Donald Trump bulldozed the East Wing of the White House this week, so that he can build a ballroom with a footprint nearly twice the size of the existing White House, financed by blatant graft. The White House is not Trump's property, and his proposed ballroom will undoubtedly be just as hideous and appalling as everything else geared to his hideous and appalling tastes, but there's not much question over whether the president has the license to do this: He does. It just sucks that Donald Trump's the guy using it.
Also this week, the U.S. military, acting under Trump's orders, attacked two civilian speedboats in the Eastern Pacific ocean, killing everybody aboard both vessels. These were at least the eighth and ninth such attacks the U.S. has carried out in the past eight weeks or so; at least 37 people have died in these attacks, at least some of which occurred in international waters. In no instance has the military, the Department of Defense, or the Trump White House offered any formal public case against any of these people beyond the unsupported assertion that they were drug traffickers headed to the United States.
The reasoning, Trumpily chintzed down from that offered as justification for George W. Bush's War on Terror, goes something like this: These are drug traffickers; the cartels they work for are essentially "paramilitary" enemy forces attacking the United States, only with drugs as their weapons instead of guns and bombs; the president has the authority to make war on parties attacking the United States; and since the United States is at war with them, it is free to kill them whether they are in its territory or not—the same way American soldiers got to kill all the Germans they wanted at the Battle of the Bulge, instead of trying to arrest them.
This would be easier for some number of Trump's critics to oppose had they not defended or shrugged at Barack Obama's use of drones to kill some 3,800 people overseas during his presidency. Even if you buy Trump's reasoning, though—and I think you should not!—it hinges on the victims of Trump's strikes actually being drug traffickers. The administration has made no good-faith effort whatsoever toward establishing this. You are expected to accept the fact of the boats' occupants having been killed by the most flamboyantly anti-competent administration in American history as all the proof you need that they were bad guys. You are expected, that is to say, to be a fucking idiot.
Not that definitive proof of the claim would get anybody off the hook, mind you. Summary execution has never been a lawful response to suspected drug trafficking; cops cannot (yet) lawfully gun down anybody they suspect of being a drug dealer. And the idea that the U.S. president may just unilaterally declare war on anybody on a basis as flimsy as "is in a boat, in the Western Hemisphere" and then unilaterally order their killing is at the very least super duper fucked-up (not a legal term).
Mainstream media coverage of these attacks (and please believe me that I could have cited many more examples than the one in this sentence, but it was just too horribly dispiriting), wherever it doesn't just straight-up launder the administration's baseless claims into the headline, tends to take a particular ghoulish and familiar shape, once it has moved past reciting the figures and quoting Defense Secretary Pete Hegseth's statements. The previously non-existent question of whether the president has unilateral authority to do obviously lawless shit (of course he doesn't!) must first be invented, and then fretted over. This practice dates back at least as far as the War on Terror, which the nation's biggest media outlets spent donating legitimacy—or at least a helpful haze of make-believe uncertainty—to the administration's plainly cynical, half-assed arguments for the legality of torture, imprisonment without due process, and a host of other abuses.
The Free Press, newly representative of that strata now that its editor-in-chief also runs CBS News, provided a handy example on Thursday, with a piece by Yale Law School professor Jed Rubenfeld titled, "Trump's Been Bombing Boats in the Caribbean. Is This Legal?" and subtitled, "I thought the answer was an obvious no. It turns out to be much more complicated."
In terms of its true purpose, the article itself is somewhat superfluous from the point it purports to raise. The FP's goal is not to inform readers about the lawfulness or unlawfulness of Trump's murder spree, but precisely to confuse the question and portray it as unresolvable—to lay a path away from the plain conviction that these are extrajudicial murders, toward the bewildered acceptance that they're probably OK, or anyway too complicated to, say, impeach somebody over. Think of the actual text of Rubenfeld's article as a mop-up action, riding in to mow down anybody still unconvinced of the supposedly impenetrable legal ambiguity of drone-striking a random speedboat full of people from another country in international waters with no warning.
Taxonomically this is not quite the same maneuver as, say, the New York Times refusing to get off the train at the station to which the facts of its own reporting have brought it, and just proudly riding the circuit around in loops for a decade, out of a conviction that the savvy are known by their stern expressions and the perfect marble smoothness of their brains. The Free Press's readership is somewhat more honest in its allegiance, and they aren't looking for reassuring quantum uncertainty so much as for the most nakedly cynical conceivable bullshit to fling, with a sneer, into the faces of Trump's critics; "Jed Rubenfeld is a professor of constitutional law at Yale Law School" would probably suffice for them. But the phenotype of this work is virtually identical to the Times': a hem here, a haw there, a theatrical brow-wrinkling, an utter abdication of critical reasoning, and at the end of it all, hands thrown up to declare the epistemological unknowability of, like, anything.
The question then becomes: Are these air strikes clear and obvious acts of murder under ordinary criminal law?
The answer is no. Not because Trump has designated Tren de Aragua as a terrorist organization, but because ordinary criminal law does not apply if a state of war exists. Instead, a whole other legal paradigm—the law of war—kicks in. Under the law of war, a sovereign can do many things that would be illegal under ordinary law. Including killing people.
But wait—surely we're not at war in the Caribbean, are we?
For legal purposes, we might be. A notice sent this month by the administration to Congress (a copy of which is reportedly here) states that the president has determined that we are in "armed conflict" with "non-state" "paramilitary" drug cartels engaging in an "armed attack against the United States," "caus[ing] the deaths of tens of thousands of American citizens each year." And under long-standing Supreme Court case law, this determination may be conclusive.
In total here, Rubenfeld's argument is as follows: The question of the legality of summarily slaughtering all aboard a non-military boat in the Caribbean Sea is complicated by the very guy who'd bear responsibility for that crime saying that it's OK for him to do it. In other words, the FP commissioned an entire blog to say "When the president does it, that means it is not illegal." Those old enough to remember the Bush presidency may get a flashback to the argument that the United States does not torture, and therefore whatever it does to the people it disappeared without trial into its global network of black sites is by definition not torture.
Again: The objective of this crap is not to mount a convincing affirmative argument for the lawfulness of Trump's tropical murder campaign. That kind of definitive claim-making is professionally unbecoming for establishment journalists and pundits, and anyway it's not actually possible to make one. It's the classic "Gotta hear both sides" gambit: The legal status of any presidential action must necessarily reside at some unknowable point between those saying it's a crime and those saying it's not. (The fun is in pretending not to know this is a binary and not a spectrum, and thus that any argument for the issue's uncertainty is, in effect, no different from a plain assertion that summarily killing people is not a crime.) Rather, the objective is to bait the public into switching off its moral faculties, by presenting its members with a bewildering swamp: impenetrable legal opinions, unverifiable summaries of classified memos, the eely slipperiness of the terms. Looks pretty murky to me. Are you sure you're qualified to find the answer in there?
For all practical purposes, this is a game. The discourse's approved participants dance just beyond the reach of ideas like morality, checks and balances, and due process, vamping and winking and taunting, speaking power to truth, pumping the ol' sophistry muscles lest they atrophy, sea-lawyering against the very idea that in the United States the law, and not the president, is sovereign. The administration gets another welcome layer of obfuscating smog between its actions and any hope of accountability for them. Meanwhile the men presently deciding which boats full of people to vaporize with missiles have neither any idea about the laws they might be breaking nor the least sense that they are constrained by any laws at all. Who could contradict them? Laws that cannot be applied to the real world in effect do not exist.
To wit: "I don't think we're gonna necessarily ask [Congress] for a declaration of war," Trump said on Thursday, about actions he has justified by claiming that the United States is at war.
"I think we're just gonna kill people that are bringing drugs into our country, OK?" he said, regarding the killing of people who are only known to have been riding in speedboats many miles away from our country. "We're gonna kill them. They're gonna be like dead."
A simple question I would like posed to the respectability press's Law Knowers, performatively Not Knowing whether this or that act of authoritarianism by Trump falls within the president's lawful purview, is this: What can't the president do? Is the law clear on there being any limit to his authority? Is there any naked power grab, any unilateral act of imperial death-dealing, any scheme of blatant corruption the illegality of which he could not successfully complicate by simply declaring that, actually, he's allowed to do it?
Now that Donald Trump has assumed Congress's authority to declare war; now that he has usurped Congress's power of the purse; now that he can deploy masked agents to kidnap people off the street and disappear them to anyplace in the world without due process; now that he can deploy the U.S. military against American cities; now that he can claim for himself the power to fire the heads of independent agencies; now that he can hound and coerce even private universities into remaking themselves as he sees fit; now that he can accept bribes from foreign governments and use the presidency to enrich himself; now that he can turn the justice system on his personal enemies; now that he can grant himself a legal basis for slaughtering other nations' citizens outside of American jurisdiction on grounds that he himself says it's OK ... what can't he do?
Or, rephrased slightly, to make it a separate but related question about the state of the American media: Could he do anything Jed Rubenfeld wouldn't defend?
