Having rebranded the Department of Defense as the Department of War, the president is going on offense with the US military.
Donald Trump has foisted National Guard troops on Washington, DC, and Los Angeles. Other cities are on edge, particularly after he posted an apparently artificially generated image of himself dressed up like Robert Duvall’s surfing cavalry commander in “Apocalypse Now,” a meme that seemed to suggest he was threatening war on the city of Chicago.
Trump later clarified that the US would not go to war on Chicago, but he’s clearly comfortable joking about it. And he’s of the opinion his authority over the military is absolute.
“Not that I don’t have the right to do anything I want to do. I’m the president of the United States,” he said at a Cabinet meeting in August, when he was asked about the prospect of Chicagoans engaging in nonviolent resistance against the US military.
He’s reorienting the US military to focus on drug traffickers as terrorists and told Congress to expect more military strikes after the US destroyed a boat in the Caribbean last week.
All of this projects the kind of strongman decisiveness Trump admires.
A lot of it might also be illegal.
A ‘violation of the Posse Comitatus Act’
US District Judge Charles Breyer ruled this month that Trump and Defense Secretary Pete Hegseth committed a “a serious violation of the Posse Comitatus Act” when they deployed federalized troops to Los Angeles over the objections of the state’s governor and mayor.
The Posse Comitatus Act was passed by Congress in 1878 as Southern states worked to oust federal troops and end Reconstruction. Questions over how and whether troops can be used to enforce laws goes back to the pre-Civil War period, when federal marshals sought help from citizens and militiamen in recovering fugitive slaves and putting down the protests of abolitionists, according to the Congressional Research Service.
It is not clear why Trump has not yet, as he has promised, called up the National Guard to patrol in Chicago, but he may be waiting for the Supreme Court, which has been extremely deferential to his claims of authority, to weigh in on a preliminary basis.
Trump has more authority to deploy the military inside Washington, DC, which the Constitution says Congress controls. But Congress has ceded some authority to locally elected officials in recent decades. DC’s Attorney General Brian Schwalb has sued the Trump administration over the deployment.
Testing the War Powers Act
Trump’s strike on a boat in the Caribbean is also on murky legal ground.
After Vietnam, Congress overrode Richard Nixon’s veto to pass another law, the War Powers Act of 1973, which requires presidents to notify Congress within 48 hours of a military strike. And Trump did do that, at least his third such notification since taking office in January. Trump also sent notifications to Congress about his strike against an Iranian nuclear facility and Houthi rebels who were attacking shipping routes.
The Reiss Center at New York University maintains a database of War Powers Act notifications going back to the 1970s.
Cartels as terrorist organizations
In the notification about the Caribbean strike, Trump’s administration argued that it has declared drug cartels are terrorist organizations and that he operated within his constitutional authority to protect the country when he ordered the strike.
Strikes against terrorists have been authorized under the catchall vote that authorized the use of military force against Islamic terrorists after the 9/11 terror attacks.
But Congress, which the Constitution puts in charge of declaring war, has not authorized the use of military force against Venezuelan drug cartels.
Lack of explanation from the White House
Over the weekend, CNN’s Katie Bo Lillis, Natasha Bertrand and Zachary Cohen reported that the Pentagon abruptly canceled classified briefings to key House and Senate committees with oversight of the military, which means lawmaker have been unable to get the legal justification for the strike.
Many Americans might celebrate the idea of a military strike to take out drug dealers, and the administration is clearly primed to lean on the idea that the cartels are terrorists.
Here’s a key quote from CNN’s report:
“The strike was the obvious result of designating them a terrorist organization,” said one person familiar with the Pentagon’s thinking. “If there was a boat full of al Qaeda fighters smuggling explosives towards the US, would anyone even ask this question?”
Few details
It’s not yet clear which military unit was responsible for the strike, what intelligence suggested there were drugs onboard, who was on the boat or what the boat was carrying.
“The attack on the smuggling vessel in the Caribbean was so extraordinary because there was no reported attempt to stop the boat or detain its crew,” wrote Brian Finucane, a former State Department legal advisor now at International Crisis Group for the website Just Security. “Instead, the use of lethal force was used in the first resort.”
Secretary of State Marco Rubio said the US could have interdicted the boat and made a legal case against those onboard, but it decided instead to blow up the boat. The notice to Congress makes clear the administration will continue with other strikes.
War crime? Vance doesn’t ‘give a sh*t’
“The decision to blow up the boat and kill everyone onboard when interdiction and detention was a clearly available option is manifestly illegal and immoral,” Oona Hathaway, a law professor and director of the Center for Global Legal Challenges at Yale Law School, told me in an email.
The view of the administration could be best summarized by Vice President JD Vance stating that using the military to go after cartels is “the highest and best use of our military.”
When a user on X replied that the extrajudicial killing of civilians without presenting evidence is, by definition, a war crime, Vance, himself a Yale-educated lawyer, said this:
“I don’t give a sh*t what you call it.”
That’s not an acceptable response even for some Republicans.
“Did he ever read To Kill a Mockingbird?” wrote Sen. Rand Paul of Kentucky in his own post on X. “Did he ever wonder what might happen if the accused were immediately executed without trial or representation?? What a despicable and thoughtless sentiment it is to glorify killing someone without a trial.”
Congress has power it likely won’t use
Congress has the power to stop Trump’s campaign against boats in the Caribbean. The War Powers Act allows lawmakers in the House and Senate to demand the president seek approval before continuing a campaign longer than 60 days. But that seems unlikely to occur at the moment.
After the strike against Iran earlier this year, Paul was the only Republican senator to side with Democrats and demand Trump seek approval for any future Iran strikes.
During his first term, seven Republicans voted with Senate Democrats to hem in Trump’s ability to strike against Iran after he ordered the killing of Iranian commander Qasem Soleimani. But there were not enough votes to overcome Trump’s veto that year.
Trump’s authority to use military force without congressional approval of the Caribbean operation technically expires after 60 days after he reports on the use of force, although he can extend it by an additional 30 days, although he could also declare a new operation is underway.
The use of these kinds of tactics has likely been in the works for some time.
In February, Trump designated drug cartels, including Venezuela’s Tren de Aragua, as foreign terror organizations. In April, CNN reported the CIA was reviewing whether it had authority to use lethal force against drug cartels.
But the military strike against the alleged cartel boat happened as part of a broader campaign against Venezuela, including positioning US ships, aircraft and a submarine in the Caribbean, according to a CNN report.
Trump may have campaigned as a president who would end wars, but he’s governing like a president who is very comfortable using his military.
