White House blew past legal concerns in deadly strikes on drug boats

President Donald Trump and his top White House aides pushed for lethal strikes on Western Hemisphere drug traffickers almost as soon as they took office in January, and in the past 10 months have repeatedly steamrolled or sidestepped government lawyers who questioned whether the provocative policy was legal, according to multiple current and former officials familiar with the debates.

As Trump weighs what could be imminent military action against Venezuela and its leader, Nicolás Maduro, while striking at alleged drug boats in the Caribbean Sea and eastern Pacific Ocean, new details are emerging about the evolution of a strategy that involves unprecedented U.S. military force against the narcotics trade — and, critics say, outsize legal risk.

The deadly attacks on small boats are being carried out by the Pentagon, which at Trump’s orders has amassed a vast array of warships, aircraft and troops in the region, including the largest U.S. aircraft carrier.

But early on, according to two people familiar with the matter, the administration proposed having the CIA use its unique covert authorities to conduct the lethal strikes on drug traffickers that Trump and Stephen Miller, his powerful homeland security adviser, wanted.

The spy agency, under Director John Ratcliffe, was rapidly ramping up its counternarcotics arm, consciously modeling the effort to mirror the post-9/11 U.S. war against terrorists.

White House officials initiated proposals that envisioned the CIA taking the lead, and work began on drafting a presidential authorization for covert action, known as a “finding.”

Lawyers at the spy agency and elsewhere in the government were skeptical. Was killing civilian drug traffickers defensible under domestic law, they asked, if the cartels do not actually seek to attack Americans, even if the product they smuggle might lead to deaths in the United States? Was it legal to kill drug traffickers, many of them apparently low-level, without knowing their identities?

“There is no actual threat justifying self-defense — there are not organized armed groups seeking to kill Americans,” said one person familiar with the legal debate, who like others interviewed for this report spoke on the condition of anonymity to avoid retribution and because of the matter’s sensitivity.

Though the hand behind covert actions is supposed to be hidden, Miller and his team wanted to publicize any strikes on what Trump has deemed “narcoterrorists,” including through videos of drug labs or boats being blown up, one person familiar with the matter said.

Amid pushback on CIA action from lawyers in the late spring, the administration forged ahead with an alternative plan that was already under discussion: to use the U.S. military. And it came up with a legal justification that national security law experts inside and out of government have said does not stand up to facts: that the country was in a “non-international” armed conflict with “designated terrorist organizations.”

This account of the evolution of the Trump administration’s lethal counter-drug strategy is based on interviews with almost 20 current and former officials and other people familiar with aspects of the discussions.

“President Trump is prepared to use every element of American power to stop drugs from flooding in to our country and to bring those responsible to justice,” a senior administration official said in an email in response to questions from The Washington Post, noting that operations have been given careful legal scrutiny and were deemed lawful.

By midsummer, the administration was considering boat strikes and a second set of Venezuela-focused options, which included the seizure of oil fields and a “snatch and grab” of Maduro, said one former official.

“President Trump has been clear in his message to Maduro: Stop sending drugs and criminals to our country,” said the senior administration official, who spoke on the condition of anonymity because of the matter’s sensitivity.

The CIA declined to comment on deliberations about the lethal strikes.

In the ongoing mission the Pentagon recently dubbed Operation Southern Spear, U.S. military forces have killed more than 80 people in 21 strikes on boats in the Caribbean and eastern Pacific. Democratic and some Republican lawmakers have decried the strikes, which have roiled U.S. relations with several Latin American powers.

The president ultimately gave the CIA power to use lethal force. Trump acknowledged in October that he had authorized the agency to take covert action in support of his war on narcotraffickers.

The details of the finding that Trump signed in October are classified. But several people familiar with it have said it is broadly scoped, aggressive and aimed at countering transnational criminal organizations, including through lethal force.

As far as is known, the CIA and other spy agencies are supplying intelligence to support the Pentagon strikes, but not choosing targets or launching weapons.

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Speeding past legal guardrails

By late spring and early summer, as the White House was busy on multiple fronts — planning an operation to bomb Iran’s nuclear facilities, mediating a peace deal for Gaza — it seemed, temporarily at least, that the appetite for action had diminished.

But Miller, who has overseen Trump’s hard-line agenda on drugs and immigration, and other top advisers never lost sight of crushing the cartels. And in pursuing this goal they were aided in part by a personnel restructuring that removed potential obstacles.

Many of the lawyers and other career officials at the White House National Security Council, Pentagon and Justice Department who had over the preceding months raised concerns about using lethal force against narcotraffickers had either left government or were reassigned or removed.

Proposed findings are typically reviewed by lawyers at the CIA and other agencies, including the Office of the Director of National Intelligence and Justice, State and Defense departments. Then an interagency review is conducted, usually overseen by the NSC’s legal adviser.

But by summer, the NSC’s entire full-time legal staff of about half a dozen was gone. Some left when their details ended and others — including the shop’s top lawyer, former Pentagon general counsel Paul Ney — were let go in a May staff shake-up, three former officials said. Ney had been among the lawyers who had raised concerns about the legality of lethal strikes, the former officials said.

A senior administration official said that Ney left because “the original NSC legal versus White House Counsel’s Office structure never worked,” and praised the moves as achieving efficiency that gives the president “more visibility into his foreign policy agenda.”

“There are actually more lawyers working on the NSC portfolio than prior to the restructuring,” the official said, referring to lawyers in the White House counsel’s office, who may also have other duties. The official spoke on the condition of anonymity to discuss internal NSC processes.

The NSC legal adviser vacancy in particular is significant, said Carrie Cordero, a national security lawyer in the George W. Bush and Obama administrations, who is now a senior fellow at the Center for a New American Security. “The absence of a seasoned national security lawyer serving in that role means that the principals in the White House are not getting the best national security legal advice that they can.”

Meanwhile, career civilian lawyers at the Defense Department had largely been cut out of cartel strike discussions by the political leadership.

In the summer, the Justice Department’s Office of Legal Counsel (OLC) produced a classified opinion that asserted a legal foundation for the strikes. The memo, which runs several dozen pages, is said to argue that the U.S. is in an armed conflict with “narcoterrorists,” and that using lethal force against them advances an important national interest while not rising to a level of war that constitutionally would require congressional authorization.

The opinion “memorialized a decision taken by a restricted interagency lawyers group” made up of four career lawyers, including two uniformed military attorneys, and four political appointees, the senior administration official said. “The group unanimously concluded that ongoing actions are a legally available option for the president,” the official said.

The Defense Department declined to address questions about internal legal discussions about the strikes or worries among some personnel that the strikes could be unlawful.

The Defense Department “categorically denies that any Pentagon lawyers, including SOUTHCOM lawyers, with knowledge of these operations have raised concerns to any attorneys in the chain of command regarding the legality of the strikes conducted thus far because they are aware we are on firm legal ground,” said Pentagon spokesman Sean Parnell in a statement, referring to Southern Command, which is responsible for operations in the region.

“Our current operations in the Caribbean are lawful under both U.S. and international law, with all actions in complete compliance with the law of armed conflict,” Parnell added.

In August, the administration’s determination that the U.S. was in an armed conflict with drug cartels was conveyed to military officials, according to people familiar with the matter.

Soon after, in early September, military special operators struck an alleged drug boat that Trump said was carrying “Tren de Aragua Narcoterrorists … operating under the control of Nicolás Maduro.”

Two family members of the 11 killed did not deny they had been taking marijuana and cocaine from Venezuela to Trinidad, but denied they had worked for the Venezuelan gang, Tren de Aragua. U.S. intelligence agencies have determined that the Venezuelan government does not direct the group.

Two days later, on Sept. 4, Trump notified Congress of the strike.

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Getting the CIA on board

At the end of September, the CIA’s Ratcliffe appointed his deputy, Michael Ellis, as temporary general counsel — an unusual dual role. Besides serving as deputy, helping run the agency, he would be “acting” as the agency’s top lawyer until a permanent general counsel, Josh Simmons, was confirmed. The confirmation is expected to happen early next month.

Ellis, a former NSC lawyer and intelligence aide in the first Trump administration, took over from a career CIA lawyer who was serving as acting general counsel. That lawyer, who is still in the general counsel’s office, was among those who had raised questions about the legality of the agency’s use of lethal force, according to people familiar with the matter.

After taking up the new role, Ellis gave his support to the proposed finding authorizing covert CIA action against alleged cartels, according to two people familiar with the matter.

Asked why Ratcliffe named Ellis acting general counsel, CIA spokeswoman Liz Lyons said: “The director asked Michael Ellis to serve as the acting general counsel given his reputation as one of the finest national security lawyers in the nation.”

Neither Ellis’s nor Ratcliffe’s sign-off was technically necessary, but it is highly unlikely that the president would have authorized the finding without support at the agency’s highest levels, former senior intelligence officials said.

In October, Trump acknowledged he had approved a covert action authorization, an extraordinary disclosure in that such activities are supposed to remain secret and deniable.

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‘Is it legal just to kill the guy?’

At the CIA, some operational personnel are worried about a potential repeat of episodes where the agency’s covert operations prompted legal and political blowback, such as the 1980s Iran-Contra scandal and the rendition and interrogation of terrorist suspects after the September 2001 attacks, according to three former officials.

“The question is, is it legal just to kill the guy if he’s not threatening to kill you and you’re outside an armed conflict? There are people who are simply uncomfortable with the president just declaring we’re at war with drug traffickers,” said a former senior official familiar with the debate.

“Internally, a lot of people are treating this like the rendition program,” the former official said. “It’s one thing to get rid of [Iraqi dictator] Saddam Hussein or [Libyan autocrat] Moammar Gadhafi for counterterrorism reasons. This is different.’’

A big objection has been that “there’s no evidence these small boats qualify as legitimate operational targets,” said the former official, noting that in past counterterrorism strikes the CIA would distinguish between support and operational personnel, placing a much higher bar on targeting low-level couriers than, say, bombmakers. He noted that the CIA has taken part in lethal operations against the heads of drug cartels.

Concerns extend to the Americas and Counternarcotics Mission Center, according to current and former officials. “There’s just so much nervousness in the office,” said a second former official. “The mood is, we don’t even know if what we’re doing is legal.”

One mission center lawyer who questioned the use of lethal force against drug traffickers has been reassigned and replaced with a career CIA lawyer, people familiar with the matter said, though the reason for the person’s reassignment was not clear.

That concern is coming as the agency has surged personnel to that mission center, earlier reassigning more than two dozen analysts from other centers, including those that handle Europe and Eurasia and counterproliferation, according to another person familiar with the matter.

The former official noted that the OLC asserted the use of lethal force against suspected drug cartels would be legal. “There’s no evidence of illegality — just a lot of hand-wringing from people who don’t want to do the mission or are nervous about it,” said the former official. “I get the nerves, but that doesn’t make the activity illegal.”

Still, in the military as at the agency, nerves are jangling.

The justification for directing the military to kill suspected drug traffickers triggered profound legal and ethical questions among troops. Some have drawn distinctions between the traffickers and terrorist groups such as the Islamic State and have struggled to accept that alleged criminals meet the same threshold for lethal strikes.

In recent weeks, junior officers in the military, fearing potential legal exposure, asked military lawyers, known as judge advocates general, for written sign-off before taking part in strikes, said two people familiar with the matter. It does not appear that such memos were furnished.

Some personnel are worried they might need attorneys in the future, said some current and former officials, describing concerns that a new administration and lawmakers might scrutinize the operation.

In the past week or so, some career civilian lawyers at the Pentagon have been included in strike discussions, and they are raising concerns about the use of lethal force, said people familiar with the matter.

On Tuesday, six Democratic lawmakers who served in the military or intelligence community released a video that went viral.

“You can refuse illegal orders,” they said, speaking directly to service members and intelligence professionals. “No one has to carry out orders that violate the law or our constitution.”

On Truth Social on Thursday, Trump said the lawmakers’ comments were “dangerous to our country.”

An hour later, he put up another post, accusing the group of “SEDITIOUS BEHAVIOR, punishable by DEATH!”

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• Dan Lamothe, Aaron Schaffer and Noah Robertson contributed.

Reach the reporters securely on Signal: Ellen Nakashima at Ellen.626, Warren Strobel at 202-744-1312 and Alex Horton at AlexHorton.85