Republican and Democratic leaders of both the House and Senate Armed Services Committees have sought to investigate the allegation that, following an attack on a boat the administration maintains was connected to so-called narco-terrorism, Secretary of Defense Pete Hegseth ordered a follow-up strike to kill the survivors. If proved true, such conduct would arguably violate both the laws of war and the United States: neither the President nor his representatives have the authority to order that no quarter be given following military action.
There is no small irony in the fact that this allegation is being raised following the 80th anniversary of the Nuremberg trials in November. The trials stand as perhaps the most significant modern testament to the rule of law, both internationally and in our own country. As one commentator recently put it, “Nuremberg was justice, in fact and in symbol. It created legal precedents that successors have followed and built upon.”1 John Q. Barrett, Farewell & Thank You to the Nuremberg Office of U.S. Chief of Counsel (OCC), The Jackson List (Nov. 18, 2025), https://thejacksonlist.com/2025/11/18/farewell-thank-you-to-the-nuremberg-office-of-u-s-chief-of-counsel-occ/.
Today, the actions of the second Trump administration have put those legal precedents at risk. Among the many legally questionable actions that the administration has taken—from dismantling the Department of Education to imposing tariffs without congressional approval—that wanton killing of individuals on the high seas ranks among the most threatening developments to the rule of law at home and abroad.
The seriousness of the most recent allegation is reflected in a congressional effort that has united Republicans and Democrats. In a statement, the chair of the House Armed Services Committee, Representative Mike Rogers, Republican of Alabama, was joined by the senior Democrat, Adam Smith of Washington, in a statement announcing “bipartisan action to gather a full accounting of the operation in question.”
Though such an investigation is surely warranted, it should not obscure the failure of both Armed Services Committees to investigate the President’s military campaign against drug cartels in the Caribbean Sea and eastern Pacific Ocean when it began months ago. At this writing, that campaign has taken dozens of lives, and the President has yet to present any legal justification for it, though it has been reported that the Justice Department has concluded in a secret memorandum that these extrajudicial killings lawfully fall within the President’s wartime powers.
There are, however, problems with this argument under our constitutional legal structure. First, Congress has not recognized that the United States is at war, and second, the President’s actions do not fall within his limited authority to take military action absent congressional approval.
Under the Constitution, only Congress can declare war. The framers lodged the power to initiate war in the legislative branch for at least two reasons. First, it is the most representative. Perhaps no decision has as momentous consequences for a nation and its citizenry as military engagement, which, by its very nature, will risk the lives of those Americans who have chosen to serve in the armed forces. Second, Congress is the most deliberative branch of the federal government. A decision with such consequences, the framers reasoned, should not be made by one person. Rather, as Justice Robert Jackson (the lead prosecutor at Nuremberg) famously explained in the Steel Seizure Case, such determinations should “be made by parliamentary deliberations.”2 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 (1952).
There are exceptions, of course. There is little doubt, for example, that the President has the inherent authority to defend the nation from attack or invasion, a power whose existence the Supreme Court confirmed in the wake of President Lincoln’s response to the secession of the south in the Civil War.
Perhaps more important, Congress no longer issues declarations of war; instead, it authorizes military action. The 2001 Authorization to Use Military Force (AUMF), enacted following the terrorist attacks of September 11, is a prominent example.3 Pub. L. No. 107-40, 115 Stat. 224 (2001). Successive presidents might have stretched the AUMF to the breaking point in pursuing various military operations, but still they could point to a Congressional approval of military action on the books—in other words, opinions might have differed as to whether particular actions fell within the ambit of the AUMF, but no President seriously claimed the power to take those actions absent any Congressional approval.
And Congress in the past has made efforts to protect its authority. In the first Trump administration, the Senate sought to rein in the executive by acting to compel the withdrawal of U.S. military assistance that the President had committed to the proxy war in Yemen between Saudi Arabia and Iran.4 Lawrence Friedman & Victor Hansen, The Senate Strikes Back: Checking Trump’s Foreign Policy, Just Security (Dec. 14, 2018), https://www.justsecurity.org/61867/senate-strikes-back-checking-trumps-foreign-policy/. The bipartisan Senate action represented an attempt to engage in meaningful oversight of U.S. participation in military adventures at the President’s sole discretion.
Today, such efforts are lacking. Attempts in the Senate to deny President Trump authority to order the U.S. military to attack boats on the high seas have failed—and, of course, should not even be necessary given the lack of initial Congressional authorization. Recent reporting indicates, moreover, that the President has ordered Secretary of Defense Pete Hegseth to prepare to escalate the conflict: the nation’s most advanced aircraft carrier, the U.S.S. Gerald R. Ford, has been dispatched to the Caribbean Sea, the President is considering the use of Special Operations Forces against alleged “narco-terrorists” in Venezuela, and the U.S. Coast Guard seized a Venezuelan tanker.
Not only do these attacks appear to lack legal authority under the Constitution, they violate U.S. treaty obligations under the United Nations Charter. Use of force under international law is limited to actions authorized by the United Nations Security Council and actions taken in self-defense against armed attack. Even if the facts were to support the Trump administration’s claim that it is currently targeting “narco-terrorists”—whatever such a nebulous definition means—there have been no armed attacks against the United States or its citizens. The extrajudicial killings accordingly are in violation of international law and our treaty obligations.
It stands to reason that Congress should be investigating an allegation that the Secretary of Defense ordered the deaths of shipwreck survivors who could not pose a threat to the United States or its forces. But with more than 15,000 troops now massing in the Caribbean,5 Tyler Pager, Trump Won’t Rule Out Sending Troops to Venezuela, N.Y. Times (Nov. 17, 2025), https://www.nytimes.com/2025/11/17/us/politics/trump-venezuela-maduro.html?searchResultPosition=4. those committees should be doing more. It is long past time for Congress to exercise its constitutional prerogative to determine, through parliamentary deliberations, whether the U.S. should commit itself to the military conflict President Trump appears to have in mind. As part of that process, the administration would be obligated to make some showing to Congress to justify this conflict. At that point, the people’s representatives could decide whether the evidence and arguments are sufficient to demonstrate that the benefits of military engagement outweigh its consequences. The rule of law demands no less.
