In a significant and controversial declaration, President Trump’s administration recently informed Congress that it views the fight against drug cartels as a formal ‘armed conflict.’ This means that suspected smugglers linked to these cartels, which the administration has classified as terrorist organizations, are now being designated ‘unlawful combatants.’
This confidential notice, obtained by The New York Times, elaborates on the administration’s legal justification for three U.S. military strikes in the Caribbean Sea last month. These operations resulted in the deaths of all 17 individuals on board the targeted vessels, raising questions about their legality and whether they constitute murder or justifiable acts of war.
According to legal experts, President Trump’s formal classification of the anti-cartel campaign as an active armed conflict significantly expands his administration’s wartime powers. Under international law, such a declaration permits a nation to lawfully kill enemy combatants without immediate threat, hold them indefinitely without trial, and even try them in military courts.
Geoffrey S. Corn, a retired judge advocate general lawyer and former senior Army adviser on law-of-war issues, strongly disputes this interpretation. He argues that drug cartels are not engaged in ‘hostilities’ against the U.S. in the legal sense, as selling a dangerous product is fundamentally different from initiating an armed attack. This distinction is crucial for defining an armed conflict.
Corn characterized the president’s action as a ‘major legal abuse,’ emphasizing that military targeting of civilians not directly involved in hostilities, including suspected criminals, is illegal.
He bluntly stated, ‘This is not stretching the envelope. This is shredding it. This is tearing it apart.’
The White House declined to comment on the matter.
Previously, the Trump administration defended these strikes as acts of self-defense, claiming the targets were smuggling drugs for cartels designated as terrorist organizations. They cited the laws of war to justify lethal force instead of arrest, and highlighted the tragic toll of approximately 100,000 American overdose deaths each year.
Critics, however, point out that the administration’s attacks have primarily targeted boats originating from Venezuela. Drug trafficking experts note that the recent spike in overdose deaths is largely attributed to fentanyl from Mexico, not South America. Beyond these factual discrepancies, legal scholars specializing in armed conflict law have widely condemned the administration’s sparse justification for its actions.
This congressional notice, classified as controlled unclassified information, refers to a statute mandating reports to lawmakers on U.S. military engagements. While reiterating previous arguments, it significantly expands them by presenting the military’s boat attacks as components of an ongoing, active conflict, rather than isolated incidents of self-defense.
The document explicitly states President Trump’s ‘determination’ that drug-smuggling cartels are ‘nonstate armed groups’ whose activities amount to an ‘armed attack against the United States.’ It further invokes the international law term ‘noninternational armed conflict’ to characterize this new form of warfare against a nonstate entity.
The notice formally declared: ‘Based upon the cumulative effects of these hostile acts against the citizens and interests of the United States and friendly foreign nations, the president determined that the United States is in a noninternational armed conflict with these designated terrorist organizations.’
The concept of ‘noninternational armed conflict’ originated in 20th-century law to describe civil wars within a single country, distinct from conflicts between nation-states.
Following the September 11, 2001, terrorist attacks, the U.S. declared war on Al Qaeda, a nonstate actor operating internationally. This prompted objections from some legal scholars who argued the U.S. was stretching legal definitions to apply wartime powers to a group they considered more akin to a criminal organization.
However, the Supreme Court ultimately affirmed that the conflict with Al Qaeda constituted a legitimate war. It upheld the Bush administration’s authority to indefinitely detain captured Al Qaeda members without trial, while simultaneously mandating humane treatment and prohibiting torture under the Geneva Conventions.
The Court’s decision was rooted in Al Qaeda’s intentional use of hijacked airplanes to kill people in attacks against the United States, coupled with congressional authorization of military force. Notably, a 2006 ruling also saw the Court reject the Bush administration’s initial attempt to use military commissions, insisting that explicit legislative approval was required.
Here, the Trump administration appears to equate the trafficking of illegal and dangerous substances with an act of force or an armed attack. Crucially, Congress has not granted any authorization for military force specifically against drug cartels.
While the U.S. government has long pursued a metaphorical ‘war on drugs’ through law enforcement, President Trump’s assertion of a literal state of war against cartels carries profound legal implications. Under standard law enforcement, suspected drug dealers are arrested; summary killings would be criminal. However, in a declared armed conflict, it becomes lawful to kill opposing combatants on sight.
The congressional notice also defended the most recent publicly revealed boat attack, where U.S. Special Operations Forces killed all three crew members on September 15, by labeling them ‘unlawful combatants’—treating them as soldiers in a combat zone.
The notice stated: ‘The vessel was assessed by the U.S. intelligence community to be affiliated with a designated terrorist organization and, at the time, engaged in trafficking illicit drugs, which could ultimately be used to kill Americans. This strike resulted in the destruction of the vessel, the illicit narcotics, and the death of approximately three unlawful combatants.’
Crucially, the notice omitted the specific names of the drug cartels involved in this declared ‘armed conflict.’ It also failed to outline the criteria the administration employs to determine if suspects are sufficiently linked to these groups to justify lethal military action.
Brian Finucane, a former State Department lawyer and expert in armed conflict law, voiced skepticism. He highlighted that international law requires a nonstate entity to meet the ‘organized armed group’ standard to be considered part of an armed conflict.
Finucane commented, ‘I’m not surprised the administration adopted this theory to legally retroactively justify their operations; I had anticipated it. However, a significant issue is the lack of clarity regarding whether the targeted entities truly constitute an organized armed group, a prerequisite for the U.S. to be in a Non-International Armed Conflict (NIAC) with them.’
He specifically questioned whether Tren de Aragua, a Venezuelan gang frequently mentioned by the Trump administration as a target, meets the ‘organized armed group’ criterion. An intelligence assessment from April, later declassified, described Tren de Aragua as ‘loosely organized cells of localized individual criminal networks’ and ‘decentralized,’ suggesting difficulty in coordinating actions.