“I think we’re just going to kill people that are bringing drugs into our country. OK? We’re going to kill them, you know, they’re going to be like, dead.” — President Donald Trump.
As federal criminal defense attorneys, we have represented numerous people accused of serious drug-trafficking crimes, many from Latin or South America. We have helped them determine whether to plead guilty or exercise their right to a jury trial.
If guilty, they generally face lengthy prison time, imposed by a judge who considers the circumstances of the defendant, applicable law and sentencing guidelines. In the federal system, people convicted of drug crimes often face between 10 years and life — not the death penalty.
Recently, though, the Trump administration has used the United States military to summarily kill dozens of people the government said were smuggling drugs on boats from South America.
The administration has offered no formal, reasoned legal basis for the extrajudicial killings. Instead, various officials have asserted — without evidence — the people in these boats blown to pieces by the military were members of the Tren de Aragua cartel, whose members the administration has deemed “narco-terrorists.” According to Vice President JD Vance, “killing cartel members who poison our fellow citizens is the highest and best use of our military.”
Due process and congressional approval were bypassed
Credit: Images by Melissa Schollaert Photography | www.msp-photography.com
Credit: Images by Melissa Schollaert Photography | www.msp-photography.com
But we are not a nation that allows the executive branch to act as judge, jury and executioner.
The administration’s actions violate at least two foundational principles of this country: Every person is entitled to due process of law, and it is Congress’ job — not the president’s — to declare war.
Due process, of course, is supposed to provide some assurance that people targeted for punishment are who the government says they are and they did what the government says they did.
Due process is a foundational principle, because the founders knew an accusation does not equal guilt. The administration’s shoot-first, never-ask-questions approach to these “narco-terrorists” demonstrates a dangerous indifference to this basic principle.
The president has dismissed due process concerns by claiming the country is in an “armed conflict” with drug cartels. But this assertion of wartime powers to kill without due process is also in direct contradiction to our constitutional principles.
It is Congress, not the president, that declares war. Trump has neither obtained nor even sought congressional approval. In bypassing Congress and essentially declaring war on drug cartels, the president has dealt a blow to our system of checks and balances.
Convicted drug traffickers were not put to death
Credit: Handout
Credit: Handout
Even more troubling, the order for an attack on Sept. 2 was to kill everyone on board, so the military fired again after seeing two survivors clinging to the wreckage. This is almost certainly a war crime.
Available evidence indicates the attacks have killed innocent civilians. One Colombian man killed by our military was, according to his wife and the president of Colombia, on a fishing trip and had no link to drug trafficking. There are significant doubts as to whether all 11 men killed in the Sept. 2 strike were drug-traffickers.
Further, two other men who survived missiles were returned to their home countries. If these men were dangerous “narco-terrorists,” why would we let them go home? Why would they not be brought to the U.S. to face justice?
Notably, there is no record of anyone receiving a death sentence for federal drug-trafficking crimes in the United States. Even former Panamanian dictator Manuel Noriega and Mexican ex-cartel kingpin Joaquin “El Chapo” Guzman were tried in U.S. courts, convicted of vast drug trafficking crimes and sentenced to long prison terms, not death.
Individualized consideration of each person convicted of a crime is critical to ensure fair outcomes.
We have seen harrowing and terrifying death threats to our convicted drug clients and their families, often to coerce participation.
The indiscriminate killings from afar of people on boats does not allow for the consideration of how any one individual came to be on the boat — whether voluntarily or coerced, or any of the myriad other factors that help determine an appropriate sentence.
Rather than killing people without due process and without congressional authorization, this administration should bring the suspects here and prove their guilt in a court of law.
These extrajudicial killings show a wanton disregard for the rule of law. And that should alarm us all.
Sydney Strickland and Leigh Ann Webster are Atlanta criminal defense attorneys, both members of Georgia Lawyers for the Rule of Law.
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