Dear JD:
Whatever your other qualities may be, you’re smart enough and perceptive enough to have written a best-selling memoir and to have graduated from Yale Law School. Surely, at some level, you recognize the truth of the following exchange between Emily Bazelon and David French in the New York Times:
EMILY: What do you make of Trump’s insistence on blowing boats — and the people in them — out of the ocean based on no specific public proof of drug-smuggling and “narco-terrorism?” This is Trump’s made-up rationale for killing Venezuelans or other foreign nationals who come into the U.S. military’s cross hairs at sea.
Trump says he can do this because he has “determined” in a confidential notice to Congress that the United States is in a formal armed conflict with drug cartels. But the military is not permitted to intentionally target civilians who pose no threat of imminent violence, even suspected criminals. (I can’t believe I have to write that down, it seems so bedrock to human rights and the rule of law.)
You’re a former military lawyer. Is this like killing enemy combatants associated with Al Qaeda, as presidents have done before, or other drone killings abroad? Or is Trump doing something different and more sinister here by causing what now comes to at least 67 deaths in 16 strikes at sea?
DAVID: Trump is doing something different and much more sinister. I know that people of good will disagreed with the breadth and extent of the Bush or Obama military campaigns against Al Qaeda, but both presidents were operating under a clear grant of congressional authority. The post-9/11 authorization for use of military force gave American forces the constitutional authority to conduct a military campaign against Al Qaeda and those who harbored it, and the Al Qaeda attacks on America gave us the right to respond under international law. We were on solid legal and moral ground.
By contrast, not only is there no congressional authority empowering Trump’s attacks, they also violate international law. Crime and war are not the same thing, and Trump is reacting to crime as if he’s responding to an imminent armed military attack on America. In reality, he’s striking suspected drug traffickers who are sailing very far from American seas who are the farthest thing from an imminent threat.
Don’t think for a moment that the only alternative to armed strikes is to simply let the boats sail away. The normal course of action is to stop a suspected drug boat, search it for drugs, and arrest and question its crew if incriminating evidence is found. That’s preferable on moral, legal and practical grounds as opposed to simply blowing them away from the air. It’s much more difficult to gather intelligence and information from dead men.
The military has assisted in antidrug efforts in South America for a long time. We’ve provided logistical and intelligence support and have even provided intelligence to other militaries in their efforts to shoot down planes suspected of carrying drugs (this program resulted in the horrific accidental killing of an American missionary and her daughter in Peru in 2001 — demonstrating, as if we needed more proof, that our intelligence is not always airtight).
But we’re dealing with something far beyond providing assistance to foreign governments when they use force. We’re directly attacking suspected criminals on the president’s sole authority. What is the limiting principle here? If crime is now war, then who can’t the president kill?
JD, despite your public statements presumably rooted in a perceived obligation to defend Trump’s policies, you know that these killings are wrong. You know this as a law-school graduate and as a Catholic and as an American. Please talk to Trump privately and try to get him to change course.
Almost any approach to suspected drug trafficking would be better than one that routinely kills civilians preemptively.
Sincerely,
Greg
My Track Record 
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