In all of those years, in addition to a broadly scoped AUMF, Congress failed to clearly distinguish the line between peace and war, appropriating trillions of dollars to spend on rooting out “terror”—a tactic, not an enemy. In other words, it largely rejected law enforcement as the preeminent framework to combat groups abroad that engage in terrorism and invested heavily in an indefinite war posture for the U.S. and its partners. It is possible Congress’s role as authorizer and funder of various forever wars—which continue today—has desensitized it to armed conflict, especially against an alleged “terrorist” enemy—and left it untethered from its human rights obligations.
Both parties have contributed to this shift from peacetime as the norm into a permanent armed conflict mindset against “terrorist” groups. (See various administrations’ expansion of the law to substantiate more killing.) To justify the boat strikes, Trump has asserted that as president he can determine the U.S. is at war with “narco-terrorists” and thus legally is able to target them.
To many Americans who have watched decades of drone strikes against non-state groups the executive branch has described as terrorists and determined the U.S. military can lawfully target, the boat strikes might seem like business as usual. But they are distinct. Notwithstanding the many valid criticisms of the ways in which executive branch lawyers have interpreted the AUMF, the drone strikes against al-Qaeda and its affiliates were at least tethered to that congressional authorization and, generally speaking, part of actual wars. By contrast, Trump’s strikes on boats in the Caribbean and Pacific are no doubt extrajudicial killings. It is lawmakers’ job to know that and speak the truth plainly.
Understanding the distinction is important for several reasons.
...
First, to refute Trump’s attempts at fabricating reality, lawmakers need to appreciate that under international law the existence of a war—which would trigger the law of war and allow the use of lethal force as a first resort between the parties—is a factual matter, not something that can simply be declared. To prove the existence of a war requires a fact-based analysis that, in this case, would mean demonstrating the necessary duration and intensity of a conflict between a state and an organized armed group. Experts have provided thorough analyses on this issue, demonstrating no war exists.
...
Second, lawmakers must be attuned to the fact that misunderstanding the boat strikes as part of a war has wasted valuable time on red herrings when the heart of the matter is simple: All of the boat strikes are murder.
...
Another red herring legislators have fixated on is the Defense Department’s targeting criteria, which, while the details are classified, some senators have noted do not include the requirement of drugs or weapons on the boat. But it is erroneous to provide a contrast between striking boats with drugs or weapons and those without—either way it is murder. Just like it would be murder if a policeman shot someone on the street in the U.S. merely because they were transporting drugs. The Defense Department’s targeting criteria are a distraction; the key message is that all of these strikes are extrajudicial killings.