Drug Boats, Drone Strikes and the Dangers of Avoiding Mirrors

[Jessica Dorsey is an Assistant Professor of International Law at Utrecht University School of Law, an Executive Board Member of Airwars, and the Managing Editor of Opinio Juris.]

In a New York Times essay published last week, Jeh Johnson, General Counsel of the Department of Defense in President Barack Obama’s first term and Director of Homeland Security in his second, seeks to draw a clear and categorical distinction between the Obama administration’s targeted killing practices, and the Trump administration’s ongoing lethal strikes against suspected drug couriers in the Caribbean. Johnson argues that the current policy is “extrajudicial killing on the high seas — plain and simple,” fundamentally different from the counterterrorism operations conducted under President Obama.

His reasoning is underpinned by three arguments: first, that Trump has effectively and unilaterally declared war on Mexican and Venezuelan drug cartels without congressional authorization; second, that unlike al-Qaeda operatives hiding beyond the reach of law enforcement, drug traffickers are routinely apprehended and prosecuted through established legal channels; and third, that the Obama administration approached lethal force with deliberation, caution, and legal rigor, in stark contrast to what he characterizes as the Trump administration’s cavalier embrace of “maximum lethality.” Johnson underscores the internal checks, debates, and ethical constraints he believes defined the Obama-era process, and he calls on Congress to impose oversight, demand transparency, and confront the Trump administration’s deviation from both domestic and international legal constraints.

Johnson is right about the nature of the maritime killings. What the Trump administration is authorizing today, the deliberate targeting of people on fishing boats without due process, including a reported “double tap” strike on survivors attempting to cling to debris, is grotesquely illegal, morally indefensible, and corrosive to the rule of law. Because there is no recognized armed conflict between the United States and drug cartels, these operations are not governed by international humanitarian law but by international human rights law and law-enforcement paradigms, which strictly limit the use of lethal force. Under those standards, the intentional killing of suspected traffickers at sea, far from any hostilities and absent an imminent threat, constitutes an arbitrary deprivation of life. The core violation lies here in the abandonment of international legal restraints on the use of force outside armed conflict, a breach only deepened by the absence of domestic authorization. No act of Congress authorizes the United States to wage war on drug cartels, and the notion that military force should substitute for law enforcement marks a dangerous deviation from domestic constitutional governance.

But the tidy contrast Johnson seeks to draw between the two administrations is incomplete. And in this incompleteness lies a deeper risk: by overlooking the legal and procedural architecture built during the very years he now casts as exemplary, Johnson inadvertently weakens, rather than strengthens, the case against today’s abuses. Americans and the rest of the world deserve a full accounting of how we arrived at this moment, instead of a historically revisionist narrative that seeks to gloss over inconvenient truths. Restoring and respecting the rule of law requires more than condemning present abuses; it demands an honest reckoning with the legal and procedural choices made in the past, and the reflections these choices cast on the present.

The Precedent Problem: The Consequences of Stretching Legal Boundaries

Johnson correctly observes that the post-9/11 Authorization for Use of Military Force (AUMF) empowered presidents to target al-Qaeda and associated forces. That much is true. But over time, executive branch lawyers stretched this 2001 statute far beyond anything Congress contemplated. Through a combination of classified legal interpretations, expansive readings of “associated forces,” and a redefined and distorted understanding of imminence and self-defense, the AUMF morphed into a global permission slip for lethal operations, one that successive administrations have predictably wielded with increasing ease.

Crucially, no matter how broadly the U.S. interprets the AUMF or how expansively it designates individuals as terrorists under domestic law, statutory authority cannot override the superior constraints of international law. The UN Charter, principles of state sovereignty, and fundamental human rights norms impose binding limits on when and how force may be used, and these are limits that domestic legislation simply cannot displace. These legal expansions were not academic or abstract. They had real-world consequences, and some were catastrophic.

One example stands out: the December 17, 2009 strike in al-Majalah, Yemen. A U.S. cruise missile, laden with cluster munitions, killed dozens of civilians. Independent investigations, including those conducted by Airwars, have attributed the strike to U.S. forces. The Yemeni government falsely claimed responsibility, something we know because a leaked diplomatic cable records Yemeni President Ali Abdullah Saleh telling U.S. officials, “We’ll continue saying the bombs are ours, not yours.” His deputy prime minister quipped that he had just “lied” to parliament about it.

Accepting a foreign government’s false claim of responsibility for a U.S. strike that killed civilians is not the hallmark of transparent, rules-based, accountable warfare. It is an early example of the very erosion of norms that many civil society groups, legal scholars, and human rights experts warned would follow from an overly elastic interpretation of both domestic and international law.

The lesson here is not that the Obama and Trump administrations are identical. Let me be clear: they are not. But it is essential to acknowledge that once legal lines are blurred, future administrations, especially those less committed to being governed by the rule of law, will simply drive straight through them.

Process Matters, But It Is Not Enough

A major pillar of Johnson’s argument rests on process. In the op-ed, he emphasizes the deliberative rigor of the Obama-era targeting system: interagency meetings, legal memos, red-teaming exercises, debates with outside experts. He notes that he occasionally said “no” to proposed strikes. The reporting portrays these processes as genuinely deliberative and, often, quite serious. But process cannot be judged solely by those with access to the inside. Transaparency and accountability demand it is also evaluated by its external results, results which often diverged sharply from this internal narrative.

For years, the public heard that drone strikes caused minimal civilian harm and that each operation underwent some of the most stringent review processes in the history of warfare (evidenced here through one of Johnson’s own public speeches in 2012). Yet as independent investigators and journalists gained access to communities in Yemen, Pakistan, and Somalia, their findings repeatedly contradicted official claims. The most credible documentation often came not from the U.S. government but from NGOs, local researchers, and reporters who traveled to strike sites, interviewed witnesses, and painstakingly reconstructed events.

The Obama administration eventually released aggregate casualty figures, but these were incomplete and, in some cases, implausibly low. Crucially, the government declined to release strike-by-strike assessments that would have allowed independent verification. Meanwhile, when mistakes occurred, as they inevitably do in all situations of armed conflict, the mechanisms for acknowledging error and compensating victims were ad hoc, opaque, and inconsistent with the administration’s public commitments to transparency and accountability.

Though those of us who were not part of the administration will never know exactly what went on behind closed doors, Johnson is likely right that the Obama administration may have agonized privately over lethal decisions. But the moral weight of state violence is not borne solely in the mindset of decision-makers. It is borne in the actual lives lost, the communities traumatized, and the precedents set, regardless of how many internal meetings preceded the strike.

When You Bend a Rule, Someone Else Will Break It

The deeper danger in Johnson’s argument is not his defense of the legality of Obama-era operations. Many experts, scholars and practitioners have long debated those issues. The danger is that he portrays those years as a golden age of principled restraint, with the only flaw being that later officials failed to follow the same example. This framing serves to reverse cause and effect. It was precisely the normalization of cross-border killing that happened outside traditional battlefields, with limited transparency, extremely flexible legal interpretations, and extraordinarily limited accountability, that has made it easier for successors to treat lethal force as a flexible policy tool unconstrained by law.

This pattern is not unique to the targeted killing policies outlined above. Expansive surveillance authorities defended can, under one regime become the baseline for the next. Emergency powers used sparingly by one president risk becoming routine instruments for a successor. “Temporary” counterterrorism or wartime measures can take on institutional permanence.

For over two decades, scholars, experts and human rights advocates warned that unchecked drone warfare risked blurring the lines and even collapsing the distinction between war and peace, combatants and civilians, armed conflict and law enforcement legal paradigms. The maritime strikes ordered by the Trump administration represent precisely that collapse: the use of military force not against armed groups engaged in hostilities, but against suspected drug couriers on the high seas without any legal grounding or statutory authorization.

Once the use of lethal force is normalized beyond the boundaries of recognized battlefields, it is only a matter of time before a future administration shatters whatever constraints remain. That is precisely what we are seeing now. The proverbial chickens, it turns out, do come home to roost.

Honest Accounting Strengthens the Rule of Law Rather than Weakens It

None of this diminishes the urgency of confronting the Trump administration’s ongoing maritime executions. Johnson is absolutely right to call them extrajudicial. He is right to demand congressional oversight, the release of strike footage, and the declassification of the legal opinions that purport to justify these killings. These are essential steps, not optional ones.

But accountability is not a partisan weapon; it is a democratic necessity. Bolstered only through meaningful transparency, accountability underpins the very notions of the legitimacy of military targeting operations. And it begins with a clear-eyed reckoning with the history that shaped current practice.

If the architects of the post-9/11 lethal-force framework want to argue that today’s abuses represent a sharp break from the past, then they must first grapple honestly with the ways in which the past enabled the present. This is not about apportioning moral blame across administrations. It is about understanding how legal and policy choices (even those reportedly made in good faith) shape the landscape for successors.

International law is not a resource to be invoked selectively, when convenient, or when one’s political opponents cross clear lines. It is a long-term strategic asset. Undermine it in one decade, and it becomes far harder to rely on in the next. The United States cannot credibly condemn extrajudicial killings abroad while quietly relying on legal elasticity and secrecy at home. Nor can it hope to restore the rule of law by editing away the parts of history that reveal uncomfortable continuities.

To reclaim the integrity of international law, and to guard against its continued erosion, the first step is simple: we must look in the mirror. Not only at the latest reflection, but also, and perhaps more importantly, at the history that shaped it.