Congress must be engaged as Trump pushes boundaries on military force

The Trump administration is engaged in unprecedented disruption. Some policy reforms were needed and some were demanded by his supporters. The consequences and endurance of those changes will be decided at the ballot box. Several recent actions, however, are such an extreme departure from bedrock national traditions and legal norms that the scrutiny must be immediate and sustained.

VENEZUELAN BOAT ATTACKS

On Friday, U.S. military drones destroyed a fourth Venezuelan boat in open seas,  with the total death toll now at 21. Trump and Secretary of War Pete Hegseth both posted videos of the explosion, with the president saying there were enough illegal narcotics on the boat to kill "25 to 50 THOUSAND PEOPLE."

The latest attack came days after Pentagon officials met with U.S. senators questioning the legal authority for the attacks and what evidence supports the claims that the drug trafficking fit the definition of a threat to national security.

After the first of three drone attacks in September, Sen. Rand Paul, a Kentucky Republican, said, "It isn't our policy just to blow people up," and most experts said it was illegal because Congress has never authorized an armed conflict with drug cartels.

The White House later circulated a bill it drafted that would give a president wide powers to label drug cartels as state-sponsored terrorist organizations in order to legalize use of lethal force against them and any nation that harbors them.

That's an admission the administration didn't have the authority in the first place. 

The bill, however, didn't gain any traction, so instead the Pentagon told Congress that Trump had unilateral ability to use the military because it had designated drug cartels as "unlawful combatants" and "terrorist organizations" and declared that drug trafficking constituted "an armed attack against the United States." After senators of both parties pushed back on those justifications, the Pentagon launched the fourth attack in seeming defiance.

An aggressive fight against drug traffickers needs to be waged. But this is another example of the dangerous overreach of presidential authority to circumvent the constitutional role of Congress to declare war.

DOMESTIC USE OF FEDERAL ARMED FORCES

Last week, in an address to a stunned and stone-faced audience of top military officials, President Donald Trump outlined his plan to use the military to fight perceived domestic enemies. "We're under invasion from within, no different than a foreign enemy, but more difficult in many ways because they don't wear uniforms," said the commander in chief.

Trump's decision to order U.S. Marines and California's National Guard into Los Angeles in June has been declared illegal by a federal judge, who said permission of the state's governor is needed. Oregon is now seeking a court order to stop the deployment of soldiers in Portland.

The Tennessee National Guard, whose activation the state's governor approved, is walking the streets of Memphis. "You are unleashed," White House deputy chief of staff Stephen Miller told officers Wednesday. Trump still insists he will activate soldiers for Baltimore, Chicago and New York. "We’re going to straighten them out one by one," he told the gathering of generals about his plan to use the National Guard in major cities.

The laws governing National Guard deployment to police civilian populations, as opposed to responding to a natural disaster or an emergency, are complex, and the Trump administration's moves expose many untested and unclear situations. Trump claims he has the latitude to take emergency action because local law enforcement cannot control crime in many cities or prevent protesters from interfering with arrests made by U.S. Immigration and Customs Enforcement.

But this nation has a strong tradition of limiting domestic use of the military, and the deployment of uniformed soldiers with weapons, patrolling the streets of major cities.

Trump's desired war against his perceived enemies from within is one he should not get to wage.

INVESTIGATE CRIMES, NOT PEOPLE

Trump crossed a very bright line in demanding that the Justice Department prosecute his political enemies. The president has made clear to the FBI and to his Attorney General Pam Bondi who he wants in the crosshairs. The first such prosecution prompted the firing of a highly regarded U.S. attorney in eastern Virginia who saw no evidence for an indictment of former FBI Director James Comey. The indictment that followed is so flawed, it is unlikely to survive. Using the Justice Department this way satisfies only Trump's desire for revenge. 

The attorney general always treads a difficult but clear path both as a loyal counsel and as someone who must be a guardian of the Justice Department's independence from White House manipulation. Criminal charges should never be about vendettas or targeting political opponents. 

Robert Jackson, a former Supreme Court justice and chief prosecutor at the Nuremberg war trials, famously explained that prosecutors should target crimes, not individuals. "It is in this realm ­in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies," said Jackson in 1940, when he was attorney general.

The Trump administration's effort to bulldoze established boundaries for the use of military force and prosecutorial powers could be its most consequential legacy — and one that will weaken the nation. Stopping it now falls to Congress and the federal courts.