ARI SHAPIRO, HOST:
A 30-second video clip shows a boat bobbing in the water, then a fireball and a huge plume of smoke. President Trump posted that footage on social media this week saying he ordered the U.S. military to attack what Trump called narco-terrorists from Venezuela. It's the second time this month that President Trump has ordered this sort of a deadly strike on a boat that he claims carried illegal drugs. The attacks raise big legal questions - questions that John Bellinger has wrestled with for years. He was legal adviser to the State Department during the George W. Bush administration. He also testified to Congress about lethal drone strikes during the Obama administration, and he's with us now. Welcome.
JOHN BELLINGER: Nice to be with you, Ari.
SHAPIRO: Venezuela's President Nicolas Maduro called the first attack on a boat, quote, "a military action on civilians who were not at war and were not militarily threatening any country." We don't know who was on the boats or whether they were carrying illegal drugs, as Trump claims. But what legal authority is the president using to order these attacks without any prior approval from the courts or from Congress?
BELLINGER: Well, it's unclear is the answer. The attack based on the facts that the White House has put out so far, for both attacks, is that it's legally questionable under both U.S. and international law. The president, after the first attack on September 2, filed a report with Congress called a War Powers report in which he said that he was acting under his constitutional authority under Article II of the Constitution. He didn't claim any congressional authority, and he said that it was an action in self-defense. But he didn't specify whether the boat or the people on it posed any particular threat, whether they had conducted an attack or were planning an attack. So the president said that he had the constitutional authority to do it. He said he was acting in self-defense, but he really didn't lay it out in any detail. As far as the second attack on September 15, he has not laid out in any detail what the basis was for that.
SHAPIRO: So if I could just parse what you're saying. The president is claiming this is his constitutional authority under Article II, that the U.S. is acting in self-defense against an imminent threat and that these drug cartels are a terrorist organization and the president's designation that the U.S. is - am I correct? - effectively at war with, in his analysis.
BELLINGER: Well, it's not clear whether he is saying that we are at war with these groups. He says that they are a terrorist group and that they're engaged in drug trafficking. Now, his War Powers report used the words self-defense but never said that this group had either attacked the United States or was planning an attack against the United States. So this is different than what prior presidents have done in launching drone strikes or other attacks against members of al-Qaida or ISIS.
SHAPIRO: So you said that these claims are questionable under U.S. and international law. Typically, those questions would be answered by some kind of judicial process in court. Is there such a process? Can these claims be evaluated?
BELLINGER: Under U.S. law, sometimes there can be challenges in court, but the courts generally try to stay out of these questions, finding that they are nonjusticiable. At the international level, I have not seen a single international lawyer who thinks that it's permissible for a country to blow up the civilians of another country on the high seas unless they were actually posing an imminent attack. But the question is, really, is this the sort of thing that Americans would think is acceptable if other countries did it - if Russia or China or a country closer to home, like Mexico or Canada, just blew up a boat on the high seas with suspected drug traffickers, possibly even Americans in it? Would we think that that's OK? I don't think President Trump and his administration are likely to be held accountable for this, but it certainly raises very serious questions under both domestic law and international law.
SHAPIRO: So where do you think this is likely to lead?
BELLINGER: These strikes really are unprecedented, particularly if they continue. I think it's important for Congress and the American people to ask tough questions about whether this is really consistent with the rule of law and the kind of country that the United States wants to be.
SHAPIRO: That's former State Department legal adviser John Bellinger. He's now a senior fellow on international law at the Council on Foreign Relations. Thank you for your time.
BELLINGER: Thanks, Ari. Nice to be with you. Transcript provided by NPR, Copyright NPR.
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