The Nuisance of Law

By Nick Catoggio

Thursday, September 04, 2025

 

By definition, a country that’s still transitioning from first-world to third-world is neither fully one nor fully the other. I was reminded of that when I ran across this dystopian sentence in the New York Times: “Pentagon officials were still working Wednesday on what legal authority they would tell the public was used to back up the extraordinary strike in international waters.”

 

The government of a third-world country doesn’t bother to offer legal justifications for its actions. The government of a first-world country doesn’t wait until after it has acted to consider legal justifications.

 

The “extraordinary strike” in this case was a missile attack by the U.S. military on a vessel in international waters in the Caribbean. If you believe the president, that vessel was carrying 11 members of the Venezuelan gang Tren de Aragua, a group designated by the State Department as a foreign terrorist organization. The boat was loaded with drugs, supposedly. Now those drugs and the alleged terrorists who trafficked them are presumably at the bottom of the sea.

 

It may be the purest demonstration of Donald Trump’s philosophy of government we’ve seen in the four-plus years he’s been in charge.

 

On the one hand, it’s another instance of the president treating a grave problem with the gravity it deserves. Illegal immigration, high crime, now the drug epidemic: America’s political establishment has been quite complacent about all of it, especially the left side of the aisle. Trump thrives by inviting voters not to tolerate a baseline level of social dysfunction as normal or acceptable. In return for Americans indulging him in his authoritarian power grabs, he’s willing to literally blow people up to address public safety crises that “the uniparty” takes for granted.

 

Bombing drug traffickers is a particularly seductive example. Nearly 25 years of the war on terror has made us all quite comfortable with raining death on foreigners whom our government assures us are bad guys. We can argue over whether narco-cartels are properly regarded as “terrorists” but there’s no disputing that their body count is much higher than al-Qaeda’s.

 

Nor is it unprecedented for our military to get rough with drug dealers. Long ago in the Before Times, when model statesman George H.W. Bush was president, the United States actually invaded a Central American country and removed its leader because he was facilitating cocaine smuggling to the north. Trump’s game of whack-a-mole with drug-running by sea is small potatoes by comparison. If you wish to take a “What’s the big deal?” line on it—and if you still identify as a Republican, you assuredly do—it isn’t difficult.

 

On the other hand.

 

Three pathologies.

 

The missile strike is a classic Trump gambit in that the reasoning behind it is sloppy at best and malicious at worst.

 

For one thing, Venezuela isn’t a major conduit of drug trafficking to the U.S., as David Smilde explains elsewhere today at The Dispatch. The idea of Tren de Aragua infiltrating our country and flooding American streets with poison is a nifty narrative for an anti-immigration president, but targeting the gang won’t put a big dent in the drug epidemic.

 

Especially if the boat we blew up wasn’t carrying any gang members—or drugs. A former U.S. official told the Times that “Tren de Aragua was not known for handling large shipments of cocaine or fentanyl” and that “it was unusual to have 11 people manning a vessel that could easily be crewed by two or three, especially since traffickers are always trying to maximize the amount of cargo space devoted to carrying drugs, not human beings.” He suspects the boat was carrying migrants, not gangsters and coke.

 

The administration couldn’t get its story straight initially on the vessel’s destination, either. “These particular drugs were probably headed to Trinidad or some other country in the Caribbean, at which point they just contribute to the instability these countries are facing,” Secretary of State Marco Rubio told reporters on Tuesday. The next day he changed his mind and claimed that the cargo was bound for the United States, aligning himself with the president.

 

As you weigh whether recklessness or malevolence better explains all of that, let me remind you that the White House has lied repeatedly in self-serving ways about Tren de Aragua this year.

 

In March it invoked the Alien Enemies Act to justify deporting its supposed members without due process, alleging that the gang is under the control of Nicolás Maduro’s government and therefore carrying out an “invasion” by a foreign state. But U.S. intelligence had already determined that wasn’t true. (The officials responsible for the analysis were promptly fired.) Undaunted, the administration accused several hundred detained immigrants of belonging to the group—in some cases based on nothing more than tattoos—and packed them onto a plane to El Salvador without bothering to double-check. Oops again.

 

Is the White House destroying people’s lives due to incompetence or because it’s overly eager to manufacture a public consensus that the president should be able to do anything he likes so long as he utters the magic words “Tren de Aragua”?

 

Another Trumpian hallmark of the missile strike is the proposition it stands for, that there’s no national problem that can’t be solved with more ruthlessness. The uniparty may have been content to have the Coast Guard interdict drug smugglers, arrest them, and confiscate their cargo, but that obviously wasn’t enough to cure America’s drug addiction. What else can the president do, then, except start summarily executing people who may or may not be guilty and trust that other drug dealers will recalculate the risk of trafficking to the U.S. accordingly?

 

Deterrence through terror has always been Trump’s answer to major social ills. In his first months as a candidate in 2015 he recommended killing jihadis’ families to make them think twice. As president he reportedly fantasized about building a moat along the border stocked with alligators, electrifying the wall, and shooting immigrants in the legs whenever they’re caught in the act of crossing over. He allegedly once congratulated Rodrigo Duterte on his notoriously bloody campaign against drug-dealing in the Philippines and told an audience on the campaign trail last year that America’s crime problem could be solved by letting police have one “real rough” hour with suspects.

 

“The word will get out” after the bloodletting is over, the president imagined, and the crime wave “will end immediately.” Deterrence through terror: That’s his approach to domestic politics and to immigration, so why wouldn’t it be his approach to drug-trafficking too?

 

On Wednesday Rubio went as far as to admit that the U.S. could have intercepted the Venezuelan ship instead of incinerating it but that doing so wouldn’t have packed the same deterrent punch, which I suppose is true in the same way that Trump’s “one rough hour” scenario is true. If you want to discourage crime, letting cops shoot suspects in the head in lieu of arresting them would do the job more efficiently. And if some of those suspects turned out not to be guilty, as perhaps the crew of the now-destroyed vessel was, even better: In a country where lethal violence is meted out arbitrarily, without the need for strong evidence of guilt, the average joe wouldn’t want to so much as sniff trouble.

 

Which brings us to the third Trumpist pathology in this episode. The law was an afterthought—literally, per the Times.

 

Saving the country.

 

The vice president was asked yesterday to specify the legal authority that entitled Trump to blow up a bunch of people in the Caribbean. The authority, he replied, is that there are “literal terrorists who are bringing deadly drugs into our country and the president of the United States ran on a promise of stopping this poison from coming into our country.”

 

He and I happened to attend the same law school, so from one alumnus to another: That’s not the correct answer, J.D. The president’s campaign pledges don’t magically acquire the force of law because a plurality of the electorate decided he’d be marginally preferable to his opponent.

 

The closest thing to an actual legal authority in this case is “something something Article II” but several experts in the law of war who’ve examined the circumstances concluded that this looks a lot more like an illegal assassination, if not outright murder, than a lawful strike on combatants in an armed conflict. Even in war, you don’t get to snuff anyone you dislike; the difference between killing someone justifiably in battle and committing a war crime is compliance with certain rules that the United States is, or is supposed to be, party to. The White House doesn’t seem to have thought much about those rules this week.

 

To start with, dubbing Tren de Aragua “terrorists” doesn’t create any talismanic authority to slaughter its members where they stand. The label has nothing to do with lethal force, in fact. As one professor of military law explained to The Atlantic, designating a group a foreign terrorist organization merely allows the government to prosecute people who provide that group with material support. If Trump wants to out-and-out kill bad guys, he needs an authorization to use military force (AUMF) from Congress.

 

Where is that authorization? Since 2001, presidents from both parties have strained the logic of the post-9/11 AUMFs against al-Qaeda and Iraq by citing them to justify attacks on adjacent jihadist threats like ISIS. No one seriously believes they can be stretched so far as to encompass drug trafficking in the Caribbean, though. Absent any new approval from Congress, letting Trump mark people for death based on an assessment of “terrorism” by his own State Department amounts to granting him the power to kill anyone whom he deems a threat.

 

That’s how we ended up with Pentagon lawyers poring over law books on Wednesday, desperately trying to find some statute that might retroactively justify blowing up 11 Venezuelans.

 

The answer to the question posed to J.D. Vance is that there is no obvious legal authority for what the president did. There’s only what we might call post-legal authority, the idea that—as Trump himself once put it—“He who saves his Country does not violate any Law.” Which, I think, cuts to the heart of the difference between conservatives and postliberals.

 

Conservatives worry about state power encroaching on individual liberty and so they condone robust legal restraints on government even if those restraints make the state less effective at solving serious problems like drug trafficking. Take Sen. Rand Paul, who’s fretted for years about a slippery slope with respect to execution-by-drone and is concerned about the lack of due process in the Venezuela strike. If Trump can assassinate suspected criminals en route to the U.S., why shouldn’t he assassinate suspected criminals inside the U.S.?

 

Postliberals don’t worry about that. Their anxiety about tyranny and liberty is situational: Whose tyranny? Whose liberty? They believe law should restrain the government when the government is working against postliberal interests and not restrain it when postliberals are in charge and using the machinery of the state to advance their interests. Law is purely a nuisance to regnant postliberalism, a hindrance to the sort of ruthless action that authoritarians supposedly have a popular mandate to take in the name of “saving the country.” All the more so when the law in question is international law, filled as it is with prohibitions on especially ruthless violence written by soft-hearted Euroweenies.

 

That’s the answer J.D. Vance wanted to give—and did give, sort of. To ask which legal authority gives Trump the power to kill Venezuelans on mere suspicion of drug trafficking is to engage in non sequitur. The president said he would save the country by preventing drugs from entering the U.S. and he’s going to do that. What does law have to do with anything?

 

The eternal crisis.

 

This is why fascists are forever screeching about “emergencies,” of course. If we expect the law to yield when the social stakes grow sufficiently high, authoritarians who resent restraints on their power have every reason to raise the stakes rhetorically.

 

Trump does this compulsively. Immigration is an invasion, trade deficits are a national security crisis, Chicago is “the worst and most dangerous city in the World,” drug dealers are “terrorists.” (The only time he’s not catastrophizing hysterically over a problem is when he’s claimed some power to manage it, at which point it instantly begins to recede.) The more urgent a particular danger to the country becomes, the less we should want to tie the president’s hands legally in doing everything he can to save it—supposedly.

 

That thinking has even bled into his legal filings. One of the arguments his administration is making to the Supreme Court in defense of his “emergency” tariffs is that the government will raise an awful lot of revenue from them. There’s no legal logic in that but there’s plenty of post-legal logic: If the president’s policy is benefiting America, why would the judicial branch let law stand in the way?

 

It’s no coincidence that as the rhetorical line blurs between social ills and national emergencies, the civic line between law enforcement and military action has blurred too. If crime is terrorism, then it stands to reason that soldiers will patrol American cities, the Navy will bomb boats that traditionally would have been stopped by the Coast Guard, and respect for suspects’ rights will recede as the government moves to neutralize “terrorist” threats expeditiously.

 

On that note, here’s a question to keep you up tonight: If the Times is correct that the Pentagon couldn’t identify a legal justification for Trump’s order to kill a bunch of people, why did it obey his order?

 

To ask that question is to invite demagoguery about not taking crime seriously or knowing “what time it is,” blah blah, but I know exactly what time it is and it’s exactly the right question for the hour. Our new government fundamentally believes that law is an obstacle to American greatness—that law, normally just a nuisance, has itself become a major problem bedeviling the country—and it intends to solve this problem too. One way is to normalize shooting first and asking questions later. That’s the significance of what just happened to that Venezuelan ship.