As a lawyer at the Justice Department, and later at accountability nonprofits, I’ve had a front row seat to ever-expanding interpretations of executive authority used to justify things like torture, secret mass government surveillance and civilian drone assassinations with no due process — or any process whatsoever. That’s why President Donald Trump’s killing frenzy of suspected drug smuggling boats in the Caribbean and the eastern Pacific Ocean, along with his flimsy, constantly-shifting rationales for unilateral, unchecked executive authority, are so concerning.
What we have read and seen is brutal. Defense Secretary Pete Hegseth has posted videos of vessels exploding with the glee of a hormone-addled tween playing Call of Duty, and more than a dozen strikes since early September have killed nearly 60 civilians. And as rumors have flown about a military push for regime change in Venezuela, Trump took it one step further in an interview with “60 Minutes” on Sunday night. War with the country was unlikely, he said. But Trump also indicated President Nicolás Maduro’s time in power was numbered.
Extrajudicial execution of civilians has a dark history in the U.S. To make matters worse, the Justice Department’s Office of Legal Counsel (OLC), which is supposed to be the “constitutional conscience of the Justice Department,” is acting more like a rubber-stamp than a guardrail.
If my concern about Trump’s escalating and unaccountable use of lethal force on civilians seems overwrought, recall the Supreme Court’s presidential immunity ruling in which dissents from Justices Sonia Sotomayor and Ketanji Brown Jackson raised the hypothetical of a president being immune from prosecution for ordering the assassination of a political rival, or from Trump’s own “joking” that he could “stand in the middle of Fifth Avenue and shoot somebody” with no consequences.
While politicians, professors and pundits agree that Trump’s military orders in Latin America are troubling, it’s worth remembering that this is hardly the first time the U.S. government has claimed the ability to play prosecutor, judge, jury and executioner of anyone on the planet, including American citizens. I know because I cut my baby lawyer teeth defending public servants and soldiers who blew the whistle on such unilateral, unreviewable and irreversible executive power — people like U.S. Army whistleblower Chelsea Manning; CIA whistleblower John Kiriakou and NSA whistleblowers Thomas Drake, Edward Snowden and Daniel Hale.
Trump’s expansive, and apparently absolute, claim of executive authority is all the more suspect due to the government’s sordid history of opportunistically labeling suspects and detainees, even if they were American, as “enemy combatants,” “defendants” and “terrorists.” These words were often used interchangeably, but with very different meanings that inform what laws apply and how those subject to them are treated.
I’ve written entire law review articles on this topic. In short, individuals historically have been shuffled between the military court-martial system, the civilian court system and the criminal justice system, especially in high-profile cases challenging controversial practices like “enhanced interrogation techniques” and extrajudicial killing. (For the latest poster child of this legal hopscotch, look no further than Kilmar Ábrego García, who has been labeled variously an illegal alien, protected legal resident, deportee, migrant, gang member and now criminal defendant.)
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The creep of extrajudicial authority cuts across party lines and spans administrations. During the George W. Bush administration, the Justice Department’s once-revered OLC authored the secret, shoddy and now-withdrawn “Torture Memos,” which held that laws prohibiting torture did not apply to the interrogation of suspected terrorists. Under President Barack Obama, OLC authored a secret memo laying out its fraught legal reasoning for the drone assassination of an American citizen overseas, which also killed his American-born teenage son. Subsequent opinions have been just as problematic.
Obama’s “just trust us” doctrine was summed up in remarks he made in the wake of my client Edward Snowden’s whistleblower disclosures: “If people can’t trust not only the executive branch, but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here.”
Press and privacy advocates, myself included, criticized this statement that we should trust the government rather than challenge it. The question I asked repeatedly back then was: What does this power look like in the hands of someone we don’t “trust”?
We now have the answer: Donald Trump.
And we also have an OLC, awakened from its deep slumber during the first nine months of Trump’s second term, that issued a secret, classified and unpublished memo justifying the administration’s death sentence upon — and summary execution of — suspected drug traffickers, an even broader category than those the administration had previously designated as “terrorists.” This by no means gives a pass to other presidents’ overreach, though Trump’s bulldozer tactics certainly make me a bit nostalgic for Obama’s arguably more incremental and deliberative approach to murdering people. (“Terror Tuesday” admittedly still sets a pretty low bar.)
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While Trump has offered a revolving door of justifications for the spate of boat strikes — including Article II commander-in-chief powers, terrorism prevention, drug interdiction, armed conflict and a broader war on narcotics trafficking — OLC has once again stepped into the breach by providing cover, or what its alum Jack Goldsmith has called a “golden shield” of immunity. Basically, it’s the legal equivalent of a Supreme Court decision or prospective pardon that insulates executive officials from future criminal liability for their legal advice.
While many correctly see the strikes as a mechanism of putting military pressure on Venezuela, forgotten in this subterfuge is that sometimes it’s a lawyer’s job to say no. Bruce Fein, a former OLC lawyer under President Ronald Reagan, has noted: “OLC is supposed to be a check on overzealousness…The reason why you have OLC is to say, ‘Here we draw the line.’” When he served in the OLC during the Reagan administration, Douglas Kmiec told the then-president that he could not exercise an inherent line-item veto, even though Reagan desperately wanted one, because it was not implicit in the Constitution.
Although Trump is now reconsidering his one-sided posthumous situationship with Reagan in light of Ontario’s anti-tariff ad, the words from Reagan’s OLC still matter. Alarm bells should be ringing: The office is once again being misappropriated to bless extralegal conduct, not to block it.
