188. Five Questions About "Extrajudicial Killings"

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court (and related topics) more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks:

Thursdays are usually when I put out the weekly “bonus” issue of the newsletter. But given that I already put out a bonus issue on Tuesday (previewing yesterday’s arguments in the tariffs cases, which, IMHO, didn’t go very well for the Trump administration), I wanted to take this opportunity to address a critically important topic that I haven’t yet been able to cover: The Trump administration’s (ever-expanding) campaign of military strikes against alleged drug boats in both the Caribbean Sea and the Pacific Ocean. According to the New York Times, which is closely tracking the strikes, there is now public confirmation of at least 16 strikes in those geographic areas that have killed at least 67 individuals (and from which at least two others survived).

There’s no question that, over the last half-century, we’ve seen a significant drift of war powers from Congress to the executive—one that many have long criticized, myself included. It is therefore possible that at least some folks have become desensitized to these headlines by the military force exercised by previous presidents—and view what’s happening in the Caribbean and the Pacific as different, if at all, only in degree. When we’re drinking from a firehose, it’s hard to focus on the individual spouts of water. But the post that follows explains why this is a serious underreaction—and why there is, especially as of this past Monday, no viable legal basis under U.S. law for what the Trump administration is doing.

Worse than that, whatever the internal legal rationale for these strikes is (and the Trump administration has pointedly refused to share it with anyone other than a handful of Republican members of Congress), there’s no publicly obvious reason why it would be limited to non-citizens and/or targets outside U.S. territory. Kentucky Senator Rand Paul was absolutely right to describe these strikes as “extrajudicial killings,” a term that has come to be used to refer to targeted uses of force by the state against specific individuals. But they’re even worse than that, for they are, near as I can ...