NEWS: Leaked memo exposes flimsy legal basis for Trump boat strikes
DOJ's classified, "legal authorization" for the missile attacks is beginning to collapse.
Today the administration’s drug-boat scandal blew wide open — not because of a new strike, but because a leaked Justice Department memo shows the entire legal theory behind the president’s Caribbean bombing campaign may be built on political vapor.
We learned overnight that the Justice Department’s secret Office of Legal Counsel memo — the classified document authorizing the boat strikes — bears no resemblance to the story the president has been selling Americans.
Trump’s public line has been that these missile strikes have been aimed at stopping drugs, protecting Americans from fentanyl, and in Hegseth’s words “putting narco-terrorists at the bottom of the ocean.”
But leaks about DOJ’s classified memo show something very different. According to sources, the memo appears to be a retrofitted legal theory that looks engineered to justify the killings the president wanted to see, rather than to justify an action America needed to take.
We covered the whole thing this morning on DEFIANCE Radio. You can listen to the broadcast below, or keep reading for the rest of the story.
“Self defense” is the shaky central argument.
According to multiple officials who spoke to The Guardian, the secret memo claims the strikes are actually collective “self-defense” on behalf of U.S. allies like Mexico and Colombia — countries that, according to the memo, must be defended with U.S. bombing of cocaine shipments because the cartels are waging “armed violence” against their governments.
There’s just one problem. Actually, several. There’s no public evidence any ally asked us to bomb boats. There’s no evidence the cartels are engaged in an “armed conflict” with any sovereign state. There’s no evidence that cocaine sales are financing a war rather than enriching criminals. And most of all, there’s been zero evidence from the Pentagon that these strikes are “self defense” necessitated by some imminent threat to U.S. forces, persons, or allies.
Yes, these drug cartels are vicious criminals. They are. And they go about their dirty work using violence and end-to-end lawlessness. But the Justice Department argument depends on these cartels producing cocaine as a means to conduct warfare, not to make money. In all my time in government, I’ve never seen a shred of information to suggest these cartels are in the drug business as a way of waging war.
What’s more, the self-defense claim requires showing that there was about to be imminent harm. There’s no doubt drugs kill people. But after a long process of being shipped across borders and bought by their victims. For the administration to show “self defense” as a justification, they would need to show that the boat itself represented an imminent threat to life and property — and that for some reason it couldn’t be pulled over, its occupants detained, and its handlers prosecuted.
These cartels are not nation states. They are not foreign armies on a battlefield with an underlying political aim of military rule. They are vast criminal groups that should be treated as criminals and arrested — not as enemy combatants who can be killed without trial, no matter how much we might find the drug trade reprehensible.
Yet the memo reportedly accepts the White House claims about “warfare” and “self defense” as facts, without stress-testing the intel. Indeed, it appears to have been written backward — starting with what Trump wanted to do, and then inventing a justification for it. That’s not really legal analysis so much as it’s legal laundering to get to an outcome the president wants to get to.
But the most revealing leak of all just came out.
Newly disclosed details reveal how officials are now explicitly aligning their public talking points with the memo’s most extreme element — the part that says killing the crew does not make the strike illegal. According people familiar with the memo, the Justice Department explicitly says that the fact that everyone aboard will likely die does not make the boat an improper military target.
So this week, the White House suddenly adopted that language. Officials now insist the second strike on September 2 — the one that killed survivors clinging to debris — wasn’t aimed at the people at all. It was aimed at “destroying the boat.”
Here’s how Press Secretary Karoline Leavitt put it:
“Adm. Bradley worked well within his authority and the law, directing the engagement to ensure the boat was destroyed.”
And Pete Hegseth echoed it at a Cabinet meeting, saying the second strike “sunk the boat and eliminated the threat.” Why does this matter? Because it reveals exactly what the OLC memo is trying to accomplish, which is to turn human beings into legal collateral.
Think of this as a legal magic trick. By saying that the target is the cocaine itself and the boat carrying it — and not the crew of the boat — they are trying to reclassify the civilians as incidental damage. According to sources familiar with the memo, its logic goes like this: drug boats carry ~$50 million in cocaine… cartels use cocaine profits to fund violence… that violence constitutes “armed conflict” against U.S. allies… so destroying the cocaine with airstrikes is lawful… and if destroying the cocaine kills everyone on board? That’s fine, because the boat is the target.
Legal experts call this theory “dubious.” Personally, I would call it deranged. It is the logical end point of an administration trying to make murder look like maritime maintenance. And it is unmistakable proof that the White House knows the legal ground is collapsing, which is why it’s scrambling to reframe the entire scandal around the boat, not the bodies.
This is why they’re keeping the memo a secret.
In my view, this explains why the administration refuses to declassify the memo. Clearly it’s not because the White House wants to protect sensitive intelligence, but rather because it exposes the shaky foundation of a lethal campaign that has already killed more than 80 people, many of them likely unarmed civilians.
If the public saw how flimsy the legal footing is, they’d see these strikes for what they are. The president is using wartime powers he does not have to kill civilians he cannot legally target, and he’s doing all of it under a legal theory that collapses the moment sunlight hits it.
Meanwhile, as all this breaks, a damning 2016 clip of Defense Secretary Pete Hegseth resurfaced, where he said the exact same thing as the so-called“Seditious Six” said last week:
“The military won’t follow unlawful orders from the commander in chief.”
Yet today, he’s trying to court-martial lawmakers for reminding service members of the law he once described himself. So you can imagine why Hegseth and others wouldn’t want the memo to come out and wouldn’t want the world to see that they’ve been following illegal orders all along.
Even Newsmax’s Judge Andrew Napolitano — a former colleague of Hegseth — declared on air that the second strike on survivors “is a war crime…and those responsible should be prosecuted.” He pointed the finger directly at Hegseth in a truly damning segment. You can watch the whole thing here.
But the president and Pete Hegseth are not going to be able to escape accountability forever. The special operations commander who they’re trying to throw under the bus — as the one who ordered the “second strike” — will be headed to Capitol Hill tomorrow to meet with Members of Congress. And that will be the beginning of an investigation that is poised to stretch beyond the one incident on September 2 by looking at the broader question of whether the 80-plus people who’ve been killed were part of a war — or whether they were casualties in an illegal airstrike campaign meant to make the president look tough.
Your friend, in defiance,
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In my own experience as a long time federal prosecutor, Regional Coordinator for the President’s Organized Crime and Drug Enforcement Task Force (prosecuting the cartels and the mob), and later as Special Counsel to the President, this legal analysis is absurd and unprecedented and would not fly in a federal court or The Hague. Self defense requires imminent harm of bodily injury. Thjs memorandum was written by a loyalist suck up after the adults were all fired at DOJ and approved by Bimbo Bondi who would do anything for our POS POTUS including hiding the Epstein files, lying to federal judges, firing people who refuse to lie to federal judges, appointing Halligan and Habba and so much else. It isn’t worth the paper it is printed on.
Excellent reporting and analysis. Will this finally be a step too far, even for Trump and his gang? Will Congress actually DO something this time? Will The Hague? Even a lay person like me knows the military can't just go out and start killing people in international waters, even when those people are reprehensible drug dealers.
By the way, where did the photo of the boat containing people with hands in the air come from? Since what you're doing here is journalism, you should do the journalistic thing and include a caption with the source and a brief description of what it shows. Or was this AI-generated? If so, it's triply important to declare the source. It's fine to use AI, just say what it is.
Thanks again for the in-depth info and analysis.