficking proceeds were contributing to terrorist activities.
While it was mainly a Colombian insurgency, the FARC terrorist organization conducted many forcible operations against Americans (kidnappings of defense contractors and bombings of oil production infrastructure). In 2006, moreover, the Bush-43 Justice Department indicted dozens of FARC leaders on drug trafficking charges. At the time, the Justice Department alleged:
The defendants also allegedly ordered FARC members to kidnap and murder U.S. citizens to discourage the U.S. government from disrupting the FARC’s cocaine-trafficking activities. According to the indictment, the charged FARC leaders authorized their members to shoot down U.S. fumigation planes, and plotted to retaliate against U.S. law enforcement officers who were conducting the investigation into the FARC’s narcotics activities.
Horrific. Nevertheless, it is notable that Congress never authorized the use of military force against the FARC. It did provide significant aide to the Colombian government’s fight against the FARC, but even when the FARC kidnapped Americans in 2003, the United States did not respond militarily.
Furthermore, the violence and drug trafficking that led to the 2006 indictments occurred while Hugo Chavez ruled Venezuela and collaborated with the FARC. Maduro was a key member of Chavez’s so-called Bolivarian regime, but he did not take over until Chavez’s death in 2012. While the regime’s partnership with the FARC endured for a few years after that, the FARC was severely weakened. That is why it agreed to the 2016 peace accord.
Meantime, in the years prior to the Justice Department’s 2020 indictment of Maduro, his regime detained American citizens on bogus charges (to use as bargaining chips) and harassed American diplomats (leading to the 2019 suspension of U.S. embassy operations in Caracas, which continues to this day). Yet, the response of the first Trump administration was to file international narcotics trafficking charges to be tried in court. Trump never asked Congress to authorize military operations, nor did Congress undertake to do so on its own.
In the interim, although Maduro’s regime is execrable and illegitimate, it has not conducted terrorism against the United States.
President Trump appears to be claiming that shipping illegal narcotics to the U.S. is the legal equivalent of terrorist attacks. But our law says otherwise, defining terrorism as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents” (see Section 2656f(d)(2) of Title 22, U.S. Code).
As for Congress’s drug laws, narco-terrorism is drug trafficking that contributes to ongoing terrorism (see Section 960a of Title 21, U.S. Code). Contrary to the president’s apparent view, drug trafficking itself is not terrorism; it is a different offense, punishable as felony importation and distribution of illegal narcotics. Drug trafficking is a heinous crime, carrying potential sentences of up to life imprisonment, or even the death penalty, depending on the amount of drugs and the violence attendant to the trafficking; but it’s still not terrorism.
Federal law empowers the State Department to designate an entity as an FTO only if the entity is engaged in terrorism (as defined above, under Section 2656(d)(2)), or terrorist activity — which, despite the breadth of forcible attacks covered in the statutory definition, does not include drug trafficking. (See Section 1182(a)(3)(B)(iii).) In designating Maduro and TdA as terrorist organizations on the theory that drug shipments are the equivalent of forcible attacks, the Trump administration is contravening statutory law.
To be clear, Congress could define terrorism in a way that would include massive drug importations by a hostile regime. But it hasn’t, and the president has no such legislative authority.
And that’s not the half of it. Let’s assume that Trump is right that a large-scale drug shipment directed by a foreign regime is the legal equivalent of a terrorist attack. An organization’s engagement in terrorism is not by itself sufficient to empower a president to unilaterally order a military attack. Obviously, there is an exception if there is a true threat of a terrorist attack against the United States; in such instances, the president has the constitutional authority to repel the attack by whatever force is necessary, with no prerequisite of congressional authorization. But in the absence of such a threat, the president needs congressional authorization. And a shipment of illegal drugs is a crime, not a threat of terrorism justifying an unauthorized use of lethal force.
Moreover, even if an organization were properly designated as an FTO because it was actually engaged in forcible attacks against the United States (i.e., terrorist activity), the terrorist designation would not be an authorization to use military force. Rather, the designation would empower the executive branch to seize assets, shut down fundraising, and prosecute those who provide material support to the FTO.
To employ lethal force, the president needs a specific congressional authorization.
As I point out in the prior piece, al-Qaeda was designated as an FTO in 1999, but there was no authorization of military force until after the 9/11 attacks two years later. To be clear, I assume that President Clinton’s ineffectual 1998 missile strikes against suspected al-Qaeda safe havens in Afghanistan and Sudan were constitutionally permissible because they were in response to the jihadists’ 1998 bombings of our embassies in East Africa, which signaled — in conjunction with al-Qaeda’s declaration of war — that more attacks were coming (as, it turned out, they were). But if Clinton had decided to, say, invade Afghanistan in early 2000, he’d have needed congressional authorization or evidence of an imminent planned attack; the existing FTO designation did not authorize military force.
To summarize, then, the president has three times in the past three weeks ordered the use of lethal military force, and so far reportedly killed 17 people. These attacks are based on the theory that Venezuelans he has designated as terrorists are attacking the United States with shipments of illegal drugs. But (a) the terrorist designation appears to be based on drug trafficking, which is not terrorist activity under U.S. law; (b) even if drug trafficking qualified as terrorism, an executive branch designation of an entity as an FTO does not authorize the use of military force; (c) absent a true threat to the United States that requires an emergency military response, the president needs authorization from Congress to employ lethal military force; (d) Congress has made drug importation a crime for court prosecution, not the occasion for military force; (e) the first Trump administration indicted Maduro and other Venezuelans for drug importations but did not seek an authorization of military force; (f) the president has not established — he has merely asserted — that the ships he has bombed were Venezuelan vessels operated by entities he has designated (however dubiously) as FTOs operating under Maduro’s direction; and (g) with respect to the most recent strike, the president has not even claimed the vessel allegedly ferrying illegal narcotics was from Venezuela — i.e., he appears to be claiming a power to use lethal force whenever he suspects a boat on the high seas is carrying drugs, which he further suspects are destined for the United States.
To the extent Trump allies in Congress are working up a legislative proposal modeled on 9/11, this situation is not remotely close to 9/11 — immediately after which Congress authorized the use of force against a properly designated FTO that had repeatedly carried out mass murder attacks against Americans and American facilities in the 1990s, and had just killed nearly 3,000 Americans in our homeland (more than the number of Americans killed in the Pearl Harbor attack that drew our country into World War II).
So I’ll end by asking what I asked in the earlier piece: Where is Congress?