This line of questioning gained urgency after the top military official overseeing the bombings, SouthCom commander Alvin Holsey, abruptly stepped down last month. The lack of any public explanation led some Democrats to raise the possibility that Holsey sees the bombings as unlawful, a case made by many legal experts.
This memo, reports The New York Times, was drafted by Justice Department lawyers to justify the strikes. It says that the United States is embroiled in an armed conflict with drug cartels. To buttress this idea, per the Times, the memo loops back on itself by relying on the White House’s own declarations to that effect as its key evidence.
As the Times delicately notes, administration lawyers have “accepted at face value the White House’s version of reality.” It’s circular reasoning, of course. But I want to highlight another revelation about the memo, per sources who have seen it and who spoke to the Times:
In other words, administration lawyers appear to be preemptively laying out arguments for why people down the chain of command are acting legally in carrying out these orders. Where does the need for this extra step come from, exactly?
“It is highly unusual to say in it that ‘we’re going to give legal protection for these actions,’” Smith told me.
“They think that what we’re doing is illegal,” Smith said.
“It signals a fear that what they’re doing is illegal and that they could possibly be subject to criminal action under U.S. law and under international law,” Smith told me. He added that administration lawyers may be looking at Trump’s bombings and saying, in effect, “Damn, we are really pushing the envelope here. We’d better do something a little extra special to protect our people.”
On top of all that, there’s already plenty of evidence that some of these boats might not even be trafficking drugs to the U.S. in the first place. But now this memo is leading us even deeper into Trump’s hall of mirrors by effectively claiming this evidence exists because the White House says it does. And anyone who is carrying out these orders should rest assured: The orders are legal. After all, the memo says so.
But nonetheless, there’s another way to look at this. It provides an opening for Democrats to now step up and try to establish why this memo’s added assurances were written in the first place. Do those carrying out the strikes fear they are acting unlawfully, and did that make the lawyers take this extra step?
Democrats should grab onto this. Recall that Democrats have sought testimony from Adm. Holsey about why he resigned. The Pentagon has said he won’t testify, and Republicans who control the Armed Services Committee apparently are not pushing for it, as they surely don’t want to see him asked if he believed the strikes Trump is demanding are illegal. But if Democrats win the House, they can get to the bottom of all of this.
But Democrats can say this much: Are you really sure you want to trust Donald Trump, of all people, when he tells you that what he’s directing you to do is lawful and that you’ll be protected later as a result? That’s a pretty tenuous position for anyone to put themselves in—and Democrats should not hesitate to say so.
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