Congress must act to address new and old executive abuses.
Early September marks the anniversary of two “wars”—one an actual armed conflict with a real, albeit stretched and abused legal framework, the other a completely counterfeit enterprise from the get-go. Sept. 11 is of course the 25th anniversary of al Qaeda’s attacks upon the United States. And Sept. 2 is the first anniversary of the Trump administration’s lethal maritime strikes against vessels alleged to be smuggling drugs.
The Trump administration has cynically tried to cloak its boat strikes in the mantle of the post-9/11 “war on terror”—labeling the victims of these attacks as “narco-terrorists,” supposedly affiliated with “designated terrorist organizations,” which the administration characterizes as the “‘al Qaeda’ of our hemisphere.”
But the “war” framing for the boat bombings is a sham. Although President Donald Trump has continued to wage the post-9/11 forever war, his faux war of the maritime strikes represents a frightening new development that is distinct from what came before. For Congress, though, the solution remains the same: firm action to curtail executive military adventurism.
The conflicts that made up —launched in response to the 9/11 attacks—had at the outset a cognizable legal foundation in both international and domestic law. Al Qaeda—an organized armed group—launched an armed attack upon the United States that killed almost 3,000 people. Acting on the basis of self-defense under international law, the United States waged an actual armed conflict with al Qaeda.
Moreover, as a matter of domestic law, Congress authorized the conflict through the 2001 Authorization for the Use of Military Force (AUMF). The 2001 AUMF empowered the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Because the perpetrators’ identities were not fully known in the immediate aftermath of 9/11, that war authorization delegated authority to the president to determine their identities.
But crucially, it granted the president only the authority to pursue military action to “prevent any future acts of international terrorism against the United States” by those responsible for the 9/11 attacks.
Although the United States’ post-9/11 conflicts had a legal basis at their inception, multiple U.S. presidents stretched and abused the 2001 AUMF to pursue new adversaries. Executive branch lawyers, using novel concepts such as “associated forces,” unilaterally expanded the scope of the 2001 war authorization to groups that did not exist on 9/11 and were never shown to pose a significant threat to the United States.
By waging hostilities against jihadis who are untethered to the original casus belli of 9/11, Trump has continued this misuse of the 2001 AUMF. Indeed, 25 years after 9/11, the AUMF’s principal use on the battlefield is not fighting the now-shattered al Qaeda or even its offshoot, the Islamic State, but conducting regular airstrikes against al-Shabab, an Islamic militant group in Somalia unconnected to the 2001 attacks and of seemingly minimal threat to the United States.
In the past year, the Trump administration has also conducted airstrikes in Nigeria—purportedly against Islamist militants. The administration is now reportedly deliberating over whether to conduct counterterrorism strikes in Mali against jihadi groups there. In both these latter situations, the Trump administration has not articulated the legal basis for military action, but it appears that the White House is relying on the 2001 AUMF as a catchall authority to bomb jihadis.
What any of these military actions have to do with preventing terrorist attacks against the United States is unclear. What is clear, however, is that they are not what Congress had in mind in 2001 when it authorized the president to go after the perpetrators of the 9/11 attacks.
The boat strikes are different. Despite trying to disguise them in the garb of counterterrorism and war, this campaign in the Caribbean and the eastern Pacific represents a pernicious innovation of Trump 2.0. As a legal matter, the killing spree at sea is distinct in key ways from the United States’ earlier conflicts with al Qaeda and the Islamic State.
Unlike with 9/11, the boat strikes were not triggered by any armed attack upon the United States. Contrary to suggestions from the administration, drug trafficking itself does not amount to an “armed attack” upon the United States that would give rise to a right to use force in self-defense. Indeed, in a 2023 congressional hearing, the top lawyer for the U.S. State Department noted that the department did not consider drug trafficking to constitute an armed attack under international law.
Additionally, unlike after 9/11, Congress has not authorized the use of military force for the boat strikes. Not only has the Trump administration conducted these strikes without authorization, but it has also continued these strikes in violation of the 60-day deadline imposed by the War Powers Resolution.
Most critically, unlike in the military operations against al Qaeda and its affiliates (and later the Islamic State), the United States is not in an armed conflict with drug cartels. A secret Justice Department memo reportedly argues to the contrary and justifies the strikes on the grounds that the United States is supposedly in armed conflicts with an also-secret list of designated terrorist organizations (DTOs). But there does not appear to be any factual basis for this conclusion as applied to the boat strikes.
Under international law, including as it has previously been applied by the U.S. government, for a state to engage in an armed conflict with a nonstate actor, that actor must possess military-type hierarchy, organization, and capabilities—in other words, it must be an “organized armed group.” The Trump administration has not explained how any of the secret DTOs constitute organized armed groups. Some of them, such as the Venezuelan gang Tren de Aragua, lack the hierarchy and organization needed to constitute an organized armed group with which the United State could engage in an armed conflict. Nor has the administration explained how the victims of these strikes are members of DTOs or constitute lawful targets.
The boat bombings therefore occur in what appears to be a make-believe war—a conflict conjured up by the administration to justify these killings. Outside of armed conflict, the general term for premeditated killing is murder. By inventing nonexistent conflicts with DTOs, the Trump administration seeks to excuse potentially criminal conduct.
Rather than representing a new phase in the war on terror, the Trump administration’s maritime strikes are instead a killing spree conducted without a credible legal justification—one that some senior officials reportedly find to be a source of entertainment. According to the New York Times’ Maggie Haberman, Trump is supplied with videos of the strikes, referred to as “Hegseth’s snuff films” within the administration.
The Times has separately reported that senior advisor Stephen Miller chairs bimonthly “wins” meetings to discuss the administration’s greatest self-perceived accomplishments; the Pentagon’s death toll from the strikes is regularly celebrated as one of the greatest “wins.”
September’s twin anniversaries should remind Congress and candidates hoping to join Congress in 2027 of the pressing need for the legislative branch to both curtail the chronic excesses of the zombie war on terror and bring a halt to the killings of the new, make-believe war.
Twenty-five years after 9/11, it is not clear how the use of military force against jihadis remains necessary to protect the United States from further attacks by the 9/11 perpetrators, or even who exactly the 2001 war authorization now applies to. Certainly, the Trump administration has not publicly made the case for strikes in Somalia, Nigeria, or potentially Mali—much less explained how the 2001 AUMF might authorize such actions.
If the use of force remains necessary to prevent terrorist attacks against the United States from specific groups, then Congress should revise the AUMF to narrowly tailor it to those specific threats. And if the use of force is no longer needed (as seems likely), then Congress should simply sunset or repeal this outdated 2001 war authorization.
As for the Trump administration’s maritime strikes, the necessary response from Congress is even clearer. First and foremost, Congress must end the boat strikes and head off further unauthorized strikes on land, including those associated with the recently announced “Joint Task Force Western Hemisphere.” To do so, Congress should wield the ultimate war power—the power of the purse—and impose a funding prohibition on such military actions. Secondly, to help prevent such lawless violence in the future, there is a need for robust investigations of the maritime killing spree in order to expose the process leading to the strikes and those involved.
It is well past time for reckoning with executive branch military excesses—both those stretching over decades and those unique to Trump’s second term. Ending them requires Congress to finally do its job.
