The United States now has a Department of War (again).
But are we at war?
That’s the question after the U.S. military killed 11 people last week in a strike against a boat in the Caribbean the Trump administration said was carrying drugs and terrorists. The vessel was said to be operated by the Venezuelan gang Tren de Aragua.
The attack yielded this extraordinary sentence in a New York Times report: “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 strike occurred last Tuesday, which means the Defense War Department moved forward with the operation before it had come up with a legal rationale.
It’s not hard to see why it might have taken so long. Under the Constitution, only Congress has the power to declare war, and lawmakers have not declared war against Tren de Aragua. Sometimes, Congress will grant the president permission to conduct military operations without issuing a full declaration of war, using a legal tool known as an authorization for use of military force, or an AUMF.
Probably the most famous (and versatile) AUMF was the one approved by Congress in 2001, seven days after 9/11, which has been used by recent presidents to justify counterterrorism operations in no less than 22 countries. Tren de Aragua is a Foreign Terrorist Organization (FTO), according to a designation by the Trump administration in February, but that label does not by itself wedge operations against the group into the 2001 AUMF. (The FTO label is primarily about unlocking the possibility of financial sanctions or immigration restrictions.)
The 2001 AUMF allows force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Tren de Aragua was founded in 2014, long after 9/11, and played no role in the attack.
Without a congressional declaration of war or AUMF, the president is left only with the vague powers given to him by Article II of the Constitution, which says that the president “shall be Commander in Chief of the Army and Navy of the United States.” Indeed, by Thursday, the White House had settled on using this nebulous authority as its justification for the Caribbean strike.
In a letter to congressional leaders — required by the War Powers Resolution of 1973, which requires that the president notify Congress within 48 hours of introducing service members into “hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances” — Trump said that he directed the strike “pursuant to my constitutional authority as Commander in Chief.”
Trump’s letter did not name Tren de Aragua specifically, referring only to a “military action taken on September 2, 2025, in the Caribbean sea to combat the threat posed by “extraordinarily violent drug trafficking cartels” that stand accused of “causing the deaths of tens of thousands of United States citizens each year and threatening our national security and foreign policy interests both at home and abroad.”
A bipartisan briefing to give more details to congressional staffers, scheduled for Friday, was abruptly canceled after attendees had already arrived.
The specific details of the strike, targeting suspected drug smugglers, are novel, but — in a presidency defined by unprecedented uses of executive power — this is a much more typical type of presidential power grab.
Presidents of both parties have loosely invoked Article II to carry out invasions, drone strikes, attempts to overthrow foreign leaders, and many other operations. Previous administrations have also offered assistance with targeting and killing drug traffickers, as noted by Professor Luca Trenta, an expert on state-sponsored assassinations. The limits of presidential war powers have rarely been tested by the courts or, in recent decades, constrained by Congress.
Taking advantage of the fact that Democratic politicians will likely be hesitant to criticize them — lest they be seen as defending drug traffickers — the Trump administration has shrugged off the legal worries. “Killing cartel members who poison our fellow citizens is the highest and best use of our military,” Vice President JD Vance wrote on X this weekend.
“Killing the citizens of another nation who are civilians without any due process is called a war crime,” one commenter replied.
“I don’t give a shit what you call it,” Vance responded.
Sen. Rand Paul (R-KY), one of the leading anti-interventionist voices within the GOP, joined in to condemn the VP’s rhetoric: “What a despicable and thoughtless sentiment it is to glorify killing someone without a trial,” Paul wrote.
The White House has suggested that further operations could be coming; according to CNN, Trump is even considering hitting targets inside Venezuela as part of a “much larger effort to rid the region of narcotics trafficking and potentially dislodge [the country’s leader Nicolas] Maduro from power.”
“It is not possible at this time to know the full scope and duration of military operations that will be necessary,” Trump wrote in his War Powers Resolution letter to Congress.
So what does this mean, Gabe? Just because it’s perhaps more “typical,” that doesn’t make it good policy. I would connect this action back to the administration’s firing of the service chiefs and JAGs early in this administration. Clearly, the current administration intends to force military members into obeying what would, in almost any other admins, be illegal orders. Those of us who’ve served in combat understand, I think, how dangerous this move is.
Want more? There is an extraordinary deep dive on the Caribbean incident by Claire Berlinski. She even knows why there were 11 people on a drug boat.
https://claireberlinski.substack.com/p/what-is-trump-doing-in-the-caribbean