The USS Gravely, an Aegis-class destroyer, deployed to the waters near Venezuela as part of counter-narcotics operations.
THE PRESIDENT AUTHORIZES A LETHAL STRIKE ON A VESSEL TRANSPORTING DRUGS—THE OPENING SHOT IN A NEW AND EVOLVING WAR ON TERROR
INTRODUCTION
The current Administration is formulating a strategy to join issue with an increasingly dangerous influx of drugs, particularly fentanyl, using military assets. The Executive branch is uniquely suited to assess and interpret the intelligence gathered from sophisticated monitoring of cartel communications and logistics. Military units are positioned off the coast of Venezuela, a narco-state, and on the Mexico/United States border. The purpose is not only to deter border crossing but also to gather intelligence on how we can interdict future cartel operations. Cartels have now been declared as Foreign Terrorist Organizations (FTOs), and the mission to protect the homeland is morphing from strictly a law enforcement evolution to one where military action will be the most effective means of interdiction. From February 2025 until present, Secretary of State Marco Rubio has declared the following as FTOs:
- Tren de Aragua (also known as Aragua Train);
- Mara Salvatrucha (also known as MS-13);
- Cartel de Sinaloa (also known as Sinaloa Cartel, Mexican Federation, or Guadalajara Cartel);
- Cartel de Jalisco Nueva Generacion (also known as New Generation Cartel of Jalisco, CJNG, or Jalisco New Generation Cartel);
- Carteles Unidos (also known as United Cartels, Tepalcatepec Cartel, Cartel de Tepalcatepec, The Grandfather Cartel, Cartel del Abuelo, and Cartel de Los Reyes);
- Cartel del Noreste (also known as CDN, Northeast Cartel, or Los Zetas);
- Cartel del Golfo (also known as CDG, Gulf Cartel, or Osiel Cardenas-Guillen Organization);
- La Nueva Familia Michoacana (also known as LNFM, Los Lobos, and Los Choneros—both Ecuadorian gangs)
These are organizations that operate with sophisticated means, utilizing the most modern military equipment and technology. Drones, aircraft, submarines, and other means that create serious national security threats to the United States are deployed all while acting on behalf of quasi-sovereign states within states. They deploy advanced military hardware operated by former and likely current members of the sponsor state’s military. Mexico has significant influence from these cartels, which seek to destabilize this country through various means. I state with confidence that they share de facto power with the Mexican government, especially in some geographical areas of that country where the police and military dare not tread. A simple YouTube search will disclose deadly ambushes of Mexico National Guard troops who did so dare with significant losses. Mexico’s commitment to join issue with these organizations, which operate with virtual impunity in that country, is questionable. Maduro of Venezuela is under indictment for drug trafficking in the US and is the leader of the Tren de Aragua and Los Soles cartels, which have as their object the spread of influence to destabilize the infrastructure of the United States through terroristic acts. Fentanyl is an instrument of death responsible for both economic and physical harm. There should be no question that there is complicity with our geopolitical foes—particularly China—which continues to allow the precursor chemicals to produce fentanyl to flow unhindered to these cartels. This goes beyond mere criminality. These are geopolitical attacks on our country. The President so proclaimed this predatory incursion in support of expedited removals pursuant to the Alien Enemies Act. While I maintain that the Judiciary may not look behind such Proclamation, if such removals are not permitted under that Act, the intelligence underlying it can still support destruction of cartel infrastructure and equipment wherever they are found under Article II. This is a new form of terroristic threat, and the Executive has gone all in to do what has not been done before—destroy the enemy. The question—what do the Constitution and history and tradition permit?
THE CONSTITUTION DIVIDES WAR POWERS BETWEEN THE PRESIDENT AND CONGRESS
The National Constitution Center speaks to this issue in interpreting the “Declare War” provisions of the Constitution:
“The Constitution’s Article I, Section 8 specifically lists as a power of Congress the power ‘to declare War,’ which unquestionably gives the legislature the power to initiate hostilities. The extent to which this clause limits the President’s ability to use military force without Congress’s affirmative approval remains highly contested.
In the early post-ratification period, the clause’s limit on presidential warmaking was read broadly. Many key founders, including Alexander Hamilton, George Washington and James Madison, referred to the clause’s importance as a limit on presidential power. In the nation’s early conflicts, Congress’s approval was thought necessary—not only for the War of 1812, for which Congress issued a formal declaration, but also for lesser uses of force, including the Quasi-War with France in 1798, conflicts with the Barbary States of Tripoli and Algiers, and conflicts with Native American tribes on the Western frontier (all of which were approved by Congress, albeit without formal declarations).
In modern times, however, Presidents have used military force without formal declarations or express consent from Congress on multiple occasions. For example, President Truman ordered U.S. forces into combat in Korea; President Reagan ordered the use of military force in, among other places, Libya, Grenada, and Lebanon; President George H.W. Bush directed an invasion of Panama to topple the government of Manuel Noriega; and President Obama used air strikes to support the ouster of Muammar Qaddafi in Libya. Some commentators argue that, whatever the original meaning of the Declare War Clause, these episodes (among others) establish a modern practice that allows the President considerable independent power to use military force.”
Presidents are considered to have significant authority to deploy U.S. forces using their Article II commander-in-chief power under various circumstances short of a war declaration. The Founders, particularly Hamilton, felt that although the vesting of the war power exclusively in the Executive would create a monarchical system, the Congress, likewise, would not act as commander in chief of the military and militia, thus creating a balance more suited to the design of the new Republic. Hamilton was pragmatic, however, and he wrote in Federalist 74:
“…The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”
Hamilton felt that a decisive and strong executive was necessary to meet the threats that faced the new nation, and he famously wrote, “Energy in the executive is a leading character in the definition of good government…it is essential to the protection of the community against foreign attacks.” Swift and decisive action given the uncertainties of foreign policy in the modern era has led to many circumstances wherein Presidents have ordered the military to respond or to initiate action without a declaration of war or an Authorization for Use of Military Force, known as an “AUMF.” Some examples in history:
- 1861—Abraham Lincoln ordered state militias to blockade the South before seeking Congressional authority; he cited “public necessity.”
- Korean War—In 1950 American troops were hastily deployed to South Korea and suffered significant losses in the summer of 1950—all without Congressional action;
- Vietnam War—1960-1975—Presidents Kennedy, Johnson, and Nixon deployed hundreds of thousands of troops. The Gulf of Tonkin resolution gave authority to use military force; however, Nixon’s order to bomb Laos and Cambodia and to order incursions for the purpose of destroying the enemy’s supply and refitting bases led to the 1973 War Powers Resolution, which will be discussed later;
- Lebanon and Grenada 1983-1984- President Reagan ordered troops to invade and to act on the ground with losses sustained, including the massive loss of U.S. Marines and other military personnel in the October 1983 barracks attack by Hezbollah. No Congressional action or authorization;
- Panama 1989—President Bush ordered ground action to oust Noriega and bring him to the US for trial on narcotics trafficking charges. Ground troops and Navy SEALS died in the operation;
- Kosovo—Clinton ordered airstrikes and later peacekeepers on the ground as part of a NATO operation without seeking Congressional authorization;
- Libya—Obama ordered airstrikes ostensibly as part of a NATO operation; however, we had personnel on the ground in support, and Benghazi was the site of the death of an Ambassador as well as contract personnel defending the consular spaces;
- Obama ordered drone strikes to kill Al Qaeda operatives, including a U.S. citizen abroad who advocated violence as part of a plot, citing imminent harm and the impracticality of capture given his location in hostile territory;
- Trump, and later Biden, ordered strikes on Syria. Iraq and Yemen, targeting militias and Houthis, and in one operation, Trump ordered a strike on Suleimani, the head of the Iranian Revolutionary Guard, killing him as he organized strikes in Iraq against American targets.
- Trump ordered Operation Midnight Hammer to obliterate Iran’s nuclear capabilities—a massive package of F-35s and B-2 Bombers dropped specialty ordinance on targets deep into Iran.
THE WAR POWERS RESOLUTION OF 1973 AND CONGRESS’S DIMINISHED ROLE
This Act, Public Law 93-148, was passed in response to what was viewed as Nixon’s “secret” expanded wars in Laos and Cambodia and states in relevant part as follows:
“War Power Resolution—Declares that it is the purpose of this Act to fulfill the intent of the framers of the Constitution of the United States and ensure that the collective judgment of both the Congress and the President will apply to the introduction of the Armed Forces of the United States in hostilities, or in situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities.
Requires that the President shall in every possible instance consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement is clearly indicated by the circumstances.
Provides that in the absence of a declaration of war by the Congress, in any case in which the Armed Forces of the United States are introduced in hostilities, or in situations where imminent involvement in hostilities is clearly indicated by the circumstances, such use of the Armed Forces of the United States in hostilities pursuant to this Act shall be reported within 48 hours in writing by the President to the Speaker of the House of Representatives and the President pro tempore of the Senate, together with a full account of the circumstances under which such hostilities were initiated, the estimated scope and duration of such hostilities, and the constitutional and legislative authority under which the introduction of hostilities took place.”
Pursuant to the “Declare War” clause, Congress retains the power to formally declare war, authorize military force, and finally, to fund such engagements. In practice, Congress has acquiesced in presidential decision-making since 1973 when introducing the military into action for short strikes or operations to deter hostile acts against the United States or its allies. This is particularly so in the war on terror in Iraq and Afghanistan and elsewhere. In 2001, in response to the 9/11 attacks, Congress passed an AUMF, which authorizes direct military action against any person or organization that supported or continued to support such attacks. We have had forces on the ground in Syria and Africa for years, and engagements have occurred regularly. In 2002 an AUMF was passed to authorize such action against Iraq. However, since then, Presidents have utilized these AUMFs for specific actions in places that clearly were not covered by the specific wording and intent of the Authorizations. Congress did not pull funding, and at best individual members would politically posture or fundraise without exercising any War Powers authority. The tradition has been to see Executive action in the face of real and perceived threats to our homeland and foreign interests. The Judiciary largely sees these issues as non-justiciable political questions subject to political accountability in the electorate, and actions to enjoin executive action, when rarely undertaken, have been dismissed upon that ground.
THE PRESIDENT IS FORGING A MODERN VIEW OF A THREAT TO THIS COUNTRY BY A SOPHISTICATED SLATE OF BOTH STATE-SPONSORED AND NON-STATE ACTORS THAT POSE THREATS AS LETHAL AS AL QAEDA AND ISIS
There was a time when Clinton and his neophyte advisors contended that the Al Qaeda organizations presented a law enforcement challenge and not a military one. He did order feckless strikes against poorly designated targets but largely omitted swift and forceful military action to attack known personnel and infrastructure. Only after 9/11 was it crystal clear that military engagement was necessary to eliminate and deter terrorists. The Taliban were largely eliminated in the fall of 2001; however, the pivot to Iraq allowed the Taliban to reestablish power notwithstanding our long-standing presence in Afghanistan. Fast forward to the trainwreck of the Biden Administration, which allowed cartels to become enormously powerful by monetizing our open borders policy. Venezuela gamed Biden by emptying its prisons into our country, and we took the bait by declaring them refugees. Maduro knew what he was doing, just as Castro did during the Cuban boatlift of the early 80’s. We have finally learned. Removing the worst of these actors entails the Trump administration running a gauntlet of courts and the ACLU, who choose to block legitimate efforts to enforce immigration law. Forcefully joining issue against the influx of fentanyl and human trafficking, the President, by Executive Order, and the Secretary of State, by entry into the Federal Register, have finally called these cartels and their sponsors what they are—terrorists. Addressing the imminent threat of drugs and their components into this country by joining issue with force is the only real way to deter a very sophisticated and well-funded set of adversaries. This is not a law enforcement issue. In short order the Coast Guard should be augmented into the Department of War and allowed to use lethal force to destroy these actors at sea and in the air. The same for all components of the military to fully and finally destroy these actors or to seriously degrade them.
CONCLUSION
It will be argued that the better and “safer” route for the Administration would be to seek an AUMF, which authorizes military force to destroy cartel assets. Certainly, and such would be well taken and advised. I see no possibility that the votes would be there, however, and the President should continue to exercise his Article II commander-in-chief authority to protect the homeland from a serious threat to our safety and security. The President will inform Congress as required and the constitutional ball will be in their court. The Presidents notification to Congress may be viewed here. These incursions kill Americans and place others in jeopardy. This is a new terroristic threat, and I believe the Founders would understand that a vigorous Executive is protecting the homeland from foreign threats as dangerous as those we saw on 9/11 and beyond. The destruction of this vessel in international waters was decisive. Cries of “extrajudicial killing” from the left further establish their cocooning themselves in lawlessness and fake “due process.” They were strangely silent when their political heroes, like Obama, did the same.
Mike Imprevento
September 9th, 2025
