The Department of Justice Office of Legal Counsel is the office that is charged with providing the legal opinion for whether acts of government are, or are not, lawful. While it’s hardly a court opinion, it is, for the purposes of the internal management of the United States government, conclusive. When the act of government is challenged, it then falls to the courts to determine whether OLC was right, and the court decisions prevail. Or at least, that’s the way it’s supposed to work.
The problem is that reliance on the opinion of the Office of Legal Counsel presupposes that its opinion is legitimate, and that the office has faithfully applied the law to render an opinion with legal integrity. It’s failed to do so in the past, as with John Yoo’s torture memo, which failed to provide a lawful rationale, but instead provided a facile rationalization to allow the president to do what he wanted. In that case, to waterboard prisoners.
And while no one outside of government has as yet seen the memo regarding the bombing of boats and the murder of those within them on the high seas, those who have are talking and it’s about as bad as one would expect.
The administration has insisted that Mr. Trump has the authority to lawfully order the strikes under the laws of war, but it has provided scant public details about its legal analysis to buttress that conclusion. The accounts of the memo offer a window into how executive branch lawyers signed off on Mr. Trump’s desired course of action, including appearing to have accepted at face value the White House’s version of reality.
It was already known that the Trump position at DoJ is that the law is whatever Trump says it is, and that the facts are as Trump says they are, and that loyal servants in the government will do as Trump says to do. And that appears to be the case at OLC.
The memo, which was completed in late summer, is said to open with a lengthy recitation of claims submitted by the White House, including that drug cartels are intentionally trying to kill Americans and destabilize the Western Hemisphere. The groups are presented not as unscrupulous businesses trying to profit from drug trafficking, but as terrorists who sell narcotics as a means of financing violence.
Are drug smugglers criminals who seek to make a personal profit from drugs, or terrorists who sell drugs to finance terrorism? This is a critical distinction in the OLC memo’s rationalization for what follows, and since Trump has “determined” reality to be the latter, that’s the reality addressed by the memo.
Based on such claims, the memo states that Mr. Trump has legitimate authority to determine that the United States and its allies are legally in a formal state of armed conflict with “narco-terrorist” drug cartels, according to the people who have read the document. The rest of the memo’s reasoning is based on that premise.
For example, the people said, the memo asserts that boats believed to be carrying narcotics are lawful military targets because their cargo would otherwise generate revenue that cartels could use to buy military equipment to wage the purported armed conflict.
Are drug cartels buying military equipment to wage armed conflict against the United States, or are they buying fancy cars and exotic animals? Remember when the Sinaloa Cartel tried to buy F-35 fighters? Oh wait, that was Saudi Arabia, who will share them with China.
So what should the military, ordered to commit the bombings and murders, do when confronted with an OLC legal opinion that bootstraps Trump’s reinvention of reality to feign legalization of facially criminal conduct?
And a lengthy section at the end of the memo, they said, offers potential legal defenses if a prosecutor were to charge administration officials or troops for involvement in the killings. Everyone in the chain of command who follows orders that comply with the laws of war has battlefield immunity, the memo says, because it is an armed conflict.
Therein lies the crux of the matter, it’s armed conflict because the president says it is. “Narco-terrorists” are combatants because the president says they exist, and because they exist, they are. So murder away and you have the OLC memo to wrap around yourself and keep your warm and comfy at night.
In endorsing Mr. Trump’s determination that there is an armed conflict, the memo accepted the White House’s assertions uncritically, according to the people who have read it.
For example, they said, the memo cites the White House’s claim that cartels are responsible for the deaths of tens of thousands of Americans a year. But it does not address the fact that a surge in overdoses over the past decade was caused by fentanyl, which comes from labs in Mexico controlled by Mexican cartels, not by South American cocaine.
Nor does it address the fact that overdose deaths are hardly the purpose of drug smuggling, but then the public face of the Trump rationalization has nothing to do with the claimed legal justification that cartels are funding a war, but with evoking outrage at drugs and purporting to fight overdose deaths to garner public support since the rationalization relied upon by OLC is so ridiculous, far-fetched and baseless as to fail the laugh test.
But doesn’t Congress have to approve these extrajudicial murders?
Despite concluding that an armed conflict is underway, the memo also says the operation is not covered by the War Powers Resolution, a 1973 law that requires presidents to terminate deployments of troops into “hostilities” after 60 days if Congress has not authorized them. This part of its reasoning, which has been previously reported, turns on the idea that airstrikes that do not put U.S. personnel in danger should not be interpreted as “hostilities.”
Then again, it’s not as if the Republican majority in the House or Senate has shown any interest in taking any action that might make Trump unhappy. And so the murders continue, with four more dead yesterday, bringing the number of people murdered on the high seas to 80.
Mr. Hegseth added that “this mission defends our Homeland, removes narco-terrorists from our Hemisphere, and secures our Homeland from the drugs that are killing our people. The Western Hemisphere is America’s neighborhood — and we will protect it.”
And our largest aircraft carrier, the Gerald Ford, is now in the Caribbean to support these killings and unavailable should anything happen to Taiwan, which is not in our neighborhood and would make sleepovers with Chairman Xi unpleasant.
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