WASHINGTON – The senior military lawyer for Combatant Command, which oversaw the deadly attack on a suspected drug-smuggling vessel in waters near Venezuela, disagreed with the Trump administration’s position that the operation was legal and his opinion was ignored, six sources familiar with the legal advice said.
The lawyer, who is the senior judge advocate general (JAG in military parlance) for U.S. Southern Command in Miami, raised legal concerns in August before the airstrikes 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 rejected by senior government officials, including officials from the Justice Department’s Office of Legal Counsel, six people familiar with the matter said. Other JAGs and military lawyers of various seniority levels also participated in the boat strike. It’s unclear what their opinions were, but some military lawyers, both civilian and uniformed, also expressed concerns to commanders and Pentagon officials about the legality of the attack, two senior congressional aides and a former U.S. official said.
The Southern Command JAG expressed particular concern that attacks on people on boats in the Caribbean and Eastern Pacific, whom administration officials described as “narco-terrorists,” amounted to extrajudicial killings and could therefore lead to legal enforcement of service members involved in the operation, six officials said.
The opinion of the command’s top lawyer, who typically oversees military operations, is critical to whether the operation moves forward. While senior officials can overrule such lawyers, it is rare for a business to proceed without taking their advice into account.
“The Department of the Army categorically acknowledges that Defense Department lawyers, including Southcom’s lawyers, are familiar with these operations and have raised concerns among lawyers up the chain of command about the legality of the attacks that have taken place to date,” Sean Parnell, chief Pentagon spokesman, said in a statement. “They recognize that we are on solid legal footing. Our current operations in the Caribbean are legal under both U.S. and international law, and all actions are fully compliant with the laws of armed conflict.”
A Southern Command spokesperson referred questions to the Department of Defense, which the Trump administration refers to as the Department of the Army. A White House press secretary did not respond to a request for comment.
The JAG is Marine Col. Paul Meagher, three people familiar with the matter said. Attempts to reach Mr. Meagher for comment were unsuccessful.
According to a report by NBC News, the attack on the alleged drug smuggling vessel has received support from Republicans, but has also drawn criticism from members of both parties.
The Southern Command JAG’s previously unreported opinion adds a new dimension to concerns raised by lawmakers, military veterans and legal experts about the administration’s legal legitimacy to attack alleged drug ships.
Those concerns center on the question of whether the attack violated international or U.S. law.
Since September 2, the regime has carried out 21 raids on small vessels believed to be transporting drugs bound for the United States, killing 82 people, the newspaper said.
Administration officials have not provided concrete evidence to support their claims.
The administration told members of Congress that President Donald Trump has determined that the United States is in an “armed conflict” with drug cartel members, NBC News reported. This year, the administration designated some drug cartels in Latin America as foreign terrorist organizations.
President Trump claimed that drugs from the region pose a serious threat to the American people. He has linked the ships to fentanyl, which he claims has saved tens of thousands of American lives in military strikes, which are typically smuggled into the United States by land across the Mexican border. Cocaine mostly travels by sea, but is considered far less deadly than fentanyl.
JAG opinions on potential military operations are typically shared with senior authorities, including the Pentagon general counsel, Justice Department officials and ultimately the White House, according to current and former U.S. officials familiar with the process.
Current and former U.S. officials familiar with the process say the JAG typically plays a key role in defining the legal parameters of any military operation, and its collective advice will often be the primary guide when political leaders decide whether to take such action.
In the Trump administration’s campaign against suspected drug smuggling, senior-level politically appointed lawyers have often defined the legality of operations with minimal legal input from lower levels, according to two senior congressional aides and a former senior U.S. government official.
There are other signs of disagreement within the administration over the strike. Gen. Alvin Holsey, commander of Southern Command, is set to retire after less than a year in the job, which typically lasts about three years.
Halsey announced in October that he would step down next month.
In addition to concerns about the legality of the airstrikes, Democratic and Republican lawmakers on Capitol Hill have expressed frustration that the administration has not provided them with sufficient information or legal basis for targeting vessels or people the administration says are bringing drugs into the United States.
“There is no world in which this is legal,” said one active JAG, who spoke on condition of anonymity because he was not authorized to speak publicly.
Congress has not authorized the declaration of war or the use of military force against drug traffickers, and U.S. law only allows the president to take military action without approval from lawmakers in the event of a national emergency caused by an attack on the country or U.S. military.
Dan Maurer, an associate professor of law at Ohio Northern University and a former Army JAG, argued that while drug smuggling and other activities by drug cartels are crimes, they do not constitute an armed attack on the United States as defined by U.S. and international law.
“These drug cartels are violent, aggressive and can cross borders,” Maurer said in an interview. “They may be doing terrible things in their own country, and they may be bringing terrible things into our country that have bad consequences, but all of those are crimes, and none of them fall into the traditional sense of attack or invasion.”
Maurer and other former military lawyers and experts believe the legal basis for the Trump administration’s airstrikes is so weak that commanders and troops could be in legal jeopardy after Trump leaves office in 2029.
Trump administration officials defended the legality of the airstrikes and insisted they shared sufficient information about the strikes with members of Congress.
The legal debate over the airstrike is likely to intensify if President Trump decides to attack targets inside Venezuela as he has threatened. Two additional congressional aides said senior administration officials told lawmakers in a closed-door briefing last week that the current legal basis for attacks on ships does not apply to attacks on land.
Some of the military’s attacks on boats have resulted in fatalities, and critics of the operations say they may be non-combatants or migrants who hitchhiked onto the boats and have no connection to the drug trade. The two survivors of the strike were captured and extradited to Colombia and Ecuador rather than being taken into U.S. custody, a decision that one congressional aide said raised questions about whether there was enough evidence to charge them with crimes.
The domestic disagreement over the legality of boat strikes mirrors similar debates more than two decades ago. During President George W. Bush’s administration, senior military lawyers for the Army, Air Force, and Marine Corps objected to proposed “enhanced” interrogation techniques in 2003 and later testified before Congress about their concerns. They warned that U.S. courts could find these techniques amounting to torture and illegal.
John Yoo, who became the controversial legal architect of the Bush administration’s “war on terror” after the September 11, 2001 attacks, has argued that the Trump administration’s boat attacks risk crossing the line between “fighting crime and war.”
“Americans are dying in car crashes at a rate of about 40,000 a year in recent years,” he recently wrote in an op-ed for the Washington Post. “This country is not at war with the auto companies.” “American law instead relies on criminal justice or civil tort systems to respond to widespread and persistent social harm.”
