The Department of Justice has cobbled together a legal opinion that claims that U.S. military personnel involved in strikes against alleged narcotics-trafficking boats are not criminally liable for their actions, because they’re engaged in an armed conflict declared by the president. According to a report yesterday in The Washington Post, the memo claims that personnel taking part in the boat strikes would not be exposed to future prosecution. The decision to pursue an opinion, drafted in July, reflects the heightened concerns within the government, raised by senior civilian and military lawyers, that such strikes would be illegal.
The Office of Legal Counsel )OLC) opinion, which runs nearly 50 pages, reportedly argues that the United States is in a “non-international armed conflict” waged under the president’s Article II authorities, a core element to the analysis that the strikes are permissible under domestic law. The armed-conflict argument, which was also made in a notice to Congress from the administration last month, is fleshed out in more detail by the OLC, the Post reports further. The opinion also states that drug cartels are selling drugs to finance a campaign of violence and extortion, according to the Post’s sources.
That assertion, which runs counter to the conventional wisdom that traffickers use violence to protect their drug business, appears to be part of the effort to shoehorn the fight against cartels into a law-of-war framework, analysts said.
