Trump’s boat strikes are illegal. Does it matter?

On Oct. 12 of last year, Chad Joseph and Rishi Samaroo boarded a small boat docked just beyond a Venezuelan beach. The two Trinidadian men had recently fished together and picked up work as farm hands in Venezuela, but it was time for them to get back to Trinidad. Samaroo wanted to help care for his ailing elderly mother, and Joseph desperately missed his wife and three young children.

They knew the crossing was dangerous — for just over a month, the U.S. military had been blowing up boats off the coast of Venezuela, inspiring widespread fear among local seafarers. But after weeks of failed attempts, Joseph and Samaroo had finally found a boat that would take them home.

Two days later, the Trump administration killed Joseph and Samaroo in a military strike, the fifth in a months-long campaign that has now snuffed out at least 227 lives . On today’s grim anniversary of the first of those strikes, it is more important than ever to insist that these killings are not simply inhumane and ineffective, but illegal.

From the beginning, the boat strikes campaign has been widely condemned as lawless. Contrary to President Trump’s absurd claims, the U.S. is not and cannot be in a formal armed conflict with the unnamed drug cartels supposedly targeted in these attacks. The boat strikes are therefore nothing more than premeditated killings of civilians . A chorus of elected officials, governments and international bodies have thus denounced the strikes as “illegal.”

But why focus on the strikes’ illegality in the first place? After all, one could just as easily condemn the strikes for their cruelty. The strikes have torn apart families from across Latin America, depriving them — forever — of husbands, fathers, brothers and sons. That includes ordinary men with no connection to drug trafficking , like Joseph and Samaroo, whose families my ACLU colleagues and I are representing in a wrongful death lawsuit against the U.S. government. Perhaps the most powerful critique of the boat strikes, then, is not their lawlessness, but their immorality.

One could also object to the strikes as a policy failure. Trump insists that the strikes have stopped illicit drugs from entering the country and, in doing so, saved thousands of lives. But his own Drug Enforcement Agency reportedly disagrees , finding that the strikes have had no effect whatsoever on the availability, price, or purity of cocaine in American cities. The strikes are therefore also wrong because they have failed on their own terms.

So, if the boat strikes campaign is an unethical, unmitigated policy fiasco, should anyone even bother debating its legality? Earlier this year, Harvard Law School Professor Jack Goldsmith provocatively argued that “debates about the legality of presidential uses of force” — like the boat strikes — “are empty.” According to Goldsmith, the executive branch’s “promiscuously permissive” legal opinions authorizing military force, paired with courts’ reticence to adjudicate war powers disputes, mean that invocations of law in this arena are not simply beside the point; they are actively harmful, deflecting attention from the sole actor — Congress — that could exercise “political powers” to constrain the president.

It is true that presidents from both parties have claimed increasingly expansive power to use military force unilaterally. And when these aggressive assertions of power have been challenged, courts — cowed by executive branch lawyers crowing that even the slightest scrutiny of “national security” decision-making would “hinder” armed forces from acting “decisively” — have often demurred.

None of this, however, means that we should stop insisting that Trump’s killing spree at sea is illegal.

For starters, the abandonment of legal arguments would mean abandoning the legal claims of the victims of these heinous crimes. Just like other victims of Trump’s lawless brutality, those who have suffered because of his boat strikes deserve repair and accountability. And just as in other cases where unlawful government action has caused harm, courts can and should weigh in when rights deprivations stem from illegal uses of military force.

We should also maintain that the boat strikes are illegal because law matters to our understanding of right and wrong. So long as we imbue law with moral significance , it will remain an essential terrain for debating the propriety of military action — and one that should not be ceded to those who seek unbounded authority to dole out deadly violence.

To be sure, the Trump administration has so far carried out the strikes with impunity. But it has not yet been forced to defend them in court. And given that this administration’s pattern of brazen lawbreaking has inspired a growing number of courts to reject its sweeping invocations of “national security,” there is hope that here, too, the courts will call it like it is.

If the past year has taught us anything at all, it’s that those who fight back against the Trump administration sometimes win, and those who preemptively concede find their concessions simply yield more lawlessness. In this context, the consequences of more lawlessness are dire: more illegal uses of military force by an emboldened executive, as Trump’s now “ triply illegal ” misadventure in Iran demonstrates.

Our institutions must put an end to Trump’s killings on the high seas and hold the perpetrators accountable, because they are sadistic, futile, and yes, illegal.

Jeff Stein is staff attorney for the American Civil Liberties Union Foundation’s National Security Project.