Release of two survivors of US strike against alleged drug smugglers raises more questions

A mistake played a major role in unraveling the Trump administration’s legally dubious efforts to ignore due process and send undocumented migrants to a brutal El Salvador prison. Specifically: the wrongful deportation of Kilmar Abrego Garcia.

Could it now be happening with another legally dubious and highly punitive Trump effort in Latin America?

We learned last week that one of the most recent Trump administration strikes on an alleged drug-carrying submarine in the Caribbean failed to kill two of the people aboard.

The situation has now cast a spotlight on the holes in the administration’s justifications for the strikes, which were already suspect. But now the dilemma over what to do with the survivors has crystallized that fact and injected the situation with new urgency.

Even some Republicans have questioned the legality of the strikes, and the events of last week could make it more difficult to move on — as Trump’s GOP critics have often been wont to do.

To recap: The administration, CNN has reported, scrambled to figure out what to do with the two survivors before deciding to release them to their respective home countries — Colombia and Ecuador.

Some have wagered that this shows these two men might have been innocent; the administration, after all, has not provided public evidence for its claims that its targets are “narco-terrorists.” And some people in the relevant Latin American countries, including the victims’ families and Colombian President Gustavo Petro, have called the Trump administration’s general claims about targets into question. Petro, for example, has said a Colombian killed in an earlier strike was a “fisherman” with “no ties to the drug trade.”

But even if these survivors did what the administration claims, the administration’s move to release them undercuts its claims about the conflict in the Caribbean. Releasing them is very difficult to square with the argument that the US government is engaged in a war with people who would do imminent harm to Americans.

Put plainly: If these people are so dangerous and engaged in what is allegedly warfare against the United States, how could they be released?

Trump claimed just this weekend that “at least 25,000 Americans would die if I allowed this submarine to come ashore.” (Trump hasn’t provided evidence for that statement, and the administration’s claims about such things are often hyperbolic.) If these men were engaged in the attempted mass killing of Americans, how in the world does the US leave holding them accountable to other countries?

“Dangerous enough to try to kill with military force but not dangerous enough to detain and prosecute via lawful methods …” summarized Harvard University law professor Jack Goldsmith, who led the George W. Bush administration’s Office of Legal Counsel.

We don’t know the full details of the legal justification the administration is using, because it won’t publicly release it. But we do know that it is effectively claiming war-like powers to target the alleged drug vessels — despite the lack of a congressionally declared war.

The benefit of releasing these men instead of detaining them appears to be in the legal process.

Despite widespread concerns about the potential illegality of the strikes, to date there doesn’t appear to have been a legal basis to challenge them in court. That could have changed if the men were detained.

If the United States attempted to try the survivors in US civilian court, the administration would have to prove that they engaged in the activities they are accused of. That would mean the administration would actually have to pony up the evidence it has declined to publicly release.

As The Washington Post reported in an extensive look at the situation Monday, many experts are skeptical about the administration’s claims that these vessels are trafficking fentanyl that could kill Americans. The area where the strikes are being carried out isn’t ordinarily used for that purpose, The Post reported, and the drugs seized there aren’t usually headed for the United States.

The administration could also have held the survivors as wartime detainees at Guantanamo Bay in Cuba. But at that point, legal advocates could challenge the legality of their detentions by invoking the right of habeas corpus. That would have forced courts to finally reckon with whether this is really the war the Trump administration claims it is.

The administration appears to have decided it simply doesn’t want to deal with those legal headaches — for whatever reason.

But that, in and of itself, is extraordinary. It would seem that, to avoid a legal process, the administration has decided to leave punishing the alleged would-be mass killers of Americans to other countries. Colombia’s president, in particular, doesn’t appear to be on the same page as Trump on such matters.

The issue hasn’t been a major point of emphasis for Congress as yet. The reasons for that appear varied. Congress is consumed by the government shutdown. Lawmakers might not want to look like they are standing up for alleged drug traffickers — just like Democrats were wary of looking like they were standing up for undocumented immigrants amid the Abrego case. And some senators who might have doubts about the strikes could be deferring to Secretary of State Marco Rubio, a former colleague whom they confirmed 99-0 in January and has led the charge in the Caribbean.

But the concerns have slowly simmered. Two Senate Republicans voted to halt the boat strikes earlier this month. A bipartisan group is looking at forcing another vote.

GOP Sen. Todd Young of Indiana recently said he was “highly concerned about the legality of recent strikes in the Caribbean and the trajectory of military operations without congressional approval or debate and the support of the American people.”

The Republican-controlled Congress basically has to be dragged into action to check Trump these days. But the events of the past week may make the administration’s actions harder to ignore.