Even assuming he is correct that these are narco-terrorists, Trump has offered no justification under the Constitution and the laws of war.

E arlier this week, President Trump announced that U.S. armed forces have now employed lethal force against three seafaring vessels off the coast of Venezuela. Only two attacks had been public before his remarks.

The president maintains that all of the boats were in the act of transporting illegal drugs to the United States. The first strike a couple of weeks ago is said to have killed eleven people whom Trump alleges were Tren de Aragua (TdA) gang members. On Monday, the president used a Truth Social post to inform the public that, earlier in the day, “on my orders, U.S. military forces conducted a SECOND kinetic strike against positively identified, extraordinarily violent drug trafficking cartels and narcoterrorists.” He added, “The strike occurred while these confirmed narcoterrorists from Venezuela were in international waters transporting illegal narcotics . . . headed to the U.S.” He didn’t say who had done the positive identifying and confirming.

The next day, asked at a press availability about those two attacks, the president clarified, “We knocked off actually three boats, not two, but you saw two.” He provided no further details about the third incident.

After the first attack, I asked whether we were at war with Venezuela. Obviously, Congress has not declared war or authorized the use of military force. Indeed, with the exception of a few Democrats who instinctively opposed Trump’s every move, lawmakers haven’t come out from under their desks even to weigh in on the president’s deployment of significant military assets in the Caribbean, much less our forces’ execution of lethal attacks. We have nothing but the president’s say-so that the targets were narco-terrorists in the act of shipping drugs. Even assuming he is correct, Trump has offered no justification under the Constitution and the laws of war for his actions.

As regular readers know, I am no knee-jerk naysayer on the use of force against foreign threats to American national security. Even while I was still a Justice Department prosecutor doing terrorism cases, I complained — precisely because I had tried jihadists attached to foreign terrorist organizations — that it was provocatively weak for the world’s only superpower to rely on civilian criminal prosecution against wartime enemies. Not only did this embolden our enemies; the ensuing civilian trials mandated Justice Department compliance with due process discovery rules — i.e., we were providing valuable intelligence to an enemy that was actively seeking to mass-murder Americans through stealth attacks.

While the Justice Department should have a role in wartime, it should never be the point of the spear. That’s for the military and intelligence services. The DOJ, the Treasury Department, and other arms of domestic enforcement should concentrate on cutting off material support to the enemy. Under the laws of war, our armed forces are permitted to attack our enemies with lethal force, detain captives for the duration of hostilities, and try those captives by military commission for war crimes.

But to do that lawfully, we have to be at war.

The Constitution vests Congress, not the president, with the power to declare war. This is significant in that it is for Congress to determine that we are in an armed conflict and thus to fix the legal relations that flow from that fact — who the enemy is, against whom military force is authorized, what alien residents may be detained or deported, what enemy assets may be seized, and so on.

It is the law of the United States, and the Supreme Court has explicitly held since the Civil War (see the Prize Cases), that if our nation is under attack, the president need not wait for congressional authorization to use whatever force is necessary to repel the attack. The War Powers Resolution, enacted over Watergate-weakened President Nixon’s veto in November 1973, is constitutionally tenuous; but wherever one comes out on its controversial aspects, the legislation recognized that there are national security threats to which the president must be able to respond swiftly and decisively even if Congress has not been able to convene to authorize combat operations. (Congress has not declared war since World War II; it authorized force in, for example, Korea, Vietnam, Afghanistan, and Iraq (twice).)

Nevertheless, there has to be an actual threat to American national security for the president to justify using force without congressional authorization. We can argue about how “imminent” the threat has to be, but it must be real.

I am open to being convinced otherwise, but I don’t see the Maduro regime as a wartime threat to our national defense — or at least I didn’t until our government started attacking Venezuelan ships, which, it stands to reason, could prompt a lethal response (perhaps even in our homeland, given the president’s dubious claim that Maduro controls TdA forces that have invaded and captured territory here). I don’t dispute that the Maduro regime is illegitimate, repulsive, and anti-American. But there are several despotic, hostile regimes in the world — including the Chinese, Russian, and Iranian governments, whose armed forces have been known to get downright provocative in encounters with ours. We’re not conducting combat ops against them.

Trump appears to be taking the novel position that a boat operated by foreigners that is in the act of transporting illegal narcotics to the United States is the functional equivalent of a foreign seacraft that has fired, or is poised to fire, a missile at the United States (or that is, perhaps, carrying explosives to deploy against an American asset, à la al-Qaeda’s 2000 attack on the Cole). Now, there are many suppositions underlying that proposition that we should address, but let’s table them for a moment; let’s assume arguendo that operatives of the Maduro regime are in fact shipping narcotics to the United States. Congress has never made that a basis to conduct lethal missile attacks. To the contrary, Congress made the importation of illegal drugs into the United States a felony offense to be prosecuted in court (see Section 952 of the federal narcotics laws).

The severe criminal penalties prescribed in the drug statutes demonstrate that our government regards such international drug trafficking as a heinous crime. But not as an act of war. That is not to say Congress could not so regard it. There are many forcible acts and schemes (e.g., bombings, seditious conspiracy) that are codified and prosecutable as crimes but that could also, in the proper context, be deemed acts of war. Since the Constitution vests the power to declare war in Congress, the courts could not void a statutory authorization of military force based, at least in part, on importations of cocaine and fentanyl. But to this point, there has been no such authorization.

Now, about those suppositions mentioned above. Many have pointed out that the Trump administration has designated Tren de Aragua as a foreign terrorist organization and more recently stamped Maduro’s own personal enterprise, the Cartel de los Soles (Cartel of the Suns), as a specially designated global terrorist. That’s fine, but a terrorist designation by the executive branch — even pursuant to a statutory process enacted by Congress — is not an authorization for the use of military force.

Al-Qaeda was designated as a foreign terrorist organization in 1999, after its bombings of U.S. embassies in East Africa the previous year. That designation triggered the operation of laws enabling the seizure of assets, the shuttering of fundraising front organizations, and the prosecution of people who provided material support. It did not authorize the use of military force.

There was no such authorization until after the 9/11 attacks. The enactment of an authorization for use of military force meant that the American invasion of Afghanistan was an incontestably legitimate prosecution of war. Before that, however, our government had continued to prosecute al-Qaeda jihadists in court. That wasn’t the best way to go about it — Congress should have authorized military force (and President Clinton should have asked Congress to do so) years earlier. It is nevertheless worth mentioning here because the Trump Justice Department (in the president’s first administration) indicted Maduro, members of the Cartel de los Soles, and members of TdA (among other Venezuelans) on narco-terrorism and other drug importation charges. That is to say, the same activities in which Venezuelans are now engaging have, to this point, been regarded as grist for prosecution in civilian courts under Congress’s criminal laws.

It is also anything but clear that Maduro is directing TdA — and in saying that, I’m assuming Trump is correct that TdA has been operating the ships that he says are transporting drugs and against which our Navy has used lethal force, even though that hasn’t been established, either. There is a dispute among our intelligence agencies about the nature of the relationship between the regime and TdA — the FBI suggests that there is coordination between the gang and low-level regime officials (who may or may not be acting at Maduro’s direction); the broader community of U.S. spy agencies appears to believe the regime is not directing the gang (of course, they also said Iran wasn’t building nukes).

This point is a bone of contention in litigation over the deportations of Venezuelan aliens pursuant to Trump’s Alien Enemies Act proclamation (the administration lost the last round in the Fifth Circuit earlier this month). As earlier noted, the president contends that TdA has conducted (or is conducting) an invasion or predatory incursion of the United States and is doing so at Maduro’s direction. If that were really happening, I doubt Congress would need nudging to declare war or authorize military force against Caracas. In reality, however, TdA is a vicious criminal gang, like many other vicious criminal gangs that the Justice Department and state district attorneys across the country investigate and prosecute every day. The notion that we are under invasion or predatory incursion by a hostile foreign regime seems as far-fetched as the suggestion that ships ferrying drugs are indistinguishable from ships firing missiles.

The Biden Justice Department’s effort to prosecute Trump criminally led to months-long litigation over whether presidents have immunity from criminal prosecution for actions within the capacious scope of executive power. Notable in that litigation were oral arguments in which judges posed tough questions about whether presidents should be legally immune even if they plainly abuse power by ordering lethal attacks — e.g., against political rivals or countries with which the U.S. is at peace. I italicize “legally” because the Supreme Court’s ultimate answer was that our system’s checks on such abuses of power are not to be found in the legal system. Under our Constitution, the president is politically accountable, mainly to Congress, whose Article I arsenal is designed to rein in executive excesses and lawlessness.

The president is attacking Venezuelan vessels, in the absence of clear legal authorization, under the assurance that he has immunity from prosecution. To be an official act, a presidential act does not need to be virtuous or proper. Many abusive executive acts (e.g., patently unmerited pardons, the use of executive orders as bills of attainder) remain official acts shielded from lawsuits. Yet, they are not shielded from Congress.

With respect to Venezuela, President Trump has usurped Congress’s war power. He has unilaterally declared hostilities and has authorized lethal attacks. If the Republican-controlled Congress supports this war-making, it should authorize military force and explain why it is doing so. If it opposes the president’s use of lethal force against a country and its alleged operatives with which we are not at war, it should use its power to end the attacks and investigate the circumstances of the strikes that have already occurred.

But one way or another, Congress needs to act. In 2011, when President Obama unilaterally ordered the use of military force against the Libyan regime in the absence of any threat against the United States, most congressional Republicans erupted in protest, forced a vote against authorizing combat operations, pushed to cut off funding, and openly rebuked the president for running roughshod over the Constitution. Of course, there was only so much they could do then, with control of only one congressional chamber. Today, they control both. So where are they?