Holder spoke about how, when values are shared, there are great benefits of concurrent state and federal criminal jurisdiction, the “most important” one being “the ability of state and federal law enforcement officials to work together as partners in the investigation and prosecution of serious crimes.” Working together reinforces for the public the principles of equal treatment under law and that those exercising government power and force – including deadly force – must be held accountable when they don’t meet minimum standards of decency and restraint. Working together also reinforces the idea that all of us, united and regardless of the past and historical divisions from where we come, support dignity and fair treatment for everyone. Holder recounted successful civil rights enforcement partnerships of state and federal law enforcement in South Carolina, Georgia, and Indiana. And he described a Memorandum of Understanding between the National District Attorneys Association and the Department of Justice that embodied the spirit of unity and why it’s so important. He said –

The MOU is intended to foster a more cooperative approach by local, state and federal authorities in the investigation and prosecution of color of law and hate crimes cases. It requires early communication among local, state and federal prosecutors to explore the most effective way to investigate these cases and to utilize the best investigative resources or combination of resources available. There are many benefits to such an approach: it encourages the use of coordinated or joint local, state and federal investigations in those instances where coordinated or joint investigation is in the best interest of justice; it decreases time delay between local, state and federal authorities about these important cases; and it increases public confidence in the criminal justice system. It is this type of cooperative effort, endorsed by the Department of Justice and the National District Attorneys Association, that maximizes all of our law enforcement capabilities in these important cases.

From Cooperation to Disunity

Unfortunately, division is a foundational part of our country’s history, and, accordingly cooperative law enforcement is not the norm, especially around civil rights. In fact, any fair reading of American history shows that working together in the enforcement of civil rights has been the rare exception.

And now, over the last weeks and months, that division has been forcefully exploited and reasserted by the Trump Administration. There will be no cooperation, for example, between federal and Minnesota law enforcement in the investigation of the ICE agent who killed Renee Good. There will be no federal civil rights investigation at all. Given what we know already, this has led not just to outrage from many career prosecutors in the Justice Department’s Civil Rights Division and the U.S. Attorney’s Office in Minnesota, but to outright resignations.

From the time of its enactment in 1866, the Civil Rights Act, the basis for 18 U.S.C. § 242, the law under which federal authorities investigate and prosecute excessive force incidents by those acting “under color of law” has been controversial and has raised federalism and many other concerns. In years past, federal prosecution was seen by many who were dubious of civil rights laws in the first place as an encroachment on state sovereignty. A political and pragmatic compromise was forged over time, with the Justice Department adopting what it called a “backstop policy” for criminal civil rights investigations. Under the policy, when state or local authorities undertake a “good faith” investigation into an act of possible law enforcement misconduct of a hate crime, the Justice Department defers to such investigation and foregoes its own involvement. As Holder explained it to the Judiciary Committee –

. . . the Department works with state and local officials and would generally defer prosecution in the first instance to state and local law enforcement. Only in highly sensitive cases in which the federal interest in prompt federal investigation and prosecution outweighs the usual justifications of the backstop policy would the federal government take a more active role. Under this policy, we are available to aid local and state investigations as they pursue prosecutions . . . Under this policy, we are also in a position to ensure that, in the event a state cannot or will not vindicate the federal interest, we can pursue prosecutions independently.

For many, the backstop policy was at least partially a copout and a failure. Despite many heroic federal civil rights prosecutions (full disclosure: I prosecuted criminal civil rights cases in the Criminal Section of the Civil Rights Division for five and a half years), during the post-Reconstruction era, the era of Jim Crow, and even to today, many critics believe there has been insufficient federal assertion of its constitutional responsibility to oversee state and local law enforcement and ensure that the principles of the 14th Amendment – that no person should be denied life or liberty by those acting under color of law without due process of law – were upheld.

But whether federal enforcement was sufficient or not in practice, there is no denying that federalism and the basic post-Civil War constitutional structure – a system of divided and shared power between the federal and state governments – can serve as a force, albeit perhaps inadequate, pushing back against abuses of power by one part of our government or too much power accumulating in one level of it. When power is abused in federal, state, or local government, federalism provides paths for other levels of government to address the underlying problems such as civil rights deprivations, sometimes through criminal investigation and prosecution and sometimes through other means.

Many times, those paths and the pushback of one governmental entity against another lead to unsatisfying results, such us in recent years when fatal police shootings that seem to many to be excessive do not lead to convictions. But serving as a backstop and investigating allegations of misconduct, even when ultimately not fully satisfying, serves as a check. It provides, at a minimum, some affirmation of the values of justice and fairness, and as resistance to the abuse of power. It is a critical feature of our constitutional order, even when only partially successful.

State and Local Law Enforcement Authorities As the New Backstop, albeit with many challenges

Federal and state roles in the protection of civil rights have, in many ways, now reversed. Federal law enforcement is carelessly and recklessly violating rights. It is projecting both the President’s quest for power and his desire to punish those who disagree with him. At the same time, federal civil rights enforcement is being methodically eliminated. When all this happens, there is an imperative for state and local officials to serve as a new backstop; to respond and investigate allegations of federal and local misconduct.

As is true when the federal government acts as a civil rights backstop, state and local action here will be difficult and may not be wholly satisfying either, especially when reviewing federal law enforcement action. State and local prosecutors face serious constitutional and practical obstacles to bringing criminal cases against federal officials who violate state law. An important one is American federalism itself, which defines the delicate balance of federal and state authority. Fundamental to the boundaries of authority is the Supremacy Clause of Article VI. It establishes that that federal laws are the “supreme Law of the Land” and take precedence over conflicting state laws. It ensures that the national government’s legitimate powers can be exercised without interference from state governments. And it has meant that legitimate acts of federal officials cannot be prosecuted under state law. That architecture has served important values. It is why federal marshals could not be prosecuted for trespassing or other state crimes under Mississippi law for escorting James Meredith to register as the first African-American to attend the University of Mississippi. The same principal applies equally when federal officials use force, including deadly force. In 1890, in In re Neagle, 135 U.S. 1 (1890), the Supreme Court held that a federal marshal was immune from state prosecution for actions necessary to protect a Supreme Court justice’s life. The marshal shot and killed a man who attacked the justice. The Court ruled that because the shooting was within the marshal’s federal duties, he was immune from state prosecution.

But the Court also made clear that when a federal official’s actions are not “necessary and proper” to fulfilling official responsibilities, the possibility of state prosecution remains. Drawing the line between legitimate federal law enforcement use of force – necessary and proper to fulfill law enforcement responsibilities – and illegitimate and excessive use of force can be difficult. Sometimes it requires frame-by-frame analysis. It is part of finding the right balance of federalism and the rule of law, one that maintains the legitimacy and public trust in our constitutional order. It’s what makes this kind of backstop work difficult and often unsatisfying. And if recent Court decisions are any guide, we can be fairly certain that this Supreme Court will guard the constitutional boundaries surrounding the President and presidential power very carefully.

The same federal courts that have recognized that federal officials are insulated from state prosecution for the legitimate and reasonable exercise of federal law, though, have also clearly recognized that state criminal law provides an important check against the abuse of power by federal officials acting outside the scope of their authority. There is a long history of state action against federal officials who act outside their legitimate authority and violate the civil rights of those in this country. The Supreme Court has also made clear that “[a]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment.”

 In the 1879 case of Tennessee v. Davis, a federal revenue collector was charged with state murder, in an incident that occurred while enforcing federal revenue laws and seizing equipment used in illicit distilleries. The revenue collector claimed he was assaulted and fired upon by a number of armed men, and that he returned fire only in self-defense. The Supreme Court allowed the case to proceed – though, in terms of venue, for the trial to be removed to federal court under a removal statute that still exists in form today. More than a hundred years later in Mesa v. California, in 1989, the Supreme Court allowed a postal worker to be prosecuted in California state court for manslaughter after the mail truck she was driving collided with and killed a bicyclist. Also in the 1980s, in Arizona v. Manypenny, the federal courts upheld a state conviction of a border patrol agent for shooting a Mexican man.

The Manypenny case is particularly instructive.

The agent, William Manypenny, was on duty near the Arizona/Mexico border, patrolling federal land in Pima County, Ariz. Manypenny and his partner, in plain clothes, confronted three Mexican men who were traveling north. The partner ordered the men to stop. One of the men turned and ran back south toward the border. Manypenny shouted for the man to stop. When he didn’t, Manypenny fired his shotgun three times in the man’s direction, hitting him in the upper spine, severing the spinal cord and leaving him a quadriplegic. Manypenny was later indicted, under Arizona law, for assault with a deadly weapon for shooting the man. A jury convicted him, but the trial judge set aside the conviction. The State of Arizona appealed, and after the Supreme Court approved of the appellate procedure, the court of appeals held that the judge’s entry of judgment of acquittal was error and reversed it.

Throughout American history, cooperative state-federal enforcement of civil rights has been the exception rather than the rule. More often, the Justice Department faced resistance to robust civil rights enforcement by the states, and through the Civil Rights Division had to step in as the backstop to ensure a proper response to the abuse of power by law enforcement. Now, the states face resistance from the Justice Department to legitimate and robust civil rights enforcement. Occasionally in the past, state and local authorities have stepped in when federal officials, under color of their authority, committed acts beyond that authority. Such investigations and prosecutions are rare in part because state authorities must show that they are not prosecuting federal officials who are carrying out their duties in good faith but rather are prosecuting because those officials engaged in unlawful conduct under the guise of federal law enforcement.

The capacity and willingness of state and local prosecutors to act, not in contravention of legitimate federal interests, but in defense of their citizenry when federal actors exceed their legal bounds, is not only consistent with the structure of American government but vital to it. Such efforts serve to ensure that the law applies equally to all, regardless of office, and are a fundamental safeguard of public confidence in the administration of justice. It is a feature of federalism.

 The Role of Civil Society

With the dramatic expansion of ICE and the limited vetting and training of new agents being deployed around the country, oversight is critical. The actions of the Trump administration mean that such oversight is now left largely to state and local government action. But our circumstances also demand something of the rest of us. We need to support those state and local officials who are taking up this new responsibility. The Trump administration has already resisted any cooperation with state and local officials examining federal enforcement in the case of Jonathan Ross; it has refused to share information and evidence about the shooting of Good with Minnesota officials. It will also undoubtedly retaliate against those local officials who examine federal enforcement in ways that are themselves abuses of power. We cannot ask state officials to put themselves in the line of the administration’s fire if we are not prepared to back them up.

 In that vein, I recently worked with members of the American Bar Association’s Criminal Justice Section to develop a resolution that “recognizes both the necessity of protecting legitimate federal functions and the equally compelling obligation to ensure that federal authority is not abused.” It publicly supports state and local officials who initiate the kind of difficult investigations of federal law enforcement accused of abuse. As the ABA report accompanying the resolution states, “[u]pholding the rule of law and public rights sometimes requires principled action by state and local authorities, free from political or institutional pressure, to hold all officials – federal or otherwise – accountable before the law.”

This resolution encourages appropriate action by state and local prosecutors to fill any accountability gaps when federal officers act outside the limits of their lawful authority and commit crimes under state law. In so doing, it affirms a commitment to a government of laws, where checks and balances are preserved, and where no person is above accountability. It is a small gesture of support to the men and women in the offices of Attorneys General and District Attorneys across the country who will courageously step in to protect all of our rights. We need to find other ways to support them.

AGs, DAs, and other state officials also must extend their oversight and pushback to excessive force beyond just criminal investigations and prosecutions. As Samantha Trepel indicated in an earlier essay in these pages, because of the challenges of criminal prosecutions of federal officials, states should – and are – pursuing creative methods to, at the very least, document perceived abuses. Governor JB Pritzker of Illinois created the Illinois Accountability Commission, “which aims to gather evidence of potentially unlawful conduct by federal agents, to support referrals to investigative agencies,” and make recommendations for changes to existing laws to better protect state residents. Other states and cities have created online portals that residents can use to report misconduct by federal agents (e.g., Minnesota). And more can be done. It’s all part of a necessary response to an excessively aggressive federal law enforcement deployment across the country, one that threatens the civil rights of so many, and one that federalism demands the hard work of our AGs, DAs, and all of us.

The post The New Civil Rights “Backstop”: How DAs and AGs Can and Must Investigate ICE Abuses appeared first on Just Security.

The catalog below organizes our collection of articles primarily about the war into general categories to facilitate access to relevant topics for policymakers, researchers, journalists, scholars, and the public at large. The archive will be updated as new pieces are published.

We welcome readers to use this catalog to follow the unfolding situation and generate new lines of analysis. To search headlines and authors, expand one or all of the topics, as needed, and use CTRL-F on your keyboard to open the search tool. The archive also is available in reverse chronological order at the Russia-Ukraine War articles page.

The post Just Security’s Russia–Ukraine War Archive appeared first on Just Security.

Legal Background: The War Powers Resolution

The War Powers Resolution provides the statutory framework for the unilateral use of military force by a president, such as the ongoing maritime strikes and the U.S. operations in Venezuela. Congress enacted this law over President Richard Nixon’s veto in 1973 to reassert the body’s constitutional prerogatives with respect to war and peace. In essence, Congress sought to forestall any president from taking the country to war without congressional authorization or even without congressional awareness (as had allegedly been the case for aspects of the wars in South-East Asia, such as the incursion into Cambodia). Congress attempted to do this through a framework requiring transparency before forces are in harm’s way, and mechanisms for automatic termination of unilateral presidential uses of force absent specific congressional authorization. 

Reporting: To this end, Section 4(a) of the Resolution establishes reporting requirements to prevent the president from taking the country to war in secret. In the absence of a declaration of war or other statutory authorization, the executive branch is subject to multi-tiered obligations to report to Congress within 48 hours of certain activities by U.S. armed forces. 

First, under subsection 4(a)(1) the Executive must report when U.S. military forces are introduced into “hostilities” or introduced into “situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Such hostilities reports are the focus of this essay. 

Second, even if U.S. forces are not engaging in hostilities, subsection 4(a)(2) requires the Executive to report the introduction of “combat equipped” forces into a country (the executive branch defines “combat-equipped” as forces equipped with crew-served weapons such as machine guns requiring more than one person to operate and mortars). The goal of this provision is essentially to avoid putting U.S. forces into a position that could lead to imminent hostilities without congressional awareness.

Third, pursuant to subsection 4(a)(3), the president must also report a substantial enlargement of such combat equipped forces in a country where such forces are already present.

Two mechanisms to terminate unilateral deployments into hostilities or imminent hostilities: Notably, under Section 5(b) of the 1973 Resolution, the submission of a report under the first of these scenarios — introduction of U.S. forces into hostilities or situations of imminent hostilities — starts a 60-day clock for the withdrawal of U.S. armed forces from such situations unless Congress declares war or otherwise enacts specific statutory authorization for the use of force. No further action needs to be taken by Congress for the termination to become effective (though in practice, presidents have found numerous ways to try to circumvent the termination requirement or argue its inapplicability). 

When enacted, the War Powers Resolution provided a mechanism in section 5(c) for Congress to order the removal of U.S. forces from hostilities through a concurrent resolution—that is, a resolution passed by both houses of Congress but not presented to the president for his or her signature or veto. Particularly following the Supreme Court’s 1983 decision in INS v. Chadha that ruled unconstitutional the so-called legislative veto, section 5(c) is widely viewed as unconstitutional. Following Chadha, Congress enacted expedited procedures for joint resolutions requiring the removal of U.S. armed forces from hostilities, which does require presentment to the president.

As one of us previously wrote (with Stephen Pomper), one of the consequences of Chadha was to “encourage[] a lingering (and in our view incorrect) impression that other provisions of the War Powers Resolution are constitutionally infirm — an impression that the executive branch has sometimes encouraged.” It is to that issue that we now turn. 

Constitutionality of the War Powers Resolution

Although it is sometimes asserted (including recently by Vice President J.D. Vance) that every presidential administration has claimed the War Powers Resolution is unconstitutional, that claim is inaccurate. (Charlie Savage recently wrote in the New York Times about the administration’s misleading claims on this front.) 

Although it is true that prior to Chadha, the executive branch regarded the concurrent resolution mechanism for terminating introductions into hostilities as unconstitutional based on the Supreme Court’s analysis of the Presentment Clause (Article I § 7 of the Constitution), that is distinct from claims regarding the constitutionality of the resolution as a whole, or any of its other specific provisions. As the Department of Justice’s Office of Legal Counsel (OLC) noted in 1979, “the only provision that this Administration has suggested presents constitutional problems related to the right of Congress to act by concurrent resolution.” 

Under administrations of both political parties, OLC has repeatedly accepted that other provisions of the resolution are constitutional at least on their face, including the reporting requirements, 60-day clock, and the revised joint resolution mechanism for withdrawing U.S. armed forces from hostilities. Harold Hongju Koh, Legal Adviser to the Department of State during the Obama administration, testified with reference to the War Powers Resolution that “[t]he Administration recognizes that Congress has powers to regulate and terminate uses of force.”

What’s more, in practice presidents have endeavored to comply with these requirements. First, all presidents since Ford have submitted the 48-hour reports described above. Second, while presidents have certainly stretched or narrowed their interpretations of the statute’s terms to avoid the termination requirement, they have attempted to make arguments under the law for why it does not constrain their activity in a given case, rather than arguing that the law itself is unconstitutional. 

In our view, the constitutionality of the War Powers Resolution is on firm ground. Congress holds the preponderance of the war-making, and war-adjacent, powers in the Constitution. Moreover, Congress has since the founding regulated when and how the United States may use force abroad (from the late 1700s to the frameworks in place today that are the subject of this essay). In sum, both the text and historical and modern practice make the statute’s constitutionality clear. 

Multiple Hostilities (and 60-Day Clocks Running) in Latin America

The first set of hostilities involves the administration’s campaign of lethal strikes against suspected drug ferrying boats in the Caribbean and eastern Pacific—Operation Southern Spear—in which the administration claims (erroneously) that it is involved in non-international armed conflicts against an unreleased list of 24 criminal gangs and drug cartels but, paradoxically, that it is not in “hostilities’ for WPR purposes (despite submitting a report implying that it was so involved 48 hours after the first Sept. 2 strike, as required by the WPR). These hostilities appear to be ongoing following 35 strikes and over 100 people killed. On Jan. 4, Secretary of State Rubio stated that “we continue to reserve the right to take strikes against drug boats that are bringing drugs towards the United States that are being operated by transnational criminal organizations.”

The other set of hostilities involves the administration’s unlawful use of force against Venezuela—Operation Absolute Resolve—including the seizure of its president and commander in chief, Nicolás Maduro, and his wife, Cilia Flores, in a military raid. That operation took place in the context of an immense military build-up in the region, continued threats of military force, and a naval blockade against U.S. sanctioned oil shipments from the country that remains ongoing. 

Congress has already voted on a series of measures under the War Powers Resolution that would require President Trump to remove U.S. forces from hostilities related to the boat strikes as well as in or against Venezuela. Another such vote is expected this week in the Senate. 

We now turn to explaining the two sets of hostilities, how each is governed by the War Powers Resolution, and what opportunities this creates for Congress. 

The Maritime Strikes Termination Clock

Consistent with section 4(a)(1) of the War Powers Resolution, the White House reported the first maritime strike (which occurred on Sept. 2, 2025) to Congress in a Sept. 4 letter. This report triggered the start of the Resolution’s 60-day clock—which was due to expire on Nov. 3.

But as this deadline approached, the Trump administration shifted its view on whether these strikes constitute “hostilities” under the 1973 law. The head of the OLC reportedly informed a small group of lawmakers that the maritime strikes did not constitute “hostilities” despite having initially reported them under the law. 

An anonymous senior administration official told the Washington Post that the War Powers Resolution doesn’t apply to the maritime strikes because, “even at its broadest … [it] has been understood to apply to placing U.S. service-members in harm’s way.” According to this official, “[t]he operation comprises precise strikes conducted largely by unmanned aerial vehicles launched from naval vessels in international waters at distances too far away for the crews of the targeted vessels to endanger American personnel.” Thus, “the kinetic operations underway do not rise to the level of ‘hostilities,’” according to the administration.

Contrary to the administration’s arguments, the War Powers Resolution’s clock has been ticking since Sept. 4th of last year, and exceeded the 60 day deadline in early November. Based on the text, legislative history, and past executive branch practice, the better view is that airstrikes, even when U.S. armed forces are not exposed to significant risk, are hostilities under the Resolution.

As one of us (Finucane) has previously explained:

There are many flaws with the Trump administration’s reported interpretation of hostilities. As indicated in the legislative history, Congress understood the term “hostilities” to apply broadly, more broadly than “armed conflict.” The Obama administration’s prior attempt to restrictively interpret the term garnered strong bipartisan congressional opposition.

Moreover, the War Powers Resolution was enacted not only against the general backdrop of the Vietnam War, but more specifically President Nixon’s legally contested aerial bombing of Cambodia in 1973 (Operation Freedom Deal) which Congress sought to terminate through funding restrictions. As Representative Zablocki (a key architect of the War Powers Resolution) explained, “[w]hat really helped the war powers legislation was the arrogance of the executive branch in saying ‘We’ll bomb Cambodia as long as we desire, regardless of what Congress says.’” It thus beggars belief that Congress somehow intended the War Powers Resolution not to cover U.S. airstrikes.

Indeed, in October 1973, to prevent a resumption of the Cambodia aerial bombing, Congress enacted (just weeks before the War Powers Resolution itself) a funding restriction barring “the involvement of United States military forces in hostilities in or over or from off the shores of North Vietnam, South Vietnam, Laos, or Cambodia, unless specifically authorized hereafter by the Congress.” (emphasis added) On November 16th—a week after the War Powers Resolution was enacted over Nixon’s veto—the Defense Appropriations Act of 1974 was signed into law with the exact same prohibition on “hostilities” but effective upon enactment. From this context, it appears clear that Congress meant to capture aerial bombing within the scope of the term “hostilities” and thus the restrictions of the War Powers Resolution. 

Although the Trump administration’s attempt to circumvent the 60-day clock is legally unconvincing, it is hardly the first administration to resort to “creative” lawyering to continue hostilities past the deadline. In recent years, both the Obama administration (in Libya) and the Biden administration (in Yemen) relied on strained interpretations of the War Powers Resolution to continue hostilities notwithstanding the law’s restrictions and the absence of congressional authorization. 

But the Trump administration’s reported theory goes even further than the arguments from past administrations in suggesting that any standoff airstrike by the United States is outside the scope of the War Powers Resolution by claiming that the resolution is inapplicable even when the president believes the strikes are part of an ongoing armed conflict, which purportedly includes hostile actions against the United States (the notion of an armed conflict with cartels and gangs and of hostilities against the United States by such groups are both facts we dispute, but which the administration has consistently claimed). Such an interpretation would allow the United States to wage an air war indefinitely without congressional authorization. 

The Venezuela Hostilities – Operation Absolute Resolve

There is no doubt that Operation Absolute Resolve constitutes “hostilities” within the meaning of the WPR. And while WPR reports to Congress have almost never specifically stated so, this was implied in the report President Trump sent to Congress. In the context of explaining why the president needed congressional authorization to undertake the operation, one of us (Bridgeman) recently outlined (with Brian Egan and Ryan Goodman) the extensive nature of the military engagement:

On Jan. 3, President Donald Trump ordered a military operation that bombed Venezuelan air defenses and other targets in the country, seized Venezuelan president Nicolás Maduro and his wife Cilia Flores from their home, killed approximately 75 or 80 people, caused the injury of around six or seven U.S. service members, and potentially resulted in regime change Venezuela. As described in the War Powers Report subsequently provided to Congress, “the Armed Forces of the US conducted targeted and limited military strikes within the territory of the Bolivarian Republic of Venezuela.” The operation was more extensive than this brief sentence would indicate, distinguishing it from other contested unilateral uses of force that relied on unmanned “over-the-horizon” strikes (Syria in 2017 and 2018) or other types of one-off kinetic strikes (Iran in summer 2025). 

Numerous officials in the Trump administration have publicly acknowledged that this named military operation was inherently risky (calling it “very dangerous” and “audacious”). It involved approximately 200 U.S. personnel on the ground in Caracas. There were, as would be expected in an operation of this nature, fire fights between U.S. forces and opposing forces, involving both Venezuelan and Cuban military forces. What’s more, the operation took place in the context of an extensive military build-up in the region, coupled with threats against Maduro to cede power, as well as an ongoing U.S. naval blockade of Venezuelan oil tankers. (The threats and blockade continue today.)

These facts are also important for the analysis of whether the operations constituted “hostilities” for WPR purposes. Based even on OLC’s exceedingly narrow view (a view contrary to the statute’s legislative history) on what types of military engagements constitute “hostilities” for WPR purposes, all of the hallmarks are present. To focus on the most salient and long-held criterion for the executive branch as to what constitutes hostilities – actual “exchanges of fire” between U.S. and hostile forces – this operation clearly did so. Indeed, the combat resulted in dozens of fatalities amongst Venezuelan and Cuban combatants as well as Venezuelan civilians, and injuries to seven U.S. servicemembers. Reportedly, one of the U.S. helicopters that took hostile fire during the operation almost didn’t make it out of Caracas. 

The U.S. Senate also took the position that the military incursion into Venezuela constituted “hostilities.” On January 8th, the Senate voted 52-47 to advance a joint resolution to block further U.S. military action in Venezuela. That resolution specified in pertinent part that “use of military force by the United States Armed Forces within or against Venezuela constitutes the introduction of United States Armed Forces into hostilities.” 

The Venezuela Termination Clock

At a minimum, the 60-day clock started running on Sunday Jan. 5th—48 hours after the operation to capture Maduro occurred. (Depending on the facts, there may be an argument that the clock should have started earlier in connection with the drone strike on Venezuela disclosed by President Trump.) 

The Trump administration will most likely argue that there are no ongoing hostilities. Unlike the argument advanced in relation to the strikes on suspected drug trafficking vessels, which rested on the idea that the hostilities were essentially not intense enough insofar as they did not pose risks to U.S. personnel, in the Venezuela context the administration is instead likely to argue that Operation Absolute Resolve was a one-time engagement that ended as soon as US aircraft left Venezuelan airspace, taking all US personnel with them.

There are reasons to contest any such claims. 

The U.S. military incursion into Venezuela, aerial bombardment of the country, attacks on Venezuelan and Cuban forces, and seizure of the commander in chief of Venezuela’s armed forces constitutes an “international armed conflict.” In contrast to the standard for a non-international armed conflict, the standard for an international armed conflict under international law is low. As explained by the International Committee of the Red Cross in its 1952 commentary on the Geneva Conventions, “Any difference arising between two States and leading to the intervention of armed forces is an [international] armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war.”

This international armed conflict appears to be ongoing, including the prospect for further hostilities. Rather than proclaim the attack of January 2nd/3rd a “one and done affair,” President Trump has threatened another round of airstrikes, threatened the acting Venezuelan president with a fate “worse” than Maduro, and left open the possibility of U.S. “boots on the ground” in Venezuela. Notably, the War Powers report submitted by the White House to Congress in connection with the raid does not specify that U.S. military operations have concluded, as most reports of limited engagements (such as hostage recoveries, evacuations, rescue missions, and the like) have in the past. Instead, it is silent on the expected duration of the operations, although the president is statutorily required to provide that information. Moreover, U.S. armed forces remain stationed in the region and continue to support the interdiction of sanctioned oil tankers.  [Update: In a statement of administration policy opposing and threatening a veto of the Senate Venezuela resolution, the White House asserted that there were ‘’ongoing national security threats posed by the Maduro-led Cártel de los Soles and other violent drug-trafficking cartels.” This characterization by the administration reinforces the conclusion that “hostilities” remain ongoing.]

For these reasons, the 60-day clock for Operation Absolute Resolve appears to still be ticking.

How Should Congress Respond?

The Senate has now voted to discharge Senator Kaine’s joint resolution from the Senate Foreign Relations Committee, teeing up a floor vote on the resolution itself as well as potential amendments. In the House, Congressman McGovern has also introduced a concurrent resolution to remove U.S. armed forces from Venezuela without specific congressional authorization. (As a concurrent resolution would not be presented to the President for signature or veto, the Supreme Court’s decision in Chadha renders it highly unlikely it could be binding even if passed by both houses of Congress.) 

In addition, measures in both the House and Senate have been introduced to exercise Congress’s ultimate war power—the power of the purse—to block funding for U.S. military operations in or against Venezuela. At present, it is unlikely that Congress could muster the votes for these various measures to overcome presidential vetoes even if they passed both houses. 

Longer term, both sets of unauthorized hostilities and the willingness of the White House to disregard the 60-day clock with respect to the boat strikes should serve as a forceful reminder that Congress needs to reassert its constitutional prerogatives and responsibilities over the use of military force. Among other things, such congressional action should entail reforming the 1973 War Powers Resolution to close loopholes in that law and give it more teeth. Such reforms would include defining key terms, shortening the termination deadline for any unauthorized hostilities, enhancing transparency requirements, and, crucially, imposing mandatory funding cutoffs. 

Regardless of the near term prospects for meaningful legislative reform, Congress must also engage in more rigorous oversight. This should include using all of the tools at its disposal (from the nominations process to use of its subpoena power, among others) to demand that the administration answer for its unilateral uses (and abuses) of U.S. armed forces and shine a spotlight for the American people on the gravity of the situation. 

Conclusion

The U.S. Constitution assigns the power to Declare War and related war powers to the Congress for good reasons that remain as relevant today as ever. It is precisely because going to war is one of the most consequential choices a country can make that decisions on resorting to the use of force were intended to be difficult—to be made after public debate and deliberation by the people’s elected representatives. Although the President would have authority as commander in chief to repel sudden attack, other military actions would require the collective decisionmaking of the legislature. The Constitution does not authorize one person taking the country to war based solely on that individual’s policy or personal preferences.

Obviously, presidential administrations of both parties have departed from this constitutional model by using military force without congressional authorization in situations outside of immediate self-defense. But even by the standards of prior executives, the flurry of unilateral military actions by this administration is striking and deeply troubling to members of Congress and the public across ideological lines. Since returning to office, President Trump has overseen military strikes in Yemen (against the Houthis), Iran, the Caribbean, the Pacific, and Venezuela, all without any plausible congressional authorization (Nigeria might be added to that list, depending on the administration’s justification). (This is an addition to military actions in Syria, Iraq, and Somalia notionally pursuant to the 2001 Authorization for Use of Military Force.)

The last year of unauthorized, discretionary military interventions and the president’s threats of more to come—including even against a NATO ally—should spur the Article I branch of the U.S. government to reassert its constitutional prerogatives and indeed constitutional responsibilities over the use of force.

The post War Powers, Venezuela, Drug Boats, and Congress appeared first on Just Security.

The decision was not based on any assessment of the conditions on the ground. Rather, six justices construed the law to permit federalization of National Guard forces only in situations where the use of active-duty armed forces was—or, possibly, would be—insufficient. Five justices opined that the president could not make such a showing under current circumstances, while Justice Brett Kavanaugh opined in his concurrence that the president simply had not made such a showing.

Following the ruling, Trump announced on social media that he would pull federalized Guard forces out of Chicago, as well as Los Angeles and Portland, Ore. (where he had also invoked 10 U.S.C. § 12406(3)) . . . for the time being. But he also promised to “come back, perhaps in a much different and stronger form,” in the future. 

Legal scholars have observed that the Supreme Court’s decision leaves open two avenues for Trump to reattempt deployment of federal forces: He could deploy active-duty armed forces pursuant to a claim of inherent constitutional authority, or he could invoke the Insurrection Act to deploy either active-duty or federalized National Guard forces. While the majority decision does not expressly foreclose either of these options, however, its rationale does create significant new obstacles for them. 

Background

The statute that Trump invoked in California, Oregon, and Illinois allows the president to federalize National Guard forces when, inter alia, “the president is unable with the regular forces to execute the laws of the United States” (10 U.S.C. § 12406(3)). All three states filed lawsuits arguing that this statutory criterion had not been met because civilian law enforcement had been able to manage the sporadic incidents of violence accompanying protests against ICE. 

The administration argued that the president’s decision on this matter was judicially unreviewable. In the alternative, it argued that courts must extend substantial deference to the president’s judgment; that the phrase “unable . . . to execute the laws” cannot be read literally, and should instead be read to encompass significant impediments to law enforcement; and that the violent actions of some protesters were sufficient to meet this threshold.

The rulings of the courts in all three states focused largely on these questions. No court agreed with the administration that the president’s invocation of the statute was unreviewable. All three district courts held, as a factual matter, that the president was able to execute the laws without resort to the military. But the conclusions of the district courts in California and Oregon were rejected by appellate panels in the Ninth Circuit, on the ground that the district judges had not given the president sufficient deference in his assessment of the facts. The Seventh Circuit, by contrast, found no “clear error” in the district judge’s factual findings.

Throughout these lower court proceedings, the legal question that would ultimately dominate the Supreme Court’s ruling arose in only one place: the district court’s ruling in the Illinois litigation. The parties had assumed that the term “regular forces” in 10 U.S.C. § 12406(3) referred to civilian law enforcement. Judge April Perry, however, closely examined the legislative history of the statute and concluded that the term referred to the active-duty armed forces. She further determined that 10 U.S.C. § 12406(3) did not itself authorize the deployment of the active-duty military. In the absence of statutory authority, the president could deploy troops domestically only if “the civil power has failed,” and the evidence in the record did not show any such failure. 

On appeal, the Seventh Circuit did not engage in the “thorny and complex” question of whether “regular forces” refers to civilian officials or active-duty armed forces. The panel found that 10 U.S.C. § 12406(3)’s condition for federalization was not met under either interpretation, as there was “insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws.” And in the briefs filed with the Supreme Court, both parties continued to assume that “regular forces” meant civilian law enforcement. 

After Georgetown Law professor Marty Lederman filed an amicus brief providing strong support for the district court’s interpretation, however, the Supreme Court requested additional briefing on this question from the parties. As the weeks went by without a ruling, it became clear that the Court was wrestling with legal questions far beyond the more straightforward (albeit weighty) issues of how much deference to extend to the president and whether the facts supported his assessment under the appropriate standard of review.

The Supreme Court’s Majority Ruling

The Supreme Court denied Trump’s application to stay the injunction in Illinois by a vote of 6-3. There were four separate opinions: the opinion of the Court on behalf of Justices John Roberts, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson; a concurring opinion filed by Justice Kavanaugh; a dissent filed by Justices Samuel Alito and Clarence Thomas; and a separate dissent by Justice Neil Gorsuch. 

The six justices in the majority agreed with the district court and Prof. Lederman that the term “regular forces” means the active-duty armed forces. There is, indeed, overwhelming support for this interpretation in the legislative history and contemporaneous historical documents. To be sure, this interpretation leads to a counterintuitive result: In addressing domestic disturbances, the president (at least under 10 U.S.C. § 12406(3)) must turn first to the professional, full-time armed forces, rather than summoning the local, part-time “citizen soldiers” of the National Guard. In modern times, this feels like using a Howitzer when a pistol would suffice. As Prof. Lederman pointed out, however, this order of operations made more sense in 1908, when the statute was enacted. At the time, the state militia were perceived (in the words of a leading treatise) to be “inefficient, ill led, ill equipped, and undisciplined,” and their deployment “invariably” led to “bloodshed and casualties resulted.” By contrast, the active-duty armed forces “were believed inherently nonpartisan, more reliable, and more efficient.” 

In his concurrence, Justice Kavanaugh noted that, “[o]n the current record . . . it does not appear that the President has yet made the statutorily required determination that he is ‘unable’ with the U. S. military, as distinct from federal civilian law enforcement officers, to ensure the execution of federal law in Illinois.” Justice Kavanaugh would have denied the stay application on that basis alone; he saw no need to proceed any further. Of course, Trump could easily cure that procedural defect, thus restarting the entire process. 

Rather than invite such delay, the five other justices in the majority squarely addressed whether Trump was “unable” to execute the laws using active-duty armed forces. As a threshold matter, they determined that, “[b]ecause the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws.” This is a crucial point, as the administration had argued that a lack of legal authority to deploy the active-duty military would itself render the president “unable with the regular forces to execute the laws.” 

The five justices then observed that the Posse Comitatus Act (PCA) prohibits using the active-duty military to execute the laws absent an express statutory or constitutional exception. Trump, they noted, had not invoked a statutory exception that would permit deployment of active-duty troops. (The opinion does not explicitly reference the Insurrection Act, but that is presumably what the justices had in mind.) The only authority the administration invoked that would permit such deployment was an “inherent constitutional authority that, according to the Government, allows [the president] to use the military to protect federal personnel and property.” 

The administration did not argue that this claimed constitutional authority constitutes an exception to the PCA that allows federal armed forces to execute the law. After all, an “inherent” constitutional power cannot be an “express” exception, as required by the PCA. (Indeed, the PCA’s legislative history suggests that there are no constitutional exceptions.) Rather, relying on a Department of Justice opinion from the Nixon era, the administration argued that protecting federal property, personnel, and functions does not constitute “executing the laws,” and so the PCA simply doesn’t apply. 

The five-justice majority, however, refused to let the administration have it both ways. If such protective functions do not constitute “executing the laws,” the majority reasoned, then National Guard forces cannot be federalized and deployed to perform such functions under a statute (10 U.S.C. § 12406(3)) that authorizes deployment for the purpose of “executing the laws of the United States.” In other words, either the PCA applies and would presumably bar deployment of active-duty troops, or it doesn’t apply—and, for the same reason, neither does 10 U.S.C. § 12406(3). 

What Options Might (or Might Not) Remain for the Trump Administration

Deployment of Active-Duty Armed Forces Under Claimed Constitutional Authority 

In theory, the majority decision does not squarely foreclose the deployment of active-duty troops under a claim of inherent constitutional authority to protect federal personnel and property, divorced from any reliance on 10 U.S.C. § 12406(3). However, the majority’s reasoning—and the administration’s own representations in the litigation—would pose significant barriers to this approach. 

Significantly, the majority did not recognize that the president actually has inherent constitutional authority to deploy federal troops to protect federal property, personnel, and functions. In his “outstanding definitive treatment of the issue” (as described by Jack Goldsmith), Professor Chris Mirasola has made a strong case that there is no such inherent power. And even if one existed, Prof. Mirasola explains that it has been displaced by a comprehensive statutory framework vesting protective responsibilities in multiple civilian agencies and limiting military support for civilian government. 

The majority’s opinion provides yet another reason to reject the executive branch’s claim of inherent authority. The administration asserts that this authority derives from the Take Care Clause, under which the president “shall take Care that the Laws be faithfully executed.” But the administration has also argued that federal protective functions do not constitute “executing the law.” If that is correct, the president cannot rely on the Take Care Clause for the same reason the majority ruled that he could not rely on 10 U.S.C. § 12406(3): he cannot invoke an authority to execute the law as a basis for deploying troops to do something that is not executing the law.

As noted above, the majority did not resolve whether deploying troops to protect federal property, personnel, and functions constitutes executing the law. In fact, the actions National Guard forces were authorized to perform in California, Oregon, and Illinois—actions such as security patrols, crowd control, and traffic control—would clearly constitute “executing the laws” under the PCA as interpreted by the courts. The administration, however, is unlikely to reverse its position on this question. Even if doing so would remove one hurdle to relying on the Take Care Clause (many others still remain), it would leave the administration without any serious way around the PCA.

On this point, Justices Alito and Thomas—who accept virtually every one of the administration’s arguments in their dissent—make a basic error. They express incredulity that “the Posse Comitatus Act somehow limit[s] a President’s inherent constitutional authority” (an authority that they wholeheartedly embrace). But the seminal case of Youngstown Sheet & Tube Co. v. Sawyer establishes that Congress may limit a president’s constitutional authority as long as Congress is acting within its own constitutional authority. As Prof. Mirasola has recounted, Congress plainly has authority to enact legislation regarding the protection of federal property, personnel, and functions, and it has done so—uncontroversially—through an extensive set of statutes.

Deployment of active-duty troops would face another barrier, this one political as much as legal. In its briefing before the Supreme Court, the administration argued that, while it had legal authority to deploy active-duty troops, it was “unable,” for purposes of 10 U.S.C. § 12406(3), to execute the laws in Chicago using those troops. Its reasoning is remarkable and merits reproducing in full (with internal citations deleted): 

Here, the President could reasonably determine that using the standing military rather than the National Guard to protect DHS personnel and property in Illinois would significantly impede execution of the federal immigration laws because the standing military is less well suited than the National Guard to perform such protective functions on the streets of American cities. After all, the standing military’s primary function is to win wars by deploying lethal force against foreign enemies, whereas the National Guard traditionally helps to keep the peace among the citizenry during domestic disturbances. In fact, one of respondents’ own witnesses, a retired Army general, stated that soldiers in the standing army have “an aggressive mindset” because their “mission” is to “destroy the enemy,” not “try to prevent confrontation and reduce the use of lethal force.” Likewise, given the strident opposition of state and local political leaders, who are actively campaigning for DHS to leave Illinois and have compared federal agents to roving bands of violent criminals and Nazi troopers, the President could reasonably have determined that deploying the standing military would result in even more strident resistance, resulting in even more “tepid” support from state and local police. Similarly, the nature of the violent opposition encountered may have led the President to conclude that the National Guard, not the standing military, is uniquely adapted to achieve the protective mission. As violent mobs confronted ICE agents in Chicago, leading them to fear for their lives on a daily basis, the President could reasonably have determined that the members of the National Guard—with their greater local knowledge, ties to the community, and domestic focus—would be more effective than active-duty soldiers in addressing those threats.

That is a stunning concession. Not only would active-duty troops be less effective (according to the administration) in providing protective functions; they are so poorly suited to such a mission that their deployment would “significantly impede execution of the federal immigration laws.” It is difficult to see how the administration could justify deploying active-duty armed forces after such a representation. At a minimum, any such action would be even more politically fraught than it would otherwise have been.

Invocation of the Insurrection Act 

The majority opinion does not address the Insurrection Act, merely noting that Trump had invoked no statutory authority to deploy active-duty troops. Trump thus retains this option, at least in theory. But here, too, the majority opinion creates a potential obstacle.

Of course, the initial question would be whether an Insurrection Act invocation is subject to any judicial review (the administration argues that it is not). The majority opinion sheds no light on whether courts could review the president’s assessment of the facts and, if so, under what standard. However, the majority’s willingness to construe the term “regular forces” strongly suggests that the Court would find no impediment to courts construing the terms of the Insurrection Act.

The Insurrection Act allows the president to deploy active-duty troops or federalized National Guard forces under circumstances set forth in three separate provisions. The first of these provisions authorizes deployment when a state requests assistance to suppress an insurrection against the state’s government. That provision clearly would not apply in California, Oregon, or Illinois. 

The second and third provisions do not require an insurrection or a state request for assistance. However, while they are less direct and succinct on this point than 10 U.S.C. § 12406(3), they both contain language indicating that the purpose of any deployment under the statute is to enable execution of the law. The second provision reads:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion [emphasis added].

Similarly, the third provision provides that the president may deploy troops to suppress an “insurrection, domestic violence, unlawful combination, or conspiracy,” but only if the circumstance in question either (1) “hinders the execution of the laws of that State, and of the United States within the State” in a way that leads to civil rights deprivations, or (2) “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws” (emphasis added).

Both provisions thus frame deployment as a means to execute the law in the face of obstructions to such execution. Yet the administration, in seeking to insulate its claim of inherent constitutional authority from the PCA, has insisted that protecting federal property, personnel, and functions is not executing the law. 

In theory, the administration could safely abandon that position when invoking the Insurrection Act, as the statute is widely understood to provide an exception to the PCA. In practice, though, it would be extremely awkward for the administration to perform such a complete reversal of its own position—and the longstanding position of the Department of Justice—before the courts. Moreover, it would undermine any concurrent or future attempts to rely on the claim of inherent constitutional authority. 

The administration would no doubt argue that protective functions can be in service of executing the law even if they are not, themselves, law execution. But that same logic would apply in the context of 10 U.S.C. § 12406, which—like the Insurrection Act—references execution of the laws in describing the problem deployment is meant to solve, not the actions troops may take. The majority’s opinion makes clear that if the goal of deployment under the statute is the execution of the law, the statute does not authorize deployment for non-law-execution functions. Accordingly, if the administration sticks to the legal fiction that protective functions are not executing the law, the Court could well find that the Insurrection Act does not provide authority for them. 

***

The majority opinion thus not only forecloses Trump’s reliance on 10 U.S.C. § 12406; it poses significant challenges for any future attempt to deploy active-duty troops under a claim of inherent constitutional authority or to invoke the Insurrection Act for the purpose of protecting federal property, personnel, and functions. And Justice Gorsuch’s dissent suggests a potentially even greater hurdle for the administration. Even though Justice Gorsuch would have granted the stay on the limited record before the Court, he emphasized the need for further briefing on the “sensitive and gravely consequential questions concerning what roles the National Guard and U.S. military may play in domestic law enforcement.” In particular, he posed a question that went beyond even the plaintiffs’ presentation of the issues: “When, if ever, may the federal government deploy the professional military for domestic law enforcement purposes consistent with the Constitution?”

For more than two centuries, the Court has managed to avoid confronting that question. If Trump continues to abuse the military to police protests in U.S. cities, the Court might finally be induced to answer it.

The post <i>Trump v. Illinois</i>: A Narrow Supreme Court Decision with Broad Implications appeared first on Just Security.

Originally published Jan. 21, 2025, and frequently updated.

A. Resources

Tracker: Legal Challenges to Trump Administration Actions 

B. “What Just Happened” Series

Mark Nevitt, Trump, the National Guard, and the District of Columbia: What You Need to Know (Aug. 18, 2025)

Kathleen Claussen, What Just Happened: The Tariff Litigation Advances (Jun. 4, 2025)

Chiraag Bains, What Just Happened: The Trump Administration’s Dismissal of Voting Rights Lawsuits (May 27, 2025)

Dani Schulkin, Tess Bridgeman and Andrew Miller, What Just Happened: The Trump Administration’s Reorganization of the State Department – and How We Got Here (Apr. 22, 2025)

Stefanie Feldman, What Just Happened: The Trump Administration Repealed Zero Tolerance Policy for Rogue Gun Dealers (Apr. 15, 2025)

Kathleen Claussen, What Just Happened: The Trump Administration’s Latest Moves on Tariffs (Apr. 3, 2025)

Ahilan Arulanantham and Adam Cox, Explainer on First Amendment and Other Legal Issues in Deportation of Pro-Palestinian Student Activist(s) (Mar. 12, 2025)

Brett Holmgren, What Just Happened: Security and Foreign Policy Implications of Pausing Intelligence Sharing with Ukraine (Mar. 6, 2025)

Nicholas Bednar, What Just Happened: Musk-OPM Send Email to Federal Employees Asking for Five Accomplishments (Feb. 22, 2025)

Roderick M. Hills, What Just Happened: Purges at the DOJ and FBI – How Do and Don’t the Civil Service Laws Apply (Feb. 14, 2025)

Alex Finley, What Just Happened: Security Implications of Trump’s Efforts to Trim the CIA Workforce (Feb. 7, 2025)

Jonathan Hafetz and Rebecca Ingber, What Just Happened: At Guantanamo’s Migrant Operation Center (Feb. 6, 2025)

Kathleen Claussen, What Just Happened: New Tariffs on Products from Mexico, Canada, and China (Feb. 5, 2025)

Tess Bridgeman, What May Be About to Happen: Can the President Dissolve USAID by Executive Order? (Feb. 1, 2025)

Brad Brooks-Rubin, What Just Happened: Trump’s Termination of West Bank Settler Sanctions (Jan. 30, 2025)

William Banks, What Just Happened: The Framing of a Migration “Invasion” and the Use of Military Authorities (Jan. 29, 2025)

Ilya Somin, What Just Happened: The “Invasion” Executive Order and Its Dangerous Implications (Jan. 28, 2025)

Tom Ellison, What Just Happened: Trump’s Executive Actions on Environment and Implications for US Climate Security (Jan. 24, 2025)

Ahilan Arulanantham, What Just Happened: Sanctuary Policies and the DOJ Memo’s Empty Threat of Criminal Liability (Jan. 23, 2025)

Andrew Weissmann, What Just Happened: What Trump’s Hobbling Privacy Oversight Board Portends for Exercise of Surveillance Powers (Jan. 22, 2025)

Justin Hendrix, What Just Happened: Trump’s Announcement of the Stargate AI Infrastructure Project (Jan. 22, 2025)

Tom Joscelyn, What Just Happened: Trump’s January 6 Pardons and Assaults on Law Enforcement Officers By The Numbers (Jan. 22, 2025) 

Mark Nevitt, What Just Happened: Unpacking Exec Order on National Emergency at the Southern Border (Jan. 21, 2025)

Tess Bridgeman and Rebecca Hamilton, What Just Happened: With ICC Sanctions (Jan. 21, 2025)

Sue Biniaz, What Just Happened: Withdrawing from Paris and other International Environmental Agreement Actions (Jan. 21, 2025)

C. Analysis and Perspectives

Elizabeth Goitein, Trump v. Illinois: A Narrow Supreme Court Decision with Broad Implications (Jan. 9, 2026)

Harold Hongju Koh, Bruce Swartz, Madeline Babin, Saavni Desai, Samantha Kiernan, Ananya Agustin Malhotra, Pete Nelson, Jake Reagan, Summia Tora and Julian Watrous, A SCOTUS Bench Memo for the Trump Tariff Case: Separation of Powers, Delegation, Emergencies, and Pretext (Nov. 3, 2025)

Kelsey Merrick, The Use of Tariffs to Raise Revenue is a Choice for Congress, not the President (Nov. 3, 2025)

Thomas E. Brzozowski, How Designating Antifa as a Foreign Terrorist Organization Could Threaten Civil Liberties (Oct. 27, 2025)

Cathy Buerger, Repression as Rescue: The Authoritarian Logic of Trump’s Early Executive Orders (Sept. 25, 2025)

Himamauli Das, Rethinking IEEPA Accountability and Oversight (Sept. 18, 2025)

Conner Bender, America’s Missile Shield Raises Legal and Cybersecurity Concerns (Aug. 27, 2025)

Devika Hovell, Raising the Cost of U.S. Coercion Against the ICC (Aug. 26, 2025)

Jordan Ascher, The APA Authorizes “Universal” Stays of Agency Action Under 5 U.S.C. § 705 (Aug. 22, 2025)

Andrew Miller and Kelly L. Razzouk, Save the PMF Program or Risk Losing a Generation of Public Servants (Aug. 1, 2025)

Michael Schiffer, Congress Shrinking from the World: the Constitution’s Article I in the Shadow of Trump 2.0 (July 23, 2025)

Ryan Goodman, Understanding DHS’s and ICE’s New Powers in Comparative Perspective (July 21, 2025)

Samuel Estreicher and Andrew Babbitt, Court of International Trade’s Flawed Ruling in Striking Down Trump’s Tariffs (July 14, 2025)

Lisa Larrimore Ouellette, The Trump Administration’s Multi-Front Assault on Federal Research Funding (July 9, 2025)

Bruce Swartz, Will to Resist: What Dartmouth Teaches Harvard About Protecting American Freedom (July 7, 2025)

John Lewis and Jordan Ascher, Pathways to “Universal” Relief after Trump v. CASA (July 3, 2025)

Harold Hongju Koh, Alan Charles Raul and Fred Halbhuber, After CASA: The Administrative Procedure Act Option for Challenging the Birthright Citizenship and Other Illegal Executive Actions (June 30, 2025)

Rebecca Hamilton, The Trump Administration’s Use of State Power: Keeping Track of the Big Picture (updated June 30, 2025)

Ilya Somin, Nondelegation and Major Questions Doctrines Can Constrain Power Grabs by Presidents of Both Parties (June 26, 2025)

Elizabeth Goitein, Federal Troops in Drug Raids Outside of Los Angeles: An Alarming Escalation (June 25, 2025)

Ryan Goodman and Steve Vladeck, The Posse Comitatus Act Meets the President’s “Protective Powers”: What’s Next in Newsom v. Trump  (June 20, 2025)

Adam Grogg and John Lewis, The Legal Defects in the Trump Administration’s Attempts to Deregulate Without Notice and Comment (Jun. 17, 2025)

Rachel Levinson-Waldman and Melanie Geller, How DHS’s New Social Media Vetting Policies Threaten Free Speech (Jun. 17, 2025)

Cathy Buerger, Unequal Before the Law: How Trump’s Death Penalty Order Codifies Dangerous Speech (Jun. 6, 2025)

Suzanne Summerlin, Too Big to Be Lawful: A Federal Court Halts Mass Layoffs Across the Civil Service (Jun. 3, 2025)

Kristin A. Collins, Gerald Neuman and Rachel E. Rosenbloom, Another Reason Trump’s Birthright Citizenship Order is Unlawful (May 15, 2025)

Mark Nevitt, The New “National Defense Area” at the Southern Border: What You Need to Know (Apr. 29, 2025)

Harold Hongju Koh, Fred Halbhuber and Inbar Pe’er, No, the President Cannot Enforce the Law-Firm Deals (Apr. 28, 2025)

Paul M. Barrett, Justice Department Fails to Address Central Point in VOA Case (Apr. 24, 2025)

Ahilan Arulanantham, Deportation to CECOT: The Constitutional Prohibition on Punishment Without Charge or Trial (Apr. 23, 2025)

Aadhithi Padmanabhan, The Fox TV Problem with Deporting International Students (Apr. 21, 2025)

John Mikhail, Birthright Citizenship and DOJ’s Misuse of History in Its Appellate Briefs (Apr. 18, 2025)

Paul M. Barrett, Unpacking the Voice of America Litigation (Apr. 10, 2025)

Harold Hongju Koh, Fred Halbhuber and Inbar Pe’er, No, the President Cannot Issue Bills of Attainder (Apr. 9, 2025)

Francisco Bencosme and Michael Schiffer, America’s Absence in Myanmar’s Early Earthquake Response: A Moral and Strategic Failure (Apr. 4, 2025)

Marty Lederman, Remarkable Things in the Government’s Alien Enemies Act Briefs to the Supreme Court (Apr. 3, 2025)

Stephanie Psaki and Beth Cameron, Dropping U.S. Biodefenses: Why Cuts to Federal Health Agencies Make Americans Less Safe (Apr. 3, 2025)

Edgar Chen and Chris M. Kwok, The Trump Administration’s 14th Amendment Retcon: ‘Wong Kim Ark’ Does Not Limit Birthright Citizenship (Mar. 28, 2025)

Mary B. McCord, Dissecting the Trump Administration’s Strategy for Defying Court Orders (Mar. 25, 2025)

Rebecca Hamilton, The Imperative of Solidarity in Response to Assaults on Legal Services, Universities, and Independent Media (Mar. 24, 2025)

Andrew Weissmann, The New “Blacklists” Work When Law Firms Stay Silent (Mar. 24, 2025)

Katherine Yon Ebright, The Courts Can Stop Abuse of the Alien Enemies Act – The Political Question Doctrine is No Bar (Mar. 20, 2025)

Rebecca Ingber and Scott Roehm, The Trump Administration’s Recent Removals to El Salvador Violate the Prohibition on Transfer to Torture (Mar. 20, 2025)

Mark Pomar, Trump Move to Eliminate VOA, RFE/RL Ignores Lessons of Global Power (Mar. 20, 2025)

Jean Garner, Journalists Who Took Risks for US-Funded Broadcasters Threatened Anew by Trump Shutdown (Mar. 18, 2025)

Ambassador Daniel Fried, The US Government’s Self-Harm in Killing Radio Free Europe/Radio Liberty (Mar. 17, 2025)

Faiza Patel, U.S. AI-Driven “Catch and Revoke” Initiative Threatens First Amendment Rights (Mar. 18, 2025)

Steve Vladeck, 5 Big Questions in the Alien Enemies Act Litigation (Mar. 16, 2025)

Noor Hamadeh and David McKean, Suspension of FCPA Enforcement Is Bad for U.S. and Global Business (Mar. 13, 2025)

Brian O’Neill, The President’s Declassification Power is a Double-Edged Sword (Feb. 28, 2025)

Michael Schiffer and Anka Lee, Trump’s China Tariff Now Treats Hong Kong the Same as the Mainland, a First in US Policy (Feb. 27, 2025)

Bill Frelick, The Racial Twist in Trump’s Cutoff of Refugee Admissions (Feb. 27, 2025)

Daniel Jacobson, The Trump Administration Cannot Use Award Terms and Conditions to Impound Funds (Feb. 24, 2025)

Mark Nevitt, How the Pentagon Personnel Firings Threaten Our Apolitical Military (Feb. 24, 2025)

Brian Finucane, U.S. Military Action in Mexico: Almost Certainly Illegal, Definitely Counterproductive (Feb. 20, 2025)

Tobias Barrington Wolff, The Attempt to Purge Trans Members from the Armed Services (Feb. 19, 2025)

Elizabeth Goitein and Katherine Yon Ebright, Trump’s Doubly Flawed “Invasion” Theory (Feb. 19, 2025)

Seth Binder, Sheridan Cole, and Haydn Welch, The Disastrous Costs of the Foreign Foreign Aid Freeze on US Interests in the Middle East and North Africa (Feb. 14, 2025)

Laura Booth, Can the President Dismantle the Department of Education by Executive Order? (Feb. 14, 2025)

Scott Busby, Freezing Support to Democracy and Human Rights Activists Undermines US Interests (Feb. 13, 2025)

Laura Thornton, Supporting Freedom and a Foreign Aid Freeze are Incompatible – But Perhaps the Point? A Case Study (Feb. 13, 2025)

Donell Harvin, The Need for Course Correction: The Risks of Treating Drug Cartels as Terrorist Threats (Feb. 12, 2025)

Winona Xu, As Sexual Violence Surges in Goma, US Aid Remains Crucial (Feb. 12, 2025)

16 US Human Rights Experts, Current and Former Members of UN Bodies, “The Trump Administration’s Attacks on International Law and Institutions”: Public Statement of American Human Rights Experts, Current and Former Members of UN Bodies (Feb. 10, 2025)

Simon Lomax, Greg Clough, Morgan Bazilian, Restarting US LNG Permitting Brings Geopolitical Benefits and the Potential for Climate Progress (Feb. 10, 2025)

Rebecca Hamilton, Connecting the Dots: Trump’s Tightening Grip on Press Freedom (Feb. 6, 2025)

Rachel Levinson-Waldman, The Dangerous Sweep of Trump’s Plan to Designate Cartels as Terrorist Organizations (Feb. 5, 2025)

Marty Lederman, The Most Indefensible Aspects of DOJ’s Briefs in the Birthright Citizenship Cases (Feb. 4, 2025)

Suzanne Summerlin, Federal Employee Rights: What Probationary Employees Need to Know (Jan. 31, 2025)

Faiza Patel, Trump’s Executive Order on Foreign Terrorists: Implications for the Rights of Non-Citizens (Jan. 31, 2025)

Sara Zdeb, The Real Reason Trump’s Purge of Career DOJ Officials Should Alarm You (Jan. 30, 2025)

Suzanne Summerlin, Beware the “Deferred Resignation” Offer: A Legally Dubious Proposal for Federal Employees (Jan. 29, 2025)

Stuart Gerson, Understanding Trump’s Choice for FBI Leadership in Light of the “Weaponization of the Federal Government” Executive Order (Jan. 29, 2025)

Adam Cox and Trevor Morrison, Trump’s Dictatorial Theory of Presidential Power – What the Executive Orders, in the Aggregate, Tell Us (Jan. 28, 2025)

Ambassador Donald Steinberg, `Elections Have Consequences’: Trump and Rubio’s Foreign Aid Halt Will Hit the World’s Most Vulnerable (Jan. 28, 2025)

Dafna H. Rand, Stopped Security Assistance: From Counter-Narcotics to Combating Human Trafficking Programs (Jan. 28, 2025)

Andrew Weissman, Why has the Trump Justice Department Not Moved to Dismiss the Case Against Trump’s Co-Defendants in the FLA Classified Documents Case? (Jan. 28, 2025)

Michael Schiffer, Stop-Work Order on US Foreign Aid Puts China First and America Last (Jan. 27, 2025)

Ambassador (Ret.) Dennis Jett, Deprofessionalizing the State Department Is a Threat to National Security (Jan. 24, 2025)

Jean Galbraith, The Legal Problem with Trump’s WHO Order: The US Cannot Withdraw Until It Pays Its Dues (Jan. 23, 2025)

Alex Abdo, A Free Speech View on the “Free Speech” Executive Order (Jan. 21, 2025)

Xiangnong (George) Wang, President Trump’s Attempt to “Save” TikTok is a Power-Grab that Subverts Free Speech (Jan. 21, 2025)

“What Just Happened” Podcast Series

David Aaron, Brian Netter and Mark Nevitt, Federalization of DC Law Enforcement, Legal Authorities and Updates (Aug. 20, 2025)

David Aaron, Carrie Cordero and Donell Harvin, Federalization of Law Enforcement in Washington DC (Aug. 14, 2025)

David Aaron and Steven Cash, The Budget Bill and the Future of DHS and ICE (July 18, 2025)

Chiraag Bains, Dani Schulkin and Maya Nir, Dismissal of Voting Rights Lawsuits (June 2, 2025)

Ambassador Daniel Fried, Dafna H. Rand, Michael Schiffer, Michael Hanna, Rachel Goldbrenner and Maya Nir What’s Next for U.S. Diplomacy and Foreign Assistance (May 19, 2025)

Ryan Goodman, Tom Joscelyn, Mary B. McCord, Paras Shah and Clara Apt, Politicization and Weaponization of the Justice Department in the Second Trump Administration (Mar. 6, 2025)

David Aaron, Kevin Carroll, Paras Shah and Clara Apt, CIA Officers’ Lawsuit at Intersection of DEI and National Security (Mar. 4, 2025)

David Aaron, Tess Bridgeman and Suzanne Summerlin, Understanding Federal Employee Rights (Feb. 18, 2025)

David Aaron, Tess Bridgeman, Ryan Goodman and Mark Nevitt, Potential U.S. Military Domestic Deployment for Immigration Enforcement (Jan. 28, 2025)

Steve Vladeck, David Aaron, Tess Bridgeman and Ryan Goodman, Trump’s Immigration Executive Orders (Jan. 22, 2025)

IMAGE: President Donald Trump signs executive orders in the Oval Office on January 20, 2025 in Washington, DC. Trump takes office for his second term as the 47th president of the United States. (Photo by Anna Moneymaker/Getty Images)

The post Collection: Just Security’s Coverage of Trump Administration Executive Actions appeared first on Just Security.

Tensions between the exercise of power and its oversight exist in every administration. What sets the current moment apart is the scale and coordination of changes that undermine the systems meant to detect, deter, and document abuse of power. This tracker includes, for example, firing inspectors general and independent agency heads, pausing or narrowing enforcement of the Foreign Corrupt Practices Act, disbanding key investigative and prosecutive units, and asserting greater presidential control over independent agencies—moves that significantly reduce internal accountability mechanisms and shift power toward political appointees.

While some of these changes may reflect real reform goals, taken cumulatively, they change not just how – but whether – use of power is scrutinized and constrained, and, ultimately, whether it is exercised in the public interest. 

Each entry below includes a date, short description, and additional context of why the change matters. Key topics include:

This is a regularly updated document. If we’ve missed something, let us know at LTE@justsecurity.org. You can find more about our overall approach to the tracker and our corresponding series here.

The post The Anti-Corruption Tracker: Mapping the Erosion of Oversight and Accountability appeared first on Just Security.

The fatal Minneapolis shooting is among the most serious in a series of incidents over recent months involving federal immigration agents’ use of force. Videos have documented agents firing pepper balls at clergy, shooting rubber bullets at journalists, and deploying tear gas against protesters. Many of these incidents raise questions about whether agents used excessive force in violation of the Fourth Amendment and federal criminal law. Yet, the Minnesota incident is only the first where the FBI has indicated it is investigating, and so far, DOJ has announced no criminal charges related to any such incident. While the current investigation is an important step, it is far from sufficient.

Private plaintiffs are challenging the legality of many DHS tactics in court. The Department of Justice (DOJ), for its part, has remained conspicuously silent through months of these tactics. This silence is a dangerous abdication of DOJ’s authority and responsibility. Under 18 U.S.C. § 242, which makes it a crime for any government official to willfully deprive someone of their constitutional rights, DOJ can and should investigate and, where appropriate, charge federal agents who use excessive force.

A Pattern of Force Raising Constitutional Questions

Reports of aggressive, violent, and potentially unlawful tactics by some federal agents have followed each surge of officers arriving in a new city to conduct the administration’s immigration enforcement operations. These have included a military-style, nighttime raid on sleeping families at an apartment complex, the firing of tear gas canisters, rubber bullets, and pepper balls at non-violent protestors, and widespread racial profiling followed by stops and detentions without reasonable suspicion or warrants. State and local officials have decried the unreasonable uses of force in court and in public statements, and at least two Senators have publicly called on DOJ to investigate. Nevertheless, the President and Department of Homeland Security leadership have repeatedly defended their tactics.

Traditionally, the DOJ—in any administration—would seek accountability for unlawful, excessively violent tactics by law enforcement officers, by charging them with violating people’s constitutional rights. However, the DOJ has not announced any charges relating to federal immigration enforcement actions, nor (before Wednesday) had it indicated it had even taken notice.

This is not surprising. By now, it is clear to those paying attention that the DOJ is acting as the administration’s enforcer, prioritizing politicized prosecutions against Trump’s perceived enemies, rather than exercising its independent judgment. And while public attention, understandably, has focused on those high-profile questionable prosecutions, DOJ’s omissions—the cases it is choosing not to pursue—also deserve scrutiny. The agency’s silence about violent tactics by federal agents suggests an apparent abandonment of its criminal civil rights enforcement authority, a silence that is destructive to the rule of law itself.

DOJ’s failure to act signals a troubling abdication of its authority to enforce the constitutional limits of federal agents’ coercive power. The federal statute that is most clearly implicated by aggressive ICE and CBP tactics, 18 U.S.C. § 242, is a Reconstruction-era law that makes it a criminal offense for federal, state, or local government officials to willfully deprive a person of their constitutional rights. Congress passed the statute as part of a series of laws intended to protect the rights of Black Americans following the Civil War. The statute was among those aimed at enforcing the protections of the newly enacted Thirteenth, Fourteenth, and Fifteenth Amendments.

Investigations and prosecutions under Section 242, while not numerous, are often significant. Career prosecutors under both Republican and Democratic administrations have, for decades, relied on the statute to investigate the conduct of law enforcement officers when needed. DOJ used Section 242 to prosecute the men, including law enforcement officials, responsible for the 1964 murder of three young civil rights activists in Mississippi. In 1993, under the leadership of Attorney General Bill Barr, DOJ obtained indictments against four Los Angeles Police Department officers involved in the 1991 beating of Rodney King, two of whom were later convicted at trial. Nearly three decades later, the first Trump Administration’s DOJ, again under Attorney General Bill Barr’s leadership, opened an investigation into the death of George Floyd. The DOJ later charged four Minneapolis Police Department officers with violating Section 242, ultimately convicting them for violating Mr. Floyd’s constitutional rights.

DOJ’s failure to address apparent uses of excessive force by federal immigration agents, coupled with DHS doubling down on the appropriateness of its violent and constitutionally questionable tactics, makes the situation more dangerous. In prior administrations, agents credibly accused of violating the Constitution by using unreasonable force would commonly be placed on leave, or on desk duty, while the agency (in this case, ICE or CBP) conducted an internal administrative investigation or referred the incident to DOJ. DOJ could then conduct a criminal investigation when warranted and, if no charges resulted, the agency could determine whether it needed to take administrative action or return the officer to enforcement duties. Currently, however, DHS has permitted agents to continue to serve, with few known exceptions—and even lauded their conduct. Meanwhile DOJ’s silence emboldens further aggressive uses of force.

Select Incidents Meriting Investigation

Over the past seven months, many incidents involving federal immigration agents’ force have been documented on video. While each incident requires thorough investigation to determine whether agents violated federal law, the publicly available evidence in many cases appears to implicate Section 242 and merit a full investigation. Indeed, at least one federal court has already concluded that individual and organizational plaintiffs made a “strong showing” that the government’s tactics constituted unreasonable force in violation of the Fourth Amendment.

September 19, 2025 – Broadview, Illinois

To take one widely-reported example, on September 19, 2025, at least one federal agent stationed on the roof of an ICE processing and detention facility in Broadview, Illinois, fired pepper balls at Reverend David Black as he prayed outside the building with a group of protestors holding signs, shouting, and dancing. A video shows Reverend Black, dressed in clerical garb and standing with his arms extended, palms open and empty, in a parking space outside the building, when an agent drew and repeatedly fired a pepper ball launcher at Black, striking him in the head, arms, and torso, and causing him to fall to his knees. Black later stated in a court declaration that the officers had issued no warnings or orders to disperse before firing, and none can be heard in the video. Neither Black nor the other protestors visible in the video appeared to pose any threat to the officers.

While a full investigation would be required, the publicly available evidence indicates that one or more officers may have committed a felony civil rights violation in firing pepper balls at Reverend Black. To establish a violation of Section 242, a defendant must have been (1) acting under color of law when he (2) willfully (3) deprived a person of a constitutional or federal right. Officers act “under color of law” when they act in their official capacity. The agent who fired at Reverend Black was acting under color of law, and in firing pepper balls at Reverend Black and other protesters, the officer may have violated both Black’s First and Fourth Amendment rights.

Focusing on Black’s Fourth Amendment right to be free from the use of unreasonable force by a law enforcement officer, it is not apparent there was a need for any force—the protestors did not pose a discernable threat to the safety of the officers or anyone else, and the video indicates no urgent need for the protestors to move. Firing pepper balls with no warning at a pastor’s head while he was praying under these circumstances is objectively unreasonable. And the very obvious unreasonableness of those actions indicates that the officer knew firing on Black would be unlawful. Knowing this—and choosing to fire anyway—is the definition of willfulness. Finally, Reverend Black’s reaction—clasping his hand to his eyes and collapsing on his knees—shows that he suffered bodily injury. Proving this element makes the crime a felony. In any previous administration, an incident like this, caught on video, would have prompted an immediate DOJ investigation.

October 23, 2025 – Oakland, California

In Oakland, on October 23, 2025, the Reverend Jorge Bautista attended an early morning vigil to protest an expected immigration enforcement surge in the Bay Area. As trucks carrying CBP agents drove past protestors toward a bridge connecting Oakland with the agents’ destination, a Coast Guard base, agents exited the trucks and approached the protestors, including Reverend Bautista. One agent trained a pepper ball launcher on Bautista from about five feet away. As Bautista said, “we’re here in peace,” the agent fired a pepper ball into Bautista’s face, leaving him coated in powder and bleeding from his chin. While video and photographs that capture the incident do not show all the circumstances that would be relevant to determining whether this use of force was reasonable, firing at such close range at the head of a pastor who, by his words and actions showed that he did not pose a threat, appears unreasonable; these facts would support an investigation.

June 7, 2025 – Paramount, California

On June 7, 2025, journalist Ryanne Mena was interviewing protestors near a Home Depot in Paramount, California, wearing press credentials, when federal agents exiting a nearby warehouse began firing rubber bullets at her and the protestors. They did so without first issuing a warning. Mena said relatively few protestors were present, and she did not see anyone threatening or antagonizing the agents. As she and a second journalist ran for cover, a rubber bullet struck her in the head; the other journalist was hit in the forehead with a tear gas canister. This incident, too, would be an appropriate subject for a Section 242 investigation.

Proving Section 242 violations beyond a reasonable doubt can be challenging in part because the law permits officers to use force—even lethal force—in certain circumstances. When officers willfully exceed the bounds of the law, however, the DOJ is authorized to prosecute. The DOJ’s prosecution of federal officers who have violated Section 242 involves, at its core, the enforcement of not just a criminal statute but the rule of law itself—as it ensures the officers entrusted to execute the law themselves act within its bounds.

Bringing civil rights prosecutions against law enforcement officers is never easy. Juries tend to be wary of harshly judging those who choose a job protecting the public at risk to their own safety. But DOJ has traditionally recognized the importance of holding the agents and officers who wear badges and carry guns responsible when they willfully violate the rights of those whom they serve. This practice underscores the idea that no one is above the law.

The video evidence and other evidence already in the public domain about these and other incidents provides ample cause to open civil rights investigations. Yet we have heard resounding silence from this DOJ.

Other Avenues for Relief are Challenging

Action from DOJ in response to excessive force by federal immigrant agents is vital also because alternative paths for pursuing accountability are challenging. Local prosecutors face significant legal hurdles in bringing charges against federal officials for violating state law: where federal agents’ actions are authorized by federal law and “necessary and proper” for fulfilling their federal duties, they may be immune from prosecution under the Supremacy Clause. Private litigants also face significant doctrinal challenges when suing federal officers, as the Supreme Court has both limited the availability of injunctive relief for ongoing violations and narrowed the circumstances under which suits for monetary damages may be brought against federal officials. Where litigants can sue, the robust protections provided by qualified immunity often mean the suit is dismissed before discovery—even if a court agrees that the federal officials violated the Constitution.

States, therefore, are pursuing creative methods to document perceived abuses, as Governor Pritzker has done in creating the Illinois Accountability Commission. This Commission aims to gather evidence of potentially unlawful conduct by federal agents, to support referrals to investigative agencies and recommendations for changes to existing laws to better protect state residents. Other states and cities have created online portals that residents can use to report misconduct by federal agents. Still others have announced they are investigating possible violations of state law by federal agents or that they stand ready to do so. Meanwhile, many state and local law enforcement leaders remain focused on improving both public safety and community trust, which go hand-in-hand. Their approaches include better engagement with communities, an emphasis on deescalation, and new guidelines for policing protest events. Where federal officers are not immune from state prosecution (because, for instance, their actions violate federal law) states can select the appropriate charge from an array of state statutes, including ones that, unlike Section 242, permit prosecution for criminal negligence and other lesser levels of intent than Section 242 requires.

***

DOJ has the authority, resources, and responsibility to hold federal agents accountable for willful constitutional violations. It has the tools and power to deter further unlawful acts. Unfortunately, DOJ’s current abdication of responsibility puts communities at needless risk and undermines the rule of law itself.

The post DOJ’s Dangerous Silence in the Face of Federal Immigration Agents’ Violent Tactics appeared first on Just Security.

The collection now also includes analysis of more recent boarding and seizure of vessels, including U.S. sanctioned oil tankers, and the U.S. military operation in Venezuela that removed President Maduro from power.

Informational Resources

• Jeremy Chin, Margaret Lin, and Aidan Arasasingham, Timeline of Boat Strikes and Related Actions (continually updated)

Operation Absolute Resolve and Threats of Force against Venezuela

• Jeffrey Rogg, U.S. Intelligence in a Post-Maduro Venezuela (Jan. 9, 2026)
• Brian Egan, Tess Bridgeman, and Ryan Goodman, Congress, the President, and the Use of Military Force in Venezuela (Jan. 7, 2026)
• Chimène Keitner, Head of State Immunity and Maduro on Trial (Jan. 6, 2026)
• Michael Schmitt, Ryan Goodman and Tess Bridgeman, International Law and the U.S. Military and Law Enforcement Operations in Venezuela (Jan. 4, 2026)
• Ryan Goodman, Maduro Capture Operation and the President’s Duty to Faithfully Execute U.N. Charter Assessment of 1989 OLC Opinion (Jan. 3, 2026)
• Michael Schmitt, U.S. Saber Rattling and Venezuela: Lawful Show of Force or Unlawful Threat of Force? (Nov. 4, 2025)

Seizure and Blockade of Vessels (Domestic and International Law)

• Rob McLaughlin and Connor McLaughlin, A Law of the Sea Assessment of the U.S. boarding of the Bella 1 / Marinera (Jan. 14, 2026)
• Rob McLaughlin and Tess Bridgeman, The Just Security Podcast: Can the U.S. Seize Russian Flagged Oil Tankers? (Jan. 8, 2026)
• Elizabeth Hutton, Maritime Law Enforcement on the High Seas: Authority, Jurisdiction, and the Seizure of The Skipper An Expert Backgrounder (Dec. 22, 2025)
• Michael Schmitt and Rob McLaughlin, Blockading Venezuela: The International Law Consequences (Dec. 18, 2025)
• Rob McLaughlin and Connor McLaughlin, Was the Visit and Seizure of the Skipper off the Coast of Venezuela Lawful? (Dec. 17, 2025)
• See also Question 31 in Tess Bridgeman, Michael Schmitt, and Ryan Goodman, Expert Q&A on the U.S. Boat Strikes (Dec. 13, 2025)

Operation Southern Spear and Related Operations Legal Analysis (Domestic and International Law)

• Michael Schmitt, Using an Unmarked Aircraft to Attack an Alleged Drug Boat: Is it Perfidy? (Jan. 20, 2026)
• Michael Schmitt, Marko Milanovic, The International Law Obligation to Investigate the Boat Strikes (Dec. 15, 2025)
• Tess Bridgeman, Michael Schmitt, and Ryan Goodman, Expert Q&A on the U.S. Boat Strikes (Dec. 13, 2025)
• Mark Nevitt, The Law on Targeting Shipwrecked Drug Traffickers: Expert Backgrounder (Dec. 11, 2025)
• Michael Schmitt, Ryan Goodman and Tess Bridgeman, Operation Southern Spear: Why the Crews, Drugs, and Boats are Not Targetable (Dec. 7, 2025)
• Michael Schmitt, Ryan Goodman and Tess Bridgeman, Unlawful Orders and Killing Shipwrecked Boat Strike Survivors: An Expert Backgrounder (Dec. 1, 2025)
• Daniel Maurer, Hypothetical Legal Review of Narcotrafficking Strikes (Nov. 18, 2025)
• Michael Schmitt, Marko Milanovic, and Ryan Goodman, The International Law Obligation of States to Stop Intelligence Support for U.S. Boat Strikes (Nov. 17, 2025)
• Brian Finucane, Dissecting the Trump Administration’s Effort to Circumvent the War Powers Resolution for Boat Strikes (Nov. 3, 2025)
• Rebecca Ingber and Jessica Thibodeau, Expert Backgrounder on War Powers Resolution 60-Day Clock for Boat Strikes Expiring Monday (October 31, 2025)
• Ryan Goodman, Michael Schmitt and Anna Jimenez, Irreconcilable Presidential Determinations: On Tren de Aragua and the Venezuelan Government (October 29, 2025)
• Michael Schmitt, Attacking Drug Cartels in the Territory of Another State (Oct. 17, 2025)
• Marty Lederman, Legal Flaws in the Trump Administration’s Notice to Congress on “Armed Conflict” with Drug Cartels (Oct. 3, 2025)
• Daniel Maurer, US Servicemembers’ Exposure to Criminal Liability for Lethal Strikes on Narcoterrorists (Sept. 24, 2025)
• Marty Lederman, The Many Ways in Which the September 2 Caribbean Strike was Unlawful … and the Grave Line the Military Has Crossed (Sept. 10, 2025)
• Michael Schmitt, Striking Drug Cartels Under the Jus ad Bellum and Law of Armed Conflict (Sept. 10, 2025)
• Mark Nevitt, Using Labels, Not Law, to Justify Lethal Force: Inside the Venezuelan Boat Strike (Sept. 5, 2025)
• Brian Finucane, Legal Issues Raised by a Lethal U.S. Military Attack in the Caribbean (Sept. 3, 2025)

Congressional Actions and Oversight

• Tess Bridgeman, Margaret Donovan and Ryan Goodman, U.S. Boat Strike Campaign: Questions Congress Should Ask Executive Branch Officials (Dec. 4, 2025)
• Stephen R. Weissman, Will the Intelligence Committees Meet the Challenge of CIA Covert Action in Venezuela? (Oct. 31, 2025)
• Mary B. McCord and Tess Bridgeman, What the Senate Judiciary Committee Should Ask A.G. Bondi on Drug Cartel Strikes (Oct. 3, 2025)

Policy Analysis and Opinion

• Mark Nevitt, Killing Shipwrecked Survivors is Not Just Illegal—It Endangers U.S. Servicemembers (Dec. 1, 2025)
• Eugene R. Fidell, Daniel Maurer and Steven J. Lepper, Professional Responsibility and the Boat Strikes (Dec. 1, 2025)
• Brett Max Kaufman, From Secret Law (2001-2024) to None at All (2025-present) (Nov. 21, 2025)
• Sarah Harrison and Mark Nevitt, The Caribbean Strikes and the Collapse of Legal Oversight in U.S. Military Operations (Oct. 23, 2025)
• Ben Saul, The United States’ Dirty War on “Narco Terrorism” (Sept. 22, 2025)
• Annie Shiel, John Ramming Chappell, Priyanka Motaparthy, Wells Dixon and Daphne Eviatar, Murder by Drone: The Legal and Moral Stakes of the Caribbean Strikes (Sept. 17, 2025)
• Brian Finucane, Asserting a License to Kill: Why the Caribbean Strike is a Dangerous Departure from the “War on Terror (Sept. 15, 2025)

Podcast Episodes

• Tess Bridgeman, Rob Mclaughlin, The Just Security Podcast: Can the U.S. Seize Russian Flagged Oil Tankers? (Jan. 8, 2026, also available on YouTube)
• Tess Bridgeman, Rachel Goldbrenner, Rebecca Ingber and Brian Finucane, The Just Security Podcast: Murder on the High Seas Part IV (Dec. 2, 2025)
• Tess Bridgeman, Brian Finucane, Rebecca Ingber, The Just Security Podcast: Murder on the High Seas Part III  (Oct. 21, 2025, also available on YouTube)
• Tess Bridgeman, Brian Finucane, Rachel Goldbrenner, Rebecca Ingber, The Just Security Podcast: Murder on the High Seas Part II — What We Know about U.S. Vessel Strikes One Month In (Oct. 7, 2025)
• Tess Bridgeman, Brian Finucane, Rebecca Ingber, The Just Security Podcast: Murder on the High Seas? What You Need to Know about the U.S. Strike on the Caribbean Vessel (Sept. 9, 2025, also available on YouTube)

The post Collection: U.S. Lethal Strikes on Suspected Drug Traffickers, Operation Southern Spear, Operation Absolute Resolve appeared first on Just Security.

Why did Maduro tell the judge he’s still president? Why does that matter?

Under international law binding on the United States (and all countries), the sitting head of state or head of government of one country can’t be sued or prosecuted in another country’s courts. That’s why the U.S. president can travel to other countries without worrying about being sued, prosecuted, or arrested. This is such a well-accepted principle that it’s not codified in any treaty, but it has been restated innumerable times, including by the International Court of Justice and the U.S. State Department. The technical term for this is immunity rationae personae, or personal immunity, and it also extends to foreign ministers. It is designed to protect leaders of foreign countries from being hindered in performing their duties and is rooted in the idea that all countries are equal on the international plane (that is, they have sovereign equality).

But didn’t the United States prosecute Manuel Noriega after abducting him from Panama in 1989?

Yes. The United States didn’t recognize General Manuel Noriega, who was a military dictator, as Panama’s head of state, and the government of Panama didn’t request immunity on his behalf. (Especially in contested cases, it matters whether the government of a country tells the court and/or the State Department that an individual holds a particular position in that government that entitles them to immunity.) So U.S. courts let that prosecution go forward. The Eleventh Circuit Court of Appeals reasoned that Noriega wasn’t entitled to immunity “given that the record indicates that Noriega never served as the constitutional leader of Panama, that Panama has not sought immunity for Noriega and that the charged acts relate to Noriega’s private pursuit of personal enrichment.”

It’s important to keep in mind, though, that recognition by one country alone doesn’t change whether a genuine head of state is entitled to immunity on that basis. If that were the case, countries could game the law by simply withdrawing their recognition, nabbing foreign leaders, and trying them in their courts. The Panama case was arguably more complicated because there were democratically elected authorities in Panama who also did not consider Noriega to be the legitimate head of state.

And more recently the U.S. also prosecuted the former president of Honduras?

Yes, although because Juan Orlando Hernandez was a former, not a sitting, head of state, his prosecution did not violate head of state immunity. Also, importantly, in that case the United States requested and obtained his extradition from Honduras through legal channels. In addition, a country can always waive its own official’s immunity or decline to support the official’s claim to immunity.

Who decides whether to waive an official’s immunity?

Generally, it is the de facto authorities of the official’s home country. It can be complicated, though, especially if there are different political groups within a single country that are all vying for power. There is definitely a risk that arrest and extradition can serve as a convenient way to get rid of political rivals. That’s why international human rights law requires that defendants receive procedural protections, both in the extradition process and when they are eventually tried and prosecuted. Most extradition treaties also have exceptions under which a country that is asked to extradite an alleged offender can refuse to do so on the grounds that the request is politically motivated–but this doesn’t help if the extraditing country also supports the prosecution.

Will a U.S. court allow the Department of Justice to prosecute a sitting foreign head of state?

U.S. courts have dismissed civil suits filed against foreign sitting heads of state. If the U.S. government tried to prosecute a foreign sitting head of state that the executive branch recognized as such, then international law would certainly require a court to dismiss the case. But U.S. courts haven’t faced this particular dilemma, because in Maduro’s case the executive branch isn’t seeking to prosecute someone that it recognizes as a sitting foreign head of state. Instead, it has argued (as in the Noriega case) that Maduro isn’t entitled to be treated as a head of state.

The judiciary does not owe absolute deference to the executive branch on all foreign affairs matters, but it does give the executive branch deference on recognition decisions. It would be interesting to see what a court did in a clear cut case where non-recognition was absurd on its face – for example, if the Department of Justice said “the United States doesn’t recognize Mark Carney as Canada’s head of government,” or “the United States doesn’t recognize Emmanuel Macron as France’s head of state.”

This is a more complicated case. On the one hand, Venezuela now has an interim president, Delcy Rodriguez, sworn in shortly after Maduro’s capture. On the other hand, Rodriguez has publicly called for Maduro’s release and said he is still President of Venezuela. The case could take an interesting turn if Venezuela – through an amicus brief perhaps – informs the court that it has not waived Maduro’s immunity and he remains their head of state.

That said, the United States has not recognized Maduro as Venezuela’s head of state since 2019. That will likely be decisive for a U.S. judge under domestic law because of the executive branch’s exclusive recognition power, even though head-of-state status under international law does not depend on any single country’s recognition decision. Generally, under international law, if an individual has the legal authority to bind the country in its international relations, that person would be considered the head of state regardless of how that person assumed the position.

So international law doesn’t matter?

The United States always indicates when it files immunity determinations with U.S. courts that it is doing so after considering “the relevant principles of customary international law.” The biggest deterrent to violating international law regarding immunities is that other countries can start doing the same thing. The United States has often violated international law with apparent impunity, but every time it does so the international system becomes less stable and less predictable, in addition to less just. Moreover, it should go without saying that disregarding immunity for other countries or their officials also risks eroding the well-established norms that protect the United States and its officials in foreign courts.

Speaking of stability and predictability, what about the military operation to capture Maduro? Doesn’t that make his prosecution illegal?

There is zero international legal justification for conducting a military operation on another country’s territory to capture an alleged fugitive, let alone a foreign leader, without that country’s consent or authorization by the U.N. Security Council. But international law and U.S. law separate the question of how a defendant’s presence was obtained before a court from whether that defendant can be prosecuted. In international law, the principle is called male captus, bene detentus. It essentially boils down to the idea that a person can be unlawfully captured, but still lawfully prosecuted, as long as the proceedings themselves comply with applicable law.

Once Venezuela has a new acting president, will that change Maduro’s status? Can he claim immunity as a former head of state?

If relevant Venezuelan authorities do not treat Maduro as the head of state, then he would no longer be able to claim that status. As noted above, this question may be disputed if his successor maintains that he is still the head of state. Assuming a U.S. court determines he is not entitled to immunity as a sitting head of state, a different immunity analysis would apply.

Former foreign officials enjoy certain residual, conduct-based immunities for their official acts. However, drug trafficking and corruption do not fall within any head of state’s official duties. Such charges do not raise the immunity questions sometimes associated with legal proceedings against former foreign officials for international crimes such as torture that are necessarily committed under color of law. (There is also a separate question of immunity for international crimes before international courts; although Venezuela has announced its intended withdrawal from the International Criminal Court, its ratification of the treaty that created that court amounts to a renunciation of official immunities before the ICC for conduct that falls within the court’s jurisdiction.)

Setting aside Maduro’s unlawful capture, isn’t his prosecution a good thing?

That’s really a question for Venezuelans to answer, especially since the person who has now assumed power was Maduro’s vice president and close associate. It’s difficult for the United States to have credibility in upholding the rule of law when it so willingly violates it and applies inconsistent standards–whether it’s pardoning Hernandez while prosecuting Maduro and executing suspected drug couriers, or defying domestic court orders. Ideally, each country is responsible for ensuring its own compliance with both domestic and international law, with action by foreign or international courts available as a back-up when national institutions fail. In the U.S. legal and political system, the power to rein in a lawless executive branch lies primarily with Congress and with voters, not with courts. That’s one reason why the contours of domestic official immunity don’t necessarily mirror those of foreign official immunity.

International law outlaws coercive intervention in the internal and external affairs of other states precisely because there is a real danger of abuse and ulterior motives. The United States appears to feel that its military and economic superiority allow it to act unilaterally in violation of international law, and that cooperation and alliances are overrated. That might seem appealing in the short term, but the world has already seen where unchecked expansionism and claimed spheres of influence lead. The benefits of following agreed-upon rules have often been recognized only after significant harm caused by their disregard.

The post Head of State Immunity and Maduro on Trial appeared first on Just Security.

January 6, 2026 Update: Q&As on U.S. Military Operation and Seizure of Nicolás Maduro (Questions 1-6)

1. Was the U.S. military operation and seizure of Nicolás Maduro a “use of force” under international law or a law enforcement operation?

It was both, and they are not mutually exclusive. While the Trump administration has leaned heavily into the law enforcement purpose of the raid (Maduro now faces charges in federal court in New York City), it was a military operation that involved U.S. armed forces conducting kinetic strikes against military (and potentially civilian) facilities within Venezuela before forcibly capturing the sitting head of state and his wife, and forcibly removing them from the country. The operation reportedly killed approximately 80 people. The operation was a use of force by one State against another under international law by any accepted definition of the term. 

Because there was no self-defense justification for the use of force (and of course, no U.N. Security Council authorization), it was an unlawful use of force. Specifically, it was a violation of Article 2(4) of the U.N. Charter and customary international law.

2. If the operation was a use of force against Venezuela, are the United States and Venezuela now in an “armed conflict”? And can they be in an armed conflict if the United States says they aren’t?

Yes and yes. As we have previously explained, the U.S. use of military force against Venezuela initiated an international armed conflict between the two countries. The Trump administration’s frequent characterization of the operation as having a law enforcement purpose does not change this. As we explained:

Under Common Article 2 of the 1949 Geneva Conventions, the existence of an international armed conflict is a question of fact. In other words, if there are hostilities between the States, there is an international armed conflict even if one of them does not formally recognize its existence. Common Article 2 is universally accepted as reflective of customary international law.

There are numerous challenging issues regarding the classification of conflicts, such as the precise threshold at which they are triggered and whether another State’s support of a non-State organized armed group that is engaged in hostilities with a State suffices to initiate an armed conflict between the two States. Those thornier issues are not relevant to these strikes and the Maduro capture operation. The intensity of the U.S. operations directed at Venezuela clearly crossed any conceivable threshold necessary to trigger an international armed conflict. To be clear, the operations put the United States and Venezuela in armed conflict as a matter of fact and of law. 

3. Does anything change as a result of the United States and Venezuela being in an international armed conflict?

Yes, there are meaningful consequences “ranging from the protections now owed to Venezuelan nationals in the United States, to the application of rules governing treatment of Maduro and his wife while in U.S. custody, to accountability for any war crimes committed in the course of the conflict,” as we previously explained. 

Most fundamentally, the law of armed conflict, including all four of the Geneva Conventions and other binding rules applicable in international armed conflicts, now governs operations and activities related to the conflict, including targeting and detention. Among other rules, the Fourth Geneva Convention’s protections for civilians who fall into the hands of the adversary apply. As defined in art. 4(1) of that treaty: 

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

As we have explained, Maduro’s wife Cilia Flores, and Venezuelan nationals in the United States, should be entitled to the protections afforded by the Fourth Geneva Convention:

As a civilian captured by attacking forces in an international armed conflict, Maduro’s wife is entitled to a robust set of protections afforded to captured civilians in GCIV.  Indeed, Flores qualifies as a “protected person”…  

A suite of protections also kicks in for other civilians who are nationals of one party to the conflict and find themselves in the hands of the adverse State. Accordingly, Venezuelans in the United States are now “protected persons” under the Fourth Geneva Convention, as are Americans inside Venezuela. This has far-ranging implications for U.S. immigration and related policies. For example, Venezuelans who are protected persons have rights including protection against “brutality” (GC IV art. 32), against collective punishment and reprisals (GC IV art. 33); parity of employment opportunities (GC IV art. 39), rules for return of detainees transferred to a third State as in CECOT/El Salvador (GC IV art. 45), and family unity in detention (GC IV art. 82).

4. Is Maduro also a “protected person” under the Fourth Geneva Convention?

Possibly, though he might be considered a prisoner of war given his status as commander-in-chief of Venezuela’s armed forces. In that case, he would be entitled to the extensive protections of the Third Geneva Convention on the Protection of Prisoners of War (GCIII). As we have previously explained, 

In the 1992 case of U.S. v. Noriega, a federal district court found that General Noriega was “entitled to the full range of rights under the [POW] treaty, which has been incorporated into U.S. law.” However, in that case, which involved Noriega’s seizure by U.S. forces during the 1989 invasion of Panama, the general was the military dictator of Panama and also commanded the Panama Defense Forces.

5. May the United States attack drug traffickers and drug-related assets and facilities now that there is an armed conflict with Venezuela?

No, drug traffickers may not be targeted, unless they are additionally participating in the military hostilities. As we have previously explained (see our fuller explanation here), drug trafficking activities do not constitute hostilities, combat, or an “attack” in the legal sense of those terms. That means:

attacking those involved in such activities in the context of this armed conflict would violate the law of armed conflict prohibition and constitute a war crime, so long as those civilians do not separately participate in the armed hostilities (in the absence of an armed conflict between the United States and Venezuela, those killings constituted murder, and extrajudicial killings under international human rights law, but were not war crimes because that body of law clearly did not apply). More difficult questions arise as to whether an attack on non-state actors ferrying drugs on the high seas would be related enough to the war between the United States and Venezuela (an armed conflict “nexus” requirement) to be governed by the law of armed conflict, and thus constitute a war crime. 

With respect to drug-related assets and facilities:

Whether drug-related assets and facilities may be attacked depends on whether the U.S. position on so-called war-sustaining (or revenue-generating) targets is correct and the factual extent to which Venezuela relies on drug proceeds to fund its war effort. The same is true of its oil production and exports. 

A war-sustaining entity “indirectly, but effectively supports and sustains the belligerents’ warfighting capability,” such as “exports of products the proceeds of which are used by the belligerent to purchase arms and armaments” (Commander’s Handbook, § 7.4). The prevailing view in international law is that war-sustaining objects do not qualify as targetable military objectives. However, the United States has, for decades, claimed that war-sustaining objects are legitimate military objectives. It is a position with which one of us agrees, but the others do not (DoD Law of War Manual, § 5.6.8). 

6. When does an international armed conflict end? 

Like the initiation of an international armed conflict, determining when an IAC ends is a question of fact unique to every case. A touchstone for such determinations is that the conflict terminates upon the “general close of military operations.” As the DoD Law of War Manual explains, “Hostilities end when opposing parties decide to end hostilities and actually do so” (§ 3.8.1). There must be stability, and the end of hostilities must display a high degree of permanence. Importantly, the ICRC correctly points out that not only must active hostilities have concluded, but there can be no “military movements of a bellicose nature, including those that reform, reorganize or reconstitute, so that the likelihood of the resumption of hostilities can reasonably be discarded.” Note that international armed conflict continues during ceasefires, which are temporary cessations in the hostilities, and continues during military occupation of the adversary’s territory, even in the absence of any fighting.

With massive U.S. forces in the area, the Trump administration’s expressed willingness to use further force as it deems necessary (including repeated threats of doing so if Venezuelan authorities do not “cooperate” with U.S. demands), and its continuing “military ‘quarantine’” of Venezuelan oil tankers, it is uncontestable that the international armed conflict between the United States and Venezuela continues as a matter of law as of writing [Jan. 6]. 

Pre-January 6, 2026 Q&A

7. Is it legal to use lethal force to target suspected drug trafficking boats on the high seas or kill those on board?

No. The United States is not in an armed conflict with any cartel or criminal gang. That means the law of armed conflict (LOAC), also known as international humanitarian law (IHL), does not apply to the military operations that began on Sept. 2. Domestic criminal law and international human rights law both prohibit these kinds of lethal strikes outside of armed conflict (such killings are known as murder and extrajudicial killings, respectively). All 21 strikes against suspected drug trafficking boats, killing 83 people to date, have been unlawful. 

8. What U.S. law applies to the lethal strikes against these boats and the people on board?

Normal peacetime laws apply, including federal laws prohibiting murder and conspiracy to commit murder. Under U.S. domestic criminal law, “the unlawful killing of a human being with malice aforethought” is murder, including when committed on the high seas (note: that law also applies during armed conflict). Article 118 of the Uniform Code of Military Justice also criminalizes murder, both when military personnel intend to kill and when they engage in an “act which is inherently dangerous to another and evinces a wanton disregard of human life.” The provision applies overseas, as well as during armed conflict when the death is not lawful under the law of armed conflict. These laws apply, depending on their role, to the individuals involved in ordering and carrying out the strikes. 

9. What international law applies to the lethal strikes against these boats and the people on board?

International human rights law applies. U.S. strikes on suspected drug traffickers at sea are extrajudicial killings – that is, arbitrary deprivations of the right to life under international human rights law (IHRL), an obligation that the United States acknowledges applies extraterritorially. A killing is arbitrary when it is not conducted “in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives.” None of these circumstances were present in the boat strikes, in particular because those killed posed no imminent threat and other means of stopping the boats that are commonly used may have been feasible (i.e., interdiction). Note that States violate IHRL, not individuals. Individuals involved in these IHRL violations can be punished for murder or conspiracy to commit murder (see above).

10. Is the situation a non-international armed conflict (NIAC) as claimed by the administration?

No. NIACs are armed conflicts between a State and an organized armed group. There are two requirements for the existence of a NIAC. First, the non-state group must be both armed and organized. While cartels are typically well-organized, they are not per se “armed” in the sense of the law of armed conflict. “Armed” denotes engaging in violence against the State in an organized fashion; that the group may possess weapons used for other criminal activity does not suffice. A second requirement is that the armed violence between the State and the group must be protracted and intense; sporadic violence, including death, is not intense enough. Even if the intensity criterion could be satisfied at some point by virtue of the U.S. strikes continuing (this remains a contested area of law), the fact that the U.S. strikes are not directed at an organized armed group precludes characterization as a NIAC.

11. If there were an armed conflict with these groups (there is not), would killing people on the boats be lawful? 

It depends, but merely transporting drugs would not make a civilian targetable. If there was an armed conflict (there is not), an armed (fighting) wing of the cartel, should the cartel have one, could potentially meet the criteria for being considered an organized armed group. Members of it aboard the boats could be killed based on that status, although only so long as LOAC rules such as proportionality and precautions in attack are observed. The others who are merely operating the boats would have to qualify as civilians who may be targeted because they are “directly participating in hostilities” to be subject to attack. Although the threshold at which the conduct of a civilian amounts to “direct participation in hostilities” can be unclear in specific situations, merely transporting drugs would not qualify.

12. What about killing shipwrecked survivors of strikes at sea?

Killing shipwrecked survivors is clearly illegal and as unlawful as targeting those individuals with lethal force in the first place. If the United States were in an armed conflict (it is not), it would be illegal to target shipwrecked survivors at sea. The Department of Defense’s Law of War Manual (2023) uses exactly this rule as a paradigmatic example of a clearly illegal order:

18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal. (emphasis added)

If an order was given to leave no survivors – known as “denial of quarter” – that would also have been a clearly unlawful order, and anyone receiving that order had a duty not to follow it. 

13. Was killing the shipwrecked survivors of the Sept. 2 strike a war crime?

No, but that’s because war crimes are committed only during an armed conflict, and the United States was not (and is not today) in an armed conflict with the reportedly targeted group (Tren de Aragua). Killing the two shipwrecked survivors should be considered an extrajudicial killing under international human rights law, or murder under U.S. domestic law. An order to kill them would be unlawful whether in armed conflict or not. 

14. Do military personnel have an obligation to refuse to obey clearly illegal orders or orders the personnel know are illegal?

Yes. The DoD Law of War Manual explains, “The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal” (§ 18.3.2.1). The Manual for Courts-Martial, which applies to all orders, points out that although superior orders are presumed lawful, this presumption “does not apply to a patently illegal order, such as one that directs the commission of a crime.” Importantly, the duty to refuse an unlawful order is triggered only when the order is manifestly unlawful; if military personnel refuse to obey an order they believe to be unlawful, and the order is not, they may be punished for failing to follow it under the Uniform Code of Military Justice.

15. Is the fact that a member of the military was obeying an order from a superior a defense in a criminal case against them?

In some cases, no. Under both long-standing international and U.S. military law, the fact that the accused engaged in criminal conduct pursuant to a superior’s order is not a defense if the accused “knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful” (Manual for Courts-Martial, rule 916(d)). In other words, the question is whether the order was clearly unlawful or the accused knew it to be so. If not, they may defend themselves against the charges by arguing that orders are presumed lawful and that they had no reason to know the order was unlawful.

16.Would it have been lawful to target the boat in the follow-on strikes to destroy any remaining drugs, even if the survivors would be killed? [Q&A #10 was updated on Dec. 13, 2025]

No. Under international human rights law, which governed the strikes, it is unlawful to knowingly cause the death of individuals, even criminals, in order to destroy criminal assets, like drugs. And, as noted, the law of armed conflict does not apply (see above).

But even if the law of armed conflict did, it would appear impossible on the facts as reported to find the second strike lawful. The deaths of the two individuals, as either civilians or shipwrecked fighters (see above), would have to be factored into a proportionality analysis to assess whether the deaths were “excessive” relative to the anticipated military advantage of destroying the drugs. In other words, enough of the remaining drugs would likely have to be recoverable by other cartel members to justify killing the two survivors – a proposition that on its face is indefensible. And this is assuming that the recovery of the drugs would qualify as “military advantage” in the first place, a highly questionable proposition (one with which we disagree on the facts and the law). 

The U.S. Department of Defense seems to have taken the position that shipwrecked military personnel “generally” do not need to be considered in a proportionality assessment (DoD Law of War Manual, § 5.10.1.2). That is an interpretation with which we, and many others, including the ICRC, disagree. In their view and ours, such individuals need to be considered as part of the proportionality analysis. (See, e.g., GC II Commentary, ¶ 1403: “[I]f civilians are to be included in the proportionality assessment all the more so should the wounded, sick and shipwrecked.”)

Regardless, the DoD Law of War Manual (§ 5.10.1) emphasizes that “feasible precautions must be taken to reduce the risk of harm to military personnel and objects that are protected from being made the object of attack, such as military personnel placed hors de combat.”  Thus, even by the express DoD view, if there were another feasible means of destroying or seizing the drugs without killing the survivors, the law of armed conflict rule on precautions in attack would prohibit an attack likely to kill them. (And again, all of this assumes the law of armed conflict applied, which it did not.)

Notably, the declassified 2012 Joint Chiefs of Staff’s No-Strike and the Collateral Damage Estimation Methodology states that the rule of proportionality applies not only to civilians but also to noncombatants, which includes, as a definitional matter, “the wounded, sick, and shipwrecked” (Enclosures D-1 & GL-5) (emphasis added). The 2021 Joint Staff Methodology for Combat Assessment also provides that “persons or objects that would not be lawful military targets in the circumstances ruling at the time” must be considered in a collateral damage assessment. (Enclosure GL-5; see also Enclosure D-1 referring to them as “noncombatants”) (emphasis added).

17. Was there a duty to try to rescue the survivors of the Sept. 2 attack?

Yes, if feasible. Under longstanding international law during both peacetime and armed conflict, there is an obligation to take practicable measures to rescue individuals who have been shipwrecked. It is one reflected in both the law of the sea and the law of armed conflict. During peacetime, the duty is to proceed at all possible speed to rescue persons in distress so long as doing so does not seriously endanger the ship or crew (Law of the Sea Convention, art. 98). This was the applicable obligation because the United States was not in an armed conflict. Nevertheless, even during armed conflict, according to the Navy/Marine Corps/Coast Guard Commander’s Handbook on the Law of Naval Operations, “following each naval engagement at sea, the belligerents are obligated to take all possible measures, consistent with the security of their forces, to search for and rescue the shipwrecked” (emphasis added). We note that the Department of Defense’s Law of War Manual states, “The obligations to search for, collect, and take affirmative steps to protect the wounded, sick, and shipwrecked are subject to practical limitations” (7.4.4).

18. Has the United States violated the prohibition on the use of force found in Article 2(4) of the UN Charter by striking the boats?

No. The prohibition applies only to using force against other States. The strikes are unlawful, but not as a violation of this UN Charter (and customary law) prohibition. A use of force against Venezuela (or within its territory but without its consent), absent an armed attack or imminent threat of one against the United States, would, however, implicate this prohibition (see below). 

19. Has there been an “armed attack” against the United States that would justify U.S. military force in self-defense?

No. States may only use force in self-defense in response to an imminent or ongoing “armed attack”  (UN Charter, art. 51). Despite the Trump administration’s claims, and even if all of the claimed facts were true, there has been no “armed attack” (or imminent threat of armed attack) by any drug cartel or criminal gang against the United States. Trafficking drugs into a country cannot alone constitute an armed attack that would trigger the right of self-defense in response. Therefore, the United States has no claim to use force in self-defense against any of these groups. 

20. Is the buildup of U.S. forces off the coast of Venezuela and  threats to employ them against Venezuela lawful?

No. Shows of force, such as exercises, are legal if designed to show resolve, as in the case of demonstrating a willingness to defend against an unlawful armed attack. But Article 2(4) of the UN Charter and customary law prohibit States from even threatening to use force unlawfully if the threats are communicated to the threatened State, coercive, and capable of being carried out. Senior U.S. officials, including the President, have openly and coercively suggested the forces could be used against Venezuela, and the U.S. military is obviously capable of mounting a large-scale attack against that State. Since the United States has no legal basis for using force against Venezuela or any drug cartels operating there (see above), the build-up with the accompanying threats is unlawful.

21. Would U.S. strikes on alleged cartel boats in Venezuelan waters or cartel facilities and personnel in Venezuela be lawful?

No. Military operations in Venezuelan territory would be unlawful as a use of force against Venezuela in clear violation of the UN Charter (art. 2(4)) and customary international law. Venezuela has not engaged in any activities that would qualify as an “armed attack” against the United States, the trigger for the right to use force against another State in self-defense. Nor have any of the cartels engaged in an armed attack against the United States, which, according to some States and experts, might open the door to operations against them on the basis that Venezuela is unwilling or unable to put an end to their hostile activities emanating from its territory.

22. May groups designated as Foreign Terrorist Organizations (FTOs) be targeted?

No, not on that basis alone. An FTO designation does not authorize the use of force against the designated organization or its members. It carries non-lethal penalties, such as making members of the FTO inadmissible to enter the United States and allowing for its assets to be blocked. An FTO designation “does not require or create a ‘war’ or ‘armed conflict’ between the designee and the United States (or any state).” Nor does it trigger any wartime authorities. In short, the administration’s designation of certain cartels and criminal gangs as FTOs (or otherwise describing them as “narcoterrorists”) does not provide a legal basis for using force against them. 

23. Should the President ask for authorization from Congress to take these strikes?

No, this is not a domestic law, war powers issue, because the United States is not at war. While it is true that the President is acting on claimed unilateral constitutional authority alone, no declaration of war or authorization to use military force by Congress could make these strikes lawful. That’s because, as described above, there has been no armed attack against the United States that could justify the resort to force in self-defense, and there is no armed conflict between the United States and any cartel or criminal gang. So while it is alarming that the executive branch is claiming authority to engage in a campaign of extrajudicial killings outside of armed conflict, there is no congressional action that could make those killings lawful.

24. May other States assist the U.S. military operations targeting suspected drug trafficking?

No. A State may not assist another State in violating international law. If it does, it will itself have violated international law to the extent of its assistance, so long as the conduct of the assisted State would also violate international law if carried out by the assisting State and the assisting State is aware of the circumstances in which its assistance will be used. Since the well-publicized U.S. operations violate international human rights law binding on all States, assistance, such as providing intelligence facilitating the strikes, would be unlawful. This explains why some States have shut off intelligence sharing that the United States could leverage to conduct these lethal operations.

Addendum I
Q&A Round 2 (published on Dec. 13)

25. Does the fact that the U.S. strikes occurred in international waters impact whether the situation qualifies as a non-international armed conflict?

No. As explained above, the gangs and cartels involved do not qualify as organized armed groups, so where the strikes occur is irrelevant to whether the situation qualifies as a non-international armed conflict (NIAC). 

But, solely for the sake of discussion, note that there are two views on the effect of geography on classification of a situation as a NIAC. One view, a possibility raised by the ICRC (here, para. 548), is that the law of armed conflict governing NIACs applies when hostilities that have already begun “spill over” into an adjacent State’s territory that is not involved in the NIAC (e.g., also fighting the group). Beyond that spill-over area, the situation does not qualify as a NIAC, and accordingly, the law of armed conflict does not apply. On this view, a NIAC also arguably cannot be initiated based on hostilities occurring only outside the territory of any State (an idea grounded in the specific wording of Common Article 3 of the Geneva Conventions). Applied to these strikes, their location far from the United States would be a further reason that the situation is not a NIAC to which the law of armed conflict applies.

The second view, with which we agree, is that there is no geographic limitation that applies to the initiation of a NIAC, and, therefore, the LOAC governing it (see, e.g., Tallinn Manual 2.0, pages 386-87). The sole criteria are the “organization” and “intensity” requirements (Tadić, ¶ 70), which we explained above. Thus, if the gangs or cartels were organized in a manner to conduct military-like operations (they are not), and hostile exchanges between the U.S. forces and those groups were of sufficient intensity (they are not), the fact that they are taking place far from U.S. shores would not bar qualification as a NIAC.

26. Would U.S. military operations into another State trigger an international armed conflict between the United States and that State?

In most cases, yes. An international armed conflict (IAC) exists whenever there are armed hostilities between States. Unlike non-international armed conflict, there is no intensity requirement – the requirement is only that there be “hostilities” (or unopposed occupation). If the United States conducts operations targeting the armed forces of another State or its State institutions, wherever they may be, those operations would initiate an IAC between the United States and that State. Moreover, if the United States attacks other property or people on a State’s territory, the situation also would qualify as an IAC. Once an IAC is triggered, all four of the 1949 Geneva Conventions, other treaty obligations governing IACs, and the customary law of armed conflict apply.

Whether non-forcible but non-consensual military operations into another State’s territory, such as overflight by military aircraft or the entry of warships into the territorial sea (other than innocent passage), would qualify as an IAC is unsettled. By the prevailing view, it would even if it meets no armed resistance. The operations would be treated as a hostile action against the territorial State, essentially an unopposed invasion. The opposing view is that mere intrusion into the territory of another State would not amount to an IAC until there was an exchange of fire or other hostilities (such as capture of property, territory, or people). 

The one possible exception involves operations targeting organized armed groups in another State’s territory that are not operating under the control of the territorial State, a topic addressed in the next question. 

Our answers to this and the next question only concern the qualification of a situation as an armed conflict for the purposes of determining whether LOAC applies. Such operations would separately raise issues regarding sovereignty, intervention into the internal affairs of other States, and the prohibition on the use of force under the UN Charter and customary law (explained above). 

27. Would U.S. strikes against a gang or drug cartel that took place inside another State’s territory, without its consent, trigger an international armed conflict between that State and the United States?

Unsettled. One State’s (e.g., the United States’) hostilities against a non-state actor (e.g., TdA) in another State’s territory (e.g., Venezuela) could, on one view, qualify as an international armed conflict between the two States. On this view, even if there was a NIAC between the State and a non-state actor, there would still be a separate international armed conflict triggered by military operations into the territorial State without its consent. This is the ICRC’s view and is the prevailing one. 

An alternative view, held by one of us (Schmitt), is that operations into another State’s territory might not constitute hostilities against it, thereby triggering an armed conflict between the two States. The latter view has been expressed in the context of a State exercising its right of self-defense against an organized armed group responsible for an armed attack against that State when the hostilities between them qualify as a NIAC. This is the U.S. position. But, it’s not clear that the view’s proponents would extend it to a scenario such as the present one, that does not involve an organized armed group or the right of self-defense, but instead just killing citizens and residents of the territorial State who are involved in transnational crime. (Schmitt would not endorse that view.)

28. May the requirement of protracted violence at a high level for qualification as a non-international armed conflict be satisfied if the group’s operations do not rise to that level, but when U.S. operations are considered, they do?

Yes. The groups against which the United States is acting do not qualify as organized armed groups in the first place (see above), so the level of violence is irrelevant, because both the organization and the intensity criteria must be met independently. But in theory, if a gang or cartel qualified as an OAG because it was organized to direct military-like operations against the United States, the intensity of the U.S. strikes could be considered to assess whether the requisite intensity threshold had been reached, even if the hostilities against the United States alone did not, although some scholars believe there needs to be exchanges of fire from both sides. (Note that this raises a separate question of how to characterize the current situation, in which multiple groups allegedly transporting drugs are being attacked by the United States. On this issue, see below.)

It must be emphasized that the only basis for determining whether the NIAC intensity criterion has been reached in this case is the U.S. strikes. This is because the actions by the gangs or cartels  to date (alleged drug trafficking) cannot be described as “combat,” “hostile action,” or “attacks.” Trafficking drugs is none of these. 

29. Can the requirement for the existence of a non-international armed conflict that hostilities reach the necessary level of “intensity” be satisfied by aggregating the hostilities multiple groups are conducting?

Rarely, and certainly not here. Before turning to the question, we remind readers that none of the actions of the gangs or cartels targeted for killing by the United States are of the kind that factor into the intensity requirement. Intensity is about organized armed groups (which these are not) conducting hostilities against a State, not engaging in suspected criminal acts. 

However, assuming that multiple gangs or cartels were directing violence against a State (they are not), and they qualified as OAGs (the vast majority do not), the intensity criterion would be applied group-by-group. Only those groups that were individually engaged in hostilities with the United States at the requisite level of intensity would be involved in a non-international armed conflict with it. 

The sole exception could be if organized armed groups were engaging in operations against the United States together – that is, collaboratively in time, purpose, and operational context, as in the case of military wings of such groups coordinating and deconflicting their operations against the United States. That is not happening here.

30. Have the U.S. operations, including the boat strikes and deployment of forces into the region, amounted to an unlawful intervention into the internal affairs of Venezuela?

Yes. Under customary international law, one State may not employ coercive means against another State with respect to the other State’s domaine réservé, that is, matters over which the latter is, in principle, free to decide without being bound by international legal obligations. Here, the United States is (at least) attempting to compel Venezuela’s President to step down. In other words, it seeks “regime change.” The choice of a State’s political leaders clearly falls within its domaine réservé; indeed, it is the paradigmatic example. This is so even if Maduro’s presidency is highly contested or “illegitimate,” and rightfully so. Moreover, the show of force and threats of military action by senior administration officials self-evidently qualify as coercive. The demand for regime change has been at least implicitly communicated to Venezuela, the United States has the means to carry it out, and it has expressed a willingness to do so. (See this analysis by one of us, Schmitt, on why those actions have already amounted to an unlawful threat of force.)

31. Under international law, was the boarding and seizure of the Skipper, an oil tanker reportedly part of the “shadow fleet” transporting crude oil from Venezuela to Iran, lawful?

Maybe. Boarding was likely lawful, but seizing the vessel is more unsettled. Boarding and seizing a vessel on the high seas is an exercise of “enforcement jurisdiction.” Article 92 of the UN Convention on the Law of the Sea, which reflects a customary law rule binding on States like the United States that are not party to the treaty, limits enforcement jurisdiction to flag States. Ships flying another State’s flag can still be boarded under certain conditions – with the permission of the Master (Captain) or the flag State (either ad hoc or by treaty), or with UN Security Council authorization – none of which apply in this case.

A Coast Guard Maritime Special Response Team reportedly boarded the Skipper following coordination within the U.S. government through the longstanding Maritime Operational Threat Response process. At the time, the Skipper was flying the Guyanese flag, although Guyana’s maritime authority stated it was not authorized to do so, suggesting the tanker may have been effectively Stateless. The ship was also reportedly broadcasting false location data, apparently to avoid interception. The United States placed sanctions on the vessel in 2022 based on claimed involvement in generating revenue for Hezbollah and the Islamic Revolutionary Guard Corps. More such boardings and seizures are anticipated.

The fact that the Skipper is under unilateral U.S. sanctions provides no international-law basis for boarding it.  However, if it reasonably appears a ship is flying a false flag or is otherwise “without nationality,” it is considered Stateless, which allows a warship of any country to board it to verify its status (UNCLOS, art. 110). That appears to be the situation here. But it does not answer the question of whether the ship could lawfully be seized. 

Under international law, the seizure of the Skipper is less well-settled. Many States, including the United States, contend that they may enforce their domestic law on or against a stateless ship, in this case by seizing a U.S.-sanctioned vessel. As noted in the U.S. Navy’s Commander’s Handbook on the Law of Naval Operations, “Ships that are without nationality—stateless—may be boarded on the high seas and are subject to the jurisdiction of any State.” (§ 3.11.2). Here, a U.S. Magistrate had issued, on Nov. 26, a warrant to seize the Skipper “in international waters” based on a probable cause finding that the vessel and its cargo were subject to forfeiture under U.S. law. The Coast Guard executed the warrant on Dec. 10. The assertion that States may enforce domestic law aboard Stateless vessels in international waters is not universally accepted, with some States rejecting it altogether and others restricting what actions may be taken (e.g., limiting to situations in which there is a treaty basis for seizure, or for universal jurisdiction offenses, like war crimes). Note, in the context of counternarcotics operations, the United States has for decades seized Stateless vessels on the high seas, both unilaterally and in cooperation with other States. 

We thank Rear Admiral, United States Coast Guard (retired) William D. Baumgartner, former Judge Advocate General (TJAG) and former Commander, Seventh (now Southeast) District, for contributing significantly to the following Q & A.

32. How does the United States normally handle drug smugglers?

As a Coast Guard-led law enforcement operation. The United States has a special statute explicitly designed to address international drug smuggling by water, the Maritime Drug Law Enforcement Act (MDLEA). It is carefully tailored and has been adapted over four decades to provide for U.S. jurisdiction over a wide range of non-U.S. vessels found outside U.S. waters. Special provisions allow for U.S. prosecution for certain drug-related crimes with the cooperation of other nations or when no nation claims the smuggling vessel. Under the MDLEA, the U.S. Coast Guard works closely with other agencies, using forces from the U.S. Navy and other nations in a support capacity, to seize smugglers in the Caribbean and Pacific (down to South America). The Coast Guard also has special helicopters (HITRON) with gunners specially trained to shoot out the engines of drug smuggling boats and stop high-speed vessels. HITRON has stopped over 1,000 smuggling vessels in the last 25 years. During fiscal year 2025, ending on September 30, the Coast Guard intercepted over 500,000 pounds of cocaine – a record amount – with no deaths.

33. What happens to the boat crews?

Since the 1980s, crews seized by the Coast Guard have been prosecuted under the MDLEA and leveraged for intelligence on future smuggling operations. However, on Feb. 5, 2025, the Department of Justice announced that they would no longer prosecute boat crews seized under the MDLEA. Instead, those crews were to be returned to their home countries without being prosecuted or interrogated for intelligence purposes.

34. What international law applies to drug smuggling?

Drug smuggling is regarded as a law enforcement problem. The 1982 United Nations Law of the Sea Convention (UNCLOS), 1958 Convention on the High Seas, and Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the United States is a party to the latter two) apply and require cooperation from all States. In addition, the United States has over 30 bilateral agreements with other nations to make most drug smuggling interdictions seamless, regardless of the State or the location of the suspect boat.

35. How does drug smuggling compare to piracy?

Piracy and drug smuggling are distinct crimes, but international law treats both as law enforcement problems. Under UNCLOS and other treaties, piracy is a universal crime, and any State can stop, board, and seize pirates and their vessels. Under UNCLOS Art. 101, piracy is defined as acts of violence, detention, or depredation by the crew of one vessel directed against the passengers or crew of another ship. That definition clearly does not apply to the drug smuggling vessels currently being targeted. Even if it did, UNCLOS Art. 105 specifically calls for the “courts of the State” seizing and arresting pirates to determine the penalties for the offense. In 2011, a Somali pirate arrested for the attack on the M/V MAERSK ALABAMA was tried in U.S. courts and remains in a U.S. prison today.

36. Can force be used during law enforcement operations?

Yes, subject to a strict requirement of necessity when no alternatives are available. Force can be, and is, used in law enforcement operations against both drug smugglers and pirates. For non-lethal force, only the force necessary to compel compliance is authorized. This routinely includes warning shots across the bow of the suspect vessel and may include disabling fire intended to shoot out engines, steering gear, or control mechanisms as necessary to stop a fleeing vessel. Of course, deadly force aimed at individuals can be used if they open fire or otherwise present an imminent threat of death or serious bodily injury. 

What did we miss? Please send any additional questions to info@justsecurity.org.

The post Expert Q&A on U.S. Military Actions on Venezuela and Boat Strikes appeared first on Just Security.