Under what legal auspices did the White House order Tuesday’s deadly strike on a speedboat off South America? More than 24 hours after the attack on what President Trump claims were eleven “Tren de Aragua Narcoterrorists…transporting illegal narcotics, heading to the United States,” military leaders still aren’t sure, or they’re not saying publicly just yet. 

“Pentagon officials were still working Wednesday on what legal authority they would tell the public was used to back up the extraordinary strike in international waters,” the New York Times reported Wednesday evening. 

“Instead of interdicting it, on the president’s orders, we blew it up,” Secretary of State Marco Rubio told reporters Wednesday when asked about the incident during a trip to Mexico City. It’s not clear from the incident video Trump shared that the U.S. military conducted any search of the boat it destroyed or the people it killed on Tuesday. 

Rubio on Tuesday: “These particular drugs were probably headed to Trinidad or some other country in the Caribbean.”

On Wednesday, he changed his story, telling reporters that the boat was headed for the United States but offering no evidence for this new claim. Rubio added that “the President, under his authority as Commander-in-Chief, has a right under exigent circumstances [which means a warrantless search] to eliminate imminent threats to the United States, and that’s what he did yesterday in international waters, and that’s what he intends to do” in the future. 

Trump on Wednesday: “We have tapes of them speaking.” To our knowledge, those tapes have not been released publicly. “In fact, you see it, you see the bags of drugs all over the boat, and they were hit,” he told reporters. Bags are visible in the video, but what’s inside them is not at all clear. What’s more, the Times reported, “A Defense Department official questioned whether a boat that size could hold 11 people,” as the Trump administration alleges. 

SecDef Hegseth: “We knew exactly who was in that boat. We know exactly what they were doing, and we knew exactly who they represented,” he said on “Fox & Friends” on Wednesday. He offered no evidence to support his claim.  

Capitol Hill reax: “The administration has not identified the authority under which this action was taken, raising the question of its legality and constitutionality,” said Rep. Adam Smith, D-Washington. The questions this episode raises, Smith added, are “even more concerning. Does this mean Trump thinks he can use the U.S. military anywhere drugs exist, are sold, or shipped? What is the risk of dragging the United States into yet another military conflict?”

Former Pentagon counsel Ryan Goodman effectively concurred with Smith, writing Wednesday on social media, “I worked at [the Department of Defense]. I literally cannot imagine lawyers coming up with a legal basis for [the] lethal strike of [a] suspected Venezuelan drug boat. Hard to see how this would not be ‘murder’ or war crime under international law that DoD considers applicable.”

Colombia’s President Gustavo Petro also said it looks like “murder,” writing on social media Wednesday, “If this is true, it is a murder anywhere in the world. We have been capturing civilians who transport drugs for decades without killing them.”

Notable: The U.S. War Crimes Act criminalizes murder, which is defined as the “act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.”

Dive deeper: Former State Department counsel Brian Finucane assessed several angles of the boat strike in an analysis piece published Wednesday in Just Security. He calls the attack “an unnecessary and performative use of the U.S. military,” and one “that is legally fraught at best,” similar to Trump’s decision to send U.S. troops into American cities like Washington, D.C., and Los Angeles. Here are a few more observations from Finucane: 

• “The use of lethal force was used in the first resort…to send a message. Such use of lethal force raises a number of distinct legal issues.”
• “Despite labelling the targets ‘narcoterrorists,’ there is no plausible argument under which the principle legal authority for the U.S. so-called ‘war on terror’—the 2001 Authorization for the Use of Military Force—authorizes military action against the Venezuelan criminal entity Tren de Aragua.”
• “Drug trafficking by itself does not constitute an ‘armed attack,’ nor a threat of an imminent armed attack, for the purposes in international law. Nor does drug trafficking represent the predicate for self-defense commonly recognized as required for the invocation of self-defense under criminal law in the United States.”
• “In my view, the U.S. attack on this supposed smuggling vessel constituted the introduction of U.S. armed forces into hostilities, triggering both the reporting requirements of the War Powers Resolution as well as its 60-day clock for withdrawing U.S. forces…U.S. armed forces were deliberately introduced into the situation with the U.S. president himself reportedly giving the order to ‘blow up’ the supposed smuggling vessel.” Read Finucane’s analysis in full, here.  

Update: The U.S. dispatched another guided-missile cruiser to the waters around Latin America. That would be the Navy’s USS Lake Erie, which was spotted four days ago entering the Caribbean from the Pacific Ocean, via the Panama Canal. 

Already in the region: The Wasp-class amphibious assault ship Iwo Jima and the San Antonio-class amphibious transport dock ships San Antonio and USS Fort Lauderdale. Those “are operating off the coast of Puerto Rico as sailors and Marines from the 22nd MEU take part in an amphibious landing training exercise on the southern part of that island,” Howard Altman of The War Zone reported Wednesday. 

There are at least four more warships nearby: USS Gravely, USS Jason Dunham, USS Sampson, and the fast attack submarine USS Newport News. 

What may lie ahead: “Anyone else trafficking in those waters who we know is a designated narco-terrorist will face the same fate” as the four-engine speedboat, Pentagon chief Hegseth told “Fox & Friends” Wednesday. “It’s important to the American people to protect our homeland and protect our hemisphere.” 

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Welcome to this Thursday edition of The D Brief, a newsletter dedicated to developments affecting the future of U.S. national security, brought to you by Ben Watson with Bradley Peniston. Share your tips and feedback here. And if you’re not already subscribed, you can do that here. On this day in 1998, Larry Page and Sergey Brin founded Google. 

The future of the National Guard

After objections in Illinois, Trump says he could send National Guard troops to New Orleans, where the state’s governor is also a Republican, like Trump. “We’re making a determination now, do we go to Chicago, or do we go to a place like New Orleans?” the president told reporters Wednesday. 

Louisiana Gov. Jeff Landry replied: “We will take President [Trump]’s help from New Orleans to Shreveport!”

For the record: “Landry doesn’t have to wait for Trump if he wants National Guard troops in New Orleans,” the Wall Street Journal reports, citing law professor Steve Vladeck. “The governor can just call out the Louisiana national guard to perform whatever services are necessary. There’s no need for federal intervention,” Vladeck said. 

Background: Trump’s use of National Guard and Marines in Los Angeles this past June violated the Posse Comitatus Act, a federal judge said Tuesday in a 52-page opinion (PDF). The “defendants instigated a months-long deployment of the National Guard and Marines to Los Angeles for the purpose of establishing a military presence there and enforcing federal law…There were indeed protests in LosAngeles, and some individuals engaged in violence. Yet there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law.” 

“Such conduct is a serious violation of the Posse Comitatus Act,” he wrote, and warned, “Los Angeles was the first US city where President Trump and Secretary Hegseth deployed troops, but not the last.” 

Update: About 140 unmarked vehicles have entered the largest military installation in Illinois, Naval Station Great Lakes, located just north of Chicago, the Sun-Times reported Wednesday. Officials are also hoping to “establish a no-fly zone to keep away news helicopters and drones that aren’t already prohibited from flying in the area.”

Context: “Trump highlighted a surge in gun violence in Chicago over the weekend, framing himself as a savior who can quickly solve an intractable problem,” the Sun-Times reports. But “The deployment, and threats of the National Guard, come as a WBEZ analysis has found that a three-month summer span saw the fewest murders in 60 years in Chicago while overall violent crime remained near its lowest point in at least four decades.”

Additional reading: 

• “What We Lose by Distorting the Mission of the National Guard,” via National Guard veteran Christopher Purdy writing Sunday for The Atlantic;
• And read about “The National Guard soldier pissed about Trump’s DC takeover,” via Mother Jones, reporting Wednesday. 

Industry

The jets were late. Lockheed got on-time bonuses anyway. The maker of F-35 jets is getting paid for on-time delivery, even though it’s not delivering the aircraft on time and without the required upgrades, a government watchdog agency said. “The F-35 program office compensated Lockheed Martin with hundreds of millions of dollars of performance incentive fees while the percentage of aircraft delivered late and the average days late grew,” according to a new report from the Government Accountability Office. Defense One’s Audrey Decker has more, here. 

The infantry is getting AI tools to spot incoming threats, the Wall Street Journal reports off a $98.9 million contract between the U.S. Army and TurbineOne, a four-year-old San Francisco startup. “TurbineOne’s software runs on soldiers’ laptops, smartphones and drones, eliminating the need for a steady cloud connection. The AI application equips individual soldiers with the ability to quickly identify enemy threats, such as a drone-launch site or concealed troop position, and the context needed to decide how to respond without relying on analysts sitting miles away.” Read on, here.

Additional reading: “Oak Ridge is using diamonds to marry quantum, classical computers,” our sister site Nextgov reported Wednesday. 

China’s military parade

Chinese leader Xi Jinping staged a giant military parade that marked the public debut of several new weapons. Washington Post: “China’s ambitions to rival the United States militarily—and gain the edge in a potential war over Taiwan—were laid bare Wednesday when Beijing displayed a breathtaking array of advanced new weaponry…” Among them were a new ICBM, a light tank, 65-foot unmanned submarines, and more.

Find the Post’s multimedia list of the new arms on display, here, and another one from the New York Times, here.

Salt Typhoon update: China’s “unrestrained” hacking group may have stolen information from nearly every American, officials said. “I can’t imagine any American was spared given the breadth of the campaign,” Cynthia Kaiser, a former top official in the F.B.I.’s cyber division, who oversaw investigations into the hacking, told the New York Times. Read on, here.

Related reading:

• “‘Front runner’ to be North Korea’s next supreme leader makes international debut in China.” It’s Kim Jong Un’s daughter, Ju Ae, reports Reuters.

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