Pete Marksteiner on “If ‘the law’ says we can’t decisively interdict drug boats, maybe it’s time to change the law.”
Today we introduce a new contributor, retired Air Force judge advocate Colonel Pete Marksteiner, who offers a philosophical and practical perspective on the ongoing controversy about the military’s anti-drug smuggling maritime operations.
Pete’s essay reminds me of the observation offered by the Nuremberg Tribunal: the “law is not static, but by continual adaptation follows the needs of a changing world.” And the world is changing. As the Economist recently pointed out ominously: “surging demand and…huge profits are powering a revolution in drug-sellers’ way of doing business.”
It added these grim statistics:
America’s president has identified a grave problem for the world, and his country in particular. The consumption of illicit drugs—particularly cocaine and synthetic opioids like fentanyl, often in combination—kills roughly 600,000 people every year. Many of those deaths are from opioid overdoses. These occur disproportionately in the United States, where people fall victim at about ten times the rate in the rest of the world.
Essentially, Pete argues that it’s imperative for the legitimacy of the rule of law that it operate in a way that protects people helpless in the face of enormously powerful drug cartels.
As promised here, I intend to supplement Pete’s argument with my own piece in the near future.
Here’s Pete:
If “the law” says we can’t decisively interdict drug boats, maybe it’s time to change the law
by Pete Marksteiner, Colonel, USAF (Ret.) Esq.
Over the last few weeks, I’ve seen a number of articles, social media posts and the like about the targeting of drug boats headed for the U.S. The fact that many of my former colleagues—mostly lawyers—are interested isn’t surprising. What is surprising is the tenor of many of their observations on the topic, which frankly comes across much more Jessica Star than Warren or Renquist.
Though reasonable minds may certainly differ about how “the law” technically applies to this situation, the moral outrage of those saying these actions are illegal and their accompanying doomsday-ish predictions seem more than a little misplaced.
Double Tap Disclaimer. I’ll say right up front that if somebody killed, or specifically ordered the killing of, a couple of shell-shocked dudes clinging to a sinking boat who were very clearly “out of the fight” specifically for the purpose of killing any “survivors,” and not to ensure the target of the attack, i.e., the drugs, were destroyed or some other reason that would seem closer to a legit targeting decision, I’ve got a problem with that.
That said, if we’re talking about the decision to target those boats in the first instance, which is where the discussion seemed to be boiling until news of the ostensible “double tap” surfaced, I’d suggest the issue is not—and should not be—nearly as offensive to U.S. policy as many have argued.
1. Definitions aside, the American body count is staggering.
Twenty years ago I was compelled, as part of a continuing “professional military education” requirement for officers in the armed forces, to read—and thereafter be tested on—all manner of articles, book chapters, white papers etc., about a growing danger.
That danger was described as geographically separated constituencies from around the globe who’d figured out how to leverage emerging technology (the internet) to essentially coalesce into serious threats against the United States’ economic and military power in ways that would eventually directly imperil the safety of our citizens here in the homeland.
We Saw This Coming. The prediction those military thinkers foretold years ago is today’s reality. The three most notorious, well-funded, and heavily armed drug cartels are widely considered to be the Sinaloa Cartel, the Jalisco New Generation Cartel (CJNG), and the Clan del Golfo.
All three are known for their “corporate” structure, sophisticated international logistics, including cross-border tunnels and submarines, and deep infiltration of government institutions.
Their annual revenues range from $3 billion to over $11 billion, with the upper end exceeding the defense budgets of Belize, Jamaica, and Guatamala, to name just a few. And with the largest of three cartels having an estimated 20K-40K members, they rival the end strength of the entire Guatemalan military, and exceed that of Jamaica, Belize and El Salvadore combined.
Though the cartels have no traditional “Air Force” to speak of they possess hefty military-grade arsenals, armored vehicles, boats, modified drones for surveillance and attacks, and much more.
There appears to be no disagreement among officials from across the political, military and law enforcement spectrum that the raw materials for the deadliest of the drugs pouring into the U.S. are manufactured in China, not exactly an ally of the U.S.
The raw materials are then refined and turned into consumables by enormously powerful and sophisticated transnational cartels, who methodically and covertly disperse it inside our borders, where cartel operatives meticulously manage the poison’s street level distribution for dizzying profits.
There also seems to be no disagreement among even the most polarized members of any political or philosophical stripe that fentanyl is the primary poison responsible for the deaths of 71,768 Americans in 2021, 73,838 in 2022, and 72,776 in 2023, the last year for which CDC stats have been finally compiled.
To put those numbers in perspective, that means “bad guys” (though not specifically declared “military adversaries”) from outside the US have created and executed a process that’s killed 13K more Americans every single year for at least the last three years than all the soldiers, sailors, airmen and marines killed during the entire 9-year Viet Nam conflict. Put another way, that’s over 500 Boeing 747’s full of dead people.
2. The debate about legal forests obscures practical implications of trees.
More than a few colleagues with whom I’ve exchanged correspondence or discussed this issue have done what good advocates do—ticked off pedagogical terms like “narco-smugglers” versus “enemy combatants,” as though the invocation of one or more insider expressions summarily ends the debate. In this case it doesn’t.
To those commenters I’d simply ask “what’s the meaningful difference between enemy combatants and narco-smugglers from a purely objective standpoint if we consider the gravity of the wound visited on our nation and its people by a wrongdoer?
Taxonomy and labels aside, what we’re talking about is nothing less than double the number of dead Americans over the last three years than the population of most counties in the U.S.
If the interconnected efforts of foreign state actors and transnational drug cartels with economic and military power exceeding that of half the planet’s sovereign nations combine to interject lethality inside our borders in jaw dropping numbers, I simply suggest the distinction between “narco-smuggling criminals” and “enemy combatants” is a meaningless anachronism in this context that operates exclusively to the benefit of those profiting from American deaths.
Political Purpose Requirement. Others argue that use of military force, as opposed to law enforcement resources, is only permissible if “violence is used to achieve some political purpose, whether it be gaining control of territory or challenging lawful state authority.” Attacking Drug Boats: Bending or Breaking the Law?
From a purely common-sense perspective, it seems incomprehensible to suggest “the law” prohibits the U.S. from using military resources to stop the deaths of an Airbus A-320’s passenger compliment every single day if the wrongdoers are primarily motivated by profit instead of overthrowing some authority or capturing territory.
Intent Of The Hostile Actor. The authors of the article cited above also argue, “[w]hile not discounting the harmful or deadly effect of illegal narcotics, chemical substances, even when illegally introduced into the United States, do not amount to an armed attack the way flying commercial jetliners into skyscrapers packed with civilians did. It is its use as a weapon to conduct an attack—meaning an intentional act of violence—that matters.”
They go on to say “Were a non-state armed group attempting to attack the U.S. homeland with a chemical or biological weapon the invocation of self-defense would be both essential and justified. However, asserting drug smugglers posed an identical threat as chemical warfare is a gross distortion that fundamentally misrepresents the threat posed by such weapons used during World War I, by Iraq in the 1980s against Iran and its own Kurdish population, and most recently by the Syrian government against its own people.”(emphasis added).
Let’s look at what constitutes a gross distortion or fundamental misrepresentation of the threat. According to the CDC’s best numbers as of two years ago, fentanyl had claimed the lives of over twice the number of people killed by chemical weapons in WW1 and in Iraq’s use of such weapons against Iran, 42 times the number of Kurds killed by the Iraqis, and 110 times the death toll the Syrian government inflicted on its own people.
Although fentanyl is certainly not “as deadly” as military grade chemical weapons, it is 50 times more potent than heroine and 100 times more potent than morphine. The numbers don’t lie; the stuff is lethal, and everyone—including the Chinese and the cartels—knows it. Accordingly, I’d suggest, the line between “intentional killing” and “wanton disregard for profit” hardly seems a justifiable differentiator in these circumstances given the stakes.
One former colleague said, in response to my position, “If this is your view of what America stands for, then let’s take it to the next logical level. Let’s kill overseas cyber-criminals, cryptocurrency fraudsters, and intellectual property thieves. Label them “cyber-terrorists,” “crypto-terrorists,” “IP terrorists” and forget about the Rule of Law.”
In response, I’d say, “If an overseas cybercriminal, fraudster or intellectual property thief’s actions will cause the deaths of hundreds of thousands of Americans, whether to effect political change or solely for profit, not only should we prevent such action with decisive force, but that the “rule of law” should not prevent us from doing so.
Given the seriousness of the threat, dogmatic adherence to a legalistic catechism requiring the U.S. to observe all the same due process protections to those we accord to a U.S. citizen who boosts a toaster from a Target store is not only patently unreasonable, doing so would most certainly open up our citizens to an ever expanding tsunami of threats.
That same colleague asked, if you approve of these sorts of actions, then “what do we stand for?” That’s lofty oratory, but my simple answer is this: I think we should stand for the proposition that any nation, constituency, association or individual who undertakes a course of action intended to profit from the deaths of hundreds of thousands of Americans should absolutely be faced with the stark realization that if America catches him or her doing so, he or she will be deprived of the one thing that cash-flush cartels cannot replace—his or her life.
We will impose that sanction with neither celebration nor remorse, but most importantly—without hesitation. If nobody’s willing to drive the boats, we plug this hole. Will other leaks pup up? Certainly, but you fix what you can, then move on to the next threat.
3. Sorites Paradox.
Sorites Paradox is an ancient philosophical puzzle illustrating the complications that arise when one attempts to apply logic to a problem defined with imprecise language. The paradox is typically presented as a linear chain of propositions, the logic of which is sound at each individual step, but that eventually leads to an absurd conclusion.
It’s also known as the paradox of the heap (of sand), which goes something like this: If one adds a single grain of sand to 10 grains already on the ground, that single additional grain does not a heap make. The same is true if one adds a single grain to 50, and so on, and so on. At some point there’s an awful lot of sand, but there’s a perfectly reasonable sounding argument to be made that “surely a single grain does not turn a non-heap into a heap.”
I don’t claim to be an International or Constitutional law expert, but anyone familiar with appellate litigation has seen firsthand how the law of the land, which evolves by incremental grains of stare decisis sand over time, occasionally leads to results that seem pretty absurd to “non-experts.”
At one point or another, everyone’s talked—or heard others talking—about how counterintuitive it seems that if in the middle of the night you shoot a home invader in your living room with a violent history of hurting other people, there’s a very real chance you may end up paying all his medical bills and go to prison for your actions.
That’s what happens when smart people with good vocabularies and advocacy training dig into issues with which they profoundly disagree, even if for primarily moral—as opposed to logical–reasons. One by one, ideological grains of sand are added to a reasonable sounding proposition in the abstract, so much so that “the law” can change profoundly over time.
We’re seeing the result of this scenario manifested in almost all of the loudest arguments of the day, from biological men in women’s sports, to decriminalizing crime, to establishing sanctuary cities. Perhaps most alarmingly, “experts” in prominent academic, social, and political circles are now comfortable arguing the First Amendment protects the right of agitators wearing the garb and waving the flag of one of the world’s most notorious terrorist organizations, to intimidate Jewish college students on American campuses while shouting “I am Hamas” and “Death to America!”
As Americans, we’re proud to talk about having a legal system that favors the acquittal of ten guilty people over the conviction of a single innocent person. Though I must say as a former criminal attorney, victims and their families don’t always share that sentiment. In the same way, I think Sorites Paradox influences how law changes over time, and how, as a result, we can find ourselves in the position we’re in today regarding the drug boats.
There are numerous legal references in treatises, treaties, international agreements, the Law of War, the UN Charter and other sources being invoked by the intelligentsia to characterize these attacks not only as technically illegal, but as morally wrong “extra judicial killings.”
Sounds scary. But what if the number of our dead went from 70,000 per year to 700,000, or 7,000,000? At what point, if there is one, does the killing of lots and lots of Americans, a principle that might be alternatively described as “maximizing casualties,” become the metaphorical grain of sand that turns this “criminal enterprise” into an asymmetrical aggression meriting a military response?
4. No “Legal Truth” About This Issue
There is a pronounced division of opinion on the issue of the legality of these strikes. I readily admit the majority says they are illegal in one form or another, but every five-four SCOTUS split stands for proposition that there are few—if any—objectively verifiable legal truths–only majority opinions.
And those opinions frequently change over time as societal norms, technology, and thinking evolve. Historically speaking, the majority of Americans accepted as perfectly normal at one point or another in our history all sorts of stuff we now consider manifestly embarrassing and morally objectionable.
Big thinkers on operational law matters have for years written about the “grey area” that exists between military aggression and bad acts that look more like criminality, and the importance of considering the latter in the larger context of the “effects” those acts eventuate.
On the micro level, one could say that China has no control over what buyers of their chemicals do with those chemicals, thereby ostensibly insulating China from accusations of “proxy” this or “asymmetrical” that.
But on a more macro level, China has already traded a promise to exercise greater control over fentanyl precursor chemicals to negotiate more favorable treatment in trade with the U.S. than it otherwise would have been able to if not for its involvement in the attenuated kill chain.
If the letter of the law prevents military intervention in situations like this one, it’s time we revisit how we define aggression that justifies a military response. As the quest for better and better Artificial Intelligence moves from a race for profit to a race for power, the need to do so will become monumentally more acute in the very near future.
In the meantime, the military interdiction of deadly poisons on the way to hundreds of thousands of our friends, neighbors and loved ones seems, at least to me, perfectly in line with a desire to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our Posterity.
About the Author
Colonel Pete Marksteiner, USAF (Ret.) served 24 of his nearly 30-year Air Force career as a judge advocate. After retiring from the USAF in 2016, he served another 7 years as the Circuit Executive and Clerk of Court for the U.S. Court of Appeals for the Federal Circuit.
The views expressed by guest authors do not necessarily reflect my views, those of the Center on Law, Ethics and National Security, or Duke University. See also here.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
