WASHINGTON — The senior military lawyer for the combatant command overseeing lethal strikes on alleged drug-smuggling boats near Venezuela disagreed with the Trump administration’s position that the operations are lawful — and his views were sidelined, according to six sources with knowledge of the legal advice.
The lawyer, who serves as the senior judge advocate general, or JAG in military parlance, at U.S. Southern Command in Miami, raised his legal concerns in August before the strikes began in September, according to two senior U.S. officials, two senior congressional aides and two former senior U.S. officials.
His opinion was ultimately overruled by more senior government officials, including officials at the Justice Department’s Office of Legal Counsel, the six sources said. Other JAGs and military lawyers at various levels of seniority weighed in on the boat strikes, as well. It’s unclear what each of their opinions were, but some of the military lawyers, including civilians and those in uniform, also expressed concerns to senior officials in their commands and at the Defense Department about the legality of the strikes, the two senior congressional aides and one of the senior former U.S. officials said.
The JAG at Southern Command specifically expressed concern that strikes against people on boats in the Caribbean Sea and the eastern Pacific Ocean, whom administration officials call “narco-terrorists,” could amount to extrajudicial killings, the six sources said, and therefore legally expose service members involved in the operations.
The opinion of the top lawyer for the command overseeing a military operation is typically critical to whether or not the operation moves forward. While higher officials can overrule such lawyers, it is rare for operations to move forward without incorporating their advice.
Chief Pentagon spokesman Sean Parnell said in a statement: “The War Department categorically denies that any Pentagon lawyers, including SOUTHCOM lawyers, with knowledge of these operations have raised concerns to any attorneys in the chain of command regarding the legality of the strikes conducted thus far because they are aware we are on firm legal ground. Our current operations in the Caribbean are lawful under both U.S. and international law, with all actions in complete compliance with the law of armed conflict.”
A spokesperson for Southern Command referred questions to the Defense Department, which the Trump administration calls the War Department. A spokesperson for the White House did not respond to a request for comment.
The JAG is Marine Col. Paul Meagher, according to three people familiar with the matter. Attempts to reach Meagher for comment were unsuccessful.
The strikes on alleged drug boats have drawn support from Republicans, as well as criticism from members of both parties, NBC News has reported.
The opinion of the Southern Command JAG, which has not been previously reported, adds a new dimension to concerns that lawmakers, retired military officers and legal experts have raised about the administration’s legal justification for striking alleged drug boats.
Those concerns have centered on questions about whether the strikes violate international and U.S. law.
Since Sept. 2, it says, the administration has killed 82 people in 21 strikes on small vessels it says were transporting drugs bound for the United States.
Administration officials have not put forward any specific evidence backing up their claims.
The administration has told members of Congress that President Donald Trump determined the United States is in “armed conflict” with drug cartel members, NBC News has reported. The administration designated some drug cartels in Latin America as foreign terrorist organizations this year.
Trump has argued that drugs from the region pose a significant threat to American citizens. He has linked the boats to fentanyl to argue that the military strikes have saved tens of thousands of American lives, although fentanyl is typically smuggled into the United States by land across the Mexican border. Cocaine, which is most often moved via sea, is considered far less lethal than fentanyl.
JAGs’ opinions on possible military operations are usually shared with higher authorities, including the Defense Department’s general counsel, Justice Department officials and ultimately the White House, according to current and former U.S. officials familiar with the process.
JAGs typically play an integral role in defining the legal parameters of any military operation, and often their collective advice would be the primary guiding principle as political leaders decide whether to take such action, according to the current and former U.S. officials familiar with the process.
In the Trump administration’s campaign against alleged drug boats, politically appointed lawyers at senior levels have often defined the legalities of the operations with minimal lower-level legal input, according to the two senior congressional aides and one of the former senior U.S. officials.
There have been other signs of disagreement within the administration over the strikes. The head of Southern Command, Adm. Alvin Holsey, plans to step down after less than a year in a job that typically lasts about three years.
Holsey announced in October that he will depart next month.
In addition to concerns about the legality of the strikes, Democrats and Republicans on Capitol Hill have complained that the administration has not provided them enough information about the legal rationale or the intelligence used to target the vessels and people the administration purports are bringing drugs into the United States.
“There is no world where this is legal,” said a current JAG, who spoke on the condition of anonymity because they are not authorized to speak publicly.
Congress has not declared war or authorized the use of military force against the drug traffickers, and U.S. law allows the president to take military action without lawmakers’ approval only if there is a national emergency due to an attack on the country or American forces.
Dan Maurer, an associate professor of law at Ohio Northern University and a former Army JAG, argued that the drug cartels’ narcotics smuggling and other actions are crimes but do not qualify as an armed attack on the United States as defined by U.S. and international law.
“These drug cartels may be violent, they may be aggressive, they may be transnational,” Maurer said in an interview. “They may be doing terrible things within their own countries; they may be importing terrible things into our country that have bad consequences. But all of those are crimes, and none of which meets the traditional meanings of an attack or invasion.”
Maurer and other former military lawyers and experts believe the Trump administration’s legal rationale for the strikes is so tenuous it could put commanders and troops in legal peril after Trump leaves office in 2029.
Trump administration officials have defended the legality of the strikes and argued that they have shared ample information about them with members of Congress.
The legal debate about the strikes is likely to intensify if Trump decides to hit targets inside Venezuela, as he has threatened to do. The current legal rationale for strikes on vessels does not apply to any strikes on land, a senior administration official told lawmakers in a closed-door briefing last week, according to two additional congressional aides.
Some of the military’s strikes on boats have killed people who critics of the operations say may be noncombatants or even immigrants who are hitching rides on the vessels and have nothing to do with the drug trade. Two survivors of a strike were captured and repatriated to Colombia and Ecuador rather than taken into U.S. custody, a decision that one of the congressional aides said raises questions about whether there is sufficient evidence to prosecute them for a crime.
The internal differences over the legality of the boat strikes echo a similar debate more than 20 years ago. During President George W. Bush’s administration, senior military lawyers for the Army, the Air Force and the Marines raised objections over proposed “enhanced” interrogation techniques in 2003 and later testified to Congress about their concerns. They warned that U.S. courts could find those techniques amounted to torture and were illegal.
John Yoo, the controversial legal architect of Bush’s “war on terror” after the Sept. 11, 2001, attacks, now argues the Trump administration’s boat strikes risk crossing the line between “crime fighting and war.”
“Americans have died in car wrecks at an annual rate of about 40,000 in recent years; the nation does not wage war on auto companies,” he wrote recently in an op-ed in The Washington Post. “American law instead relies upon the criminal justice or civil tort systems to respond to broad, persistent social harms.”