EXCLUSIVE: One Year of Southern Spear. Part 2.

We once again return to Operation Southern Spear. In Part 1 we focused on its domestic and international consequences as well as the administration’s claims of grandiose operational successes. All of that was found to be questionable at best.

After 78 actions and 234 bodies, Southern Spear failed to significantly impact the drug flow. Cartels changed routes and explored alternative means of transportation. Politically the operation raised a lot of questions both at home and abroad. Congress and a number of prominent human rights organizations opened probes and lawsuits trying to surface proof for the administration’s “narcoterrorism” rhetoric. The UN now floats that the US is committing crimes against humanity. Latin America is divided in its reaction: those states closer to the US are eager to join operations, others are either distancing themselves or outright critical.

The other major issue of Southern Spear is its almost nonexistent legality. Most experts agree – the administration is illegally using lethal force with no justification or approval. President Trump is once again overreaching.

Below is a conversation with Allen S. Weiner, Senior Lecturer in Law and Director of the Stanford Program in International and Comparative Law at Stanford Law School, where we return to the topic. We speak on the administration’s claims, justifications, accountability, survivability of the international law, and potential future of Southern Spear and similar practices.

Wyoming Star: What I wanted to talk to you about is the legality of Operation Southern Spear. We’ve covered this topic back in 2025, and at the time we thought that this would eventually end with a regime change in Venezuela. When Operation Absolute Resolve came about and President Maduro was abducted, we thought, “Well, this is it.“ Yet here we are. 70 confirmed strikes, 234 people killed, and only 30 suspected Mexican cartel members arrested in the joint operation with Ecuador. A strange statistic for what is essentially a law enforcement operation, right?

Dr. Weiner: Well, I think the government’s position is it’s not a law enforcement operation. That’s the whole theory.

If it were a law enforcement operation, they really could not be doing what they’re doing.

So there are basically two paradigms. One is a law enforcement operation where you have to arrest people and have to have reasonable grounds for doing that under domestic law. You have to give them due process and can only use lethal force in self-defense if you’re trying to arrest them and they’re about to threaten or harm you. That’s the law enforcement operation that we’re familiar with from all the TV shows about cops. But the administration’s theory, the reason why they believe they’re able to carry out these armed attacks on vessels, is that it’s not a law enforcement operation – it’s an armed conflict. So these would be incredibly unusual statistics if the administration was treating this as a law enforcement operation.

Wyoming Star: The administration reported a 50-65% reduction in illicit activity at sea. It’s hard to know for sure. Is 90% of all the drugs entering the United States from Latin America now being destroyed? The administration is mostly focusing on the spectacle of bombed boats.

Dr. Weiner: My expertise is on the law of armed conflict and the law of war, and I have not been attempting to evaluate how this has been going as a narcotics interdiction program. What we do know is that historically the patterns were that most of the drugs that came from Venezuela are not actually generated in Venezuela. They’re transshipped from Colombia and not really aimed at the United States. Venezuela is the path of distribution for drugs that are headed to Europe. The administration made two claims with respect to the Tren de Aragua boats that were traveling from Venezuela. Number one was that there was a lot of fentanyl, and that was the reason why the United States said that these drug operations were like an attack, a use of force, against the United States because they were causing so many fatalities, and that’s why, according to the administration’s position, it was appropriate to treat this as an armed conflict. I think again, based on the reporting that I had seen, and I’m not an expert on drug trafficking, these boats were not actually a means of transshipping fentanyl. In fact, one of the points that I’ve made is that when you look at the indictment against Maduro when he was abducted from Venezuela and brought to the United States and charged with having been engaged in drug trafficking, there’s no reference to fentanyl in the indictment.

In other words, it does not seem to be the case that even our own Justice Department believes that Venezuela drug boats were a large source of fentanyl shipments to the United States. Most of that seems to be coming to the United States across land borders, across the Mexican border.

And then even to the extent that what is being transported on these Venezuelan drug boats, to the extent these boats are drug boats, of course, we don’t know, because when we shoot them, strike with missiles, and sink them, we don’t really know what was on them and what the people on them were doing. That’s one of the differences between an armed conflict approach and a law enforcement approach. When you want to accuse someone of engaging in drug trafficking and enforce the law, you have to actually have evidence and prove that in court as opposed to just saying that and launching a missile. But what has been widely reported is that most of the drugs that were transshipped via Venezuela were actually headed towards the eastern Caribbean and then on their way to Europe. So that was not the main transshipment pathway for drugs coming to the United States, and with that, it raises questions of who exactly has been targeted.

Wyoming Star: We’ve seen reports that there’s been survivors of these attacks, and these people have neither been charged nor arrested.

Dr. Weiner: There was one very prominent case where there were survivors who later got struck again and were killed. In other cases, they’ve simply been returned back to the point of origin. This also raises questions, certainly in my mind, about whether there is in fact evidence to support the allegations that these boats are engaged in the transshipment of narcotics that are destined for the United States.

Wyoming Star: Do you see any of the official justifications as reasonable or at least within US law or international law?

Dr. Weiner: You’ve mentioned both US law and international law, and I think those are different questions. As a matter of US law the president is widely understood as having quite wide authority to carry out armed conflict operations. That authority has really expanded over the centuries through recurring practice.

The president is understood to have wide authority under domestic law to carry out armed operations as the commander in chief as long as the level of conflict does not rise to the level of war. In the US Constitution it’s only Congress that can authorize war.

But uses of force that are below the level of war, and there have been many operations that have involved actually very extensive uses of armed force, at least our own Justice Department, the office of the Legal Counsel, said that quite extensive uses of force like military operations against Libya in 2015 and the bombing campaign against Kosovo in 1999 did not rise to the level of war and therefore fell within the president’s commander-in-chief authority. There’s this constitutional question about the allocation of authority: what does the president have the power to do on his own, and what requires congressional approval?

Wyoming Star: Does the duration of the conflict play a role?

Dr. Weiner: I think that would be a factor, but the Justice Department doesn’t have a real cut-and-dried formula. It’s a combination of circumstances. The main factor is the intensity of violence and in some ways the exposure of US military personnel to risk. And with these drug boats, since the boats are being struck remotely by missiles, there’s no significant exposure or risk to the US military personnel carrying out the operations. There’s a separate domestic law question about the War Powers Resolution, and I haven’t actually seen what position the administration has taken on the War Powers Resolution. With the War Powers Resolution, the time difference does matter because the Congress has taken the position that the president has to seek congressional approval within 60 days of introducing US forces into a conflict. This is a very strange situation because this is not a single recurring campaign. It’s a series of isolated events. Is there a single armed conflict against Tren de Aragua that began with the first boat strike, or is the administration treating each of these strikes as independent uses of force? That’s an interesting question. I actually don’t know what position the administration has taken on that. They’ve been very silent. I mean, the administration has offered really almost no public justification for the use of force against these drug boats. They’ve basically invoked an old Office of the Legal Counsel opinion that said, “Well, even if this violates international law, the president has the authority as a domestic law matter as a constitutional law matter to violate international law.” That seems to me to be a suggestion that the administration doesn’t really have a very serious international law justification. The assertion has been that these drug groups are like armed groups that are carrying out an armed attack against the United States because of the harm caused by the drugs that are being sent to the United States. And so just as we had the right to use force against the non-state armed group al Qaeda after the September 11 attacks, the theory is, we have the right to use force in self-defense against these criminal organizations, Tren de Aragua, or other groups that have sometimes been named, that are carrying out something that is functionally the equivalent of an armed attack against the United States. That’s the clearest articulation of a theory.

I think it’s not legal for two reasons: Firstly, even though the importation of drugs into the United States may cause harm in the United States, that is not the same as an armed attack. We really look to an episode where we see a kinetic operation that causes destruction. This more indirect way of causing harm is not an armed attack. Secondly, I don’t believe that these drug groups really qualify as armed groups. I don’t think they have the level of command, control, and organization. They seem to me to be quite decentralized. So I think there are multiple reasons why the theory that the United States is exercising self-defense against an armed attack by a non-state armed group is not legally viable.

Wyoming Star: My next question will be on accountability. Can this operation be blocked by Congress, especially after midterms?

Dr. Weiner: Congress could always pass a law saying that the president isn’t authorized to carry out these operations. Because the president has his own commander-in-chief authority, sometimes there can be constitutional disputes about whether Congress has the authority to do that even with the War Powers Resolution, which was adopted back in 1973. Most US presidents have taken the formal position that they believe that the War Powers Resolution at least in some circumstances is unconstitutional even though they formally comply with the reporting requirements. But the one thing that Congress clearly could do that is within its unquestionable constitutional authorities is to prohibit the use of funds for any of these operations. And there have been episodes in the past where Congress has been opposed to US military operations and has enacted laws saying, “No funds shall be used for X.” Describing the military purpose, the Congress prohibited the use of funds for military operations in Somalia after the Black Hawk Down episode during the 1990s, prohibited the use of funds for the use of force in Vietnam after the US formally withdrew. So that’s an option.

Wyoming Star: Do we have sufficient evidence that President Trump will abide by any such resolution?

Dr. Weiner: Well, we have a precedent of the Iran war. I have not seen evidence that the president has yet officially defied an expressive act of Congress saying, “You are prohibited from doing X.” On the funding issue, though, he’s been very aggressive. He’s used his recession authority to not use funds that Congress had mandated be spent, he’s reprogrammed funds, and he’s engaged in some construction activities in Washington where it’s doubtful that he has a clear appropriation to spend funds. So he’s employed some very aggressive interpretations of budget law, and so if Congress said, “You’re not allowed to use any funds for these kinds of drug boat operations in the Pacific or the Caribbean,” I think there’s a risk that he would continue to do so. Anyway, I think if he does face a democratically controlled legislature, he then sets himself up for congressional investigations and the even risk of another impeachment. So I think it’s likely that he would abide by an explicit congressional legislative mandate.

I’m not really sure that these drug operations are that important to the Trump administration. It’s not like some of the operations that are going on with Iran in the Gulf.

Even though the president does have an obligation under the Constitution, the president often refers to Article 2, which refers to his powers as the president. But Article 2 also imposes an obligation on the president to take care that the laws be faithfully executed. And that’s a part of Article 2 that the president doesn’t necessarily seem to have focused on quite as carefully.

Wyoming Star: Getting back to the international law. Does it further erode the international laws and especially humanitarian law?

Dr. Weiner: It does. International law doesn’t have the same kind of centralized adjudication and enforcement mechanism that a well-functioning domestic legal system does. The rules are based on the consent of states. We enter and adopt these laws because states all believe it would be a better world if we didn’t use force aggressively against our neighbors, if we didn’t kill noncombatants. These are not laws that are imposed on the United States, these are laws that we freely entered into because we thought a world in which states reciprocally complied with these rules would be better than a world in which states did not comply with these rules. But again, even though we don’t have a centralized enforcement mechanism in international law, the actual level of compliance with international law is quite good, and that’s because states think it’s in their interests to have these laws. So of course they comply with them – it makes sense. Now when you have a president like the president that we have who tends to view the world in a more transactional way rather than thinking more systematically and without necessarily thinking about what’s in the long-term interest of the United States as opposed to “what do I want to achieve at this particular moment,” he might say, “Well, I think it might make sense for me to violate the law because it would be in my interest to kill people on these drug boats right now.” Of course the effect of that is to undermine the long-term protection of persons who do not qualify as combatants under the law of armed conflict, and I think that does run the risk of eroding or degrading respect for the rule of law. Does it cause other countries to think, “Well, if the United States is not complying with the rule of law, I shouldn’t comply with it either?” Again, this doesn’t happen overnight. I think in my field, in international law, we’ve seen prominent violations of international law by powerful states: Russia has invaded Ukraine and is engaged in humanitarian law violations there, the United States is engaged in illegal activity with respect to its war against Iran in the Gulf, Israel has committed serious human rights violations at a minimum in its operations in Gaza, there are terrible human rights violations in Sudan, and we see a recurrence of human rights violations, ICL violations in Ethiopia. So I think there is a risk that as states, particularly as powerful states, signal that they don’t think it’s in their interest anymore to comply with these rules, there’s a risk that other states will say, “Well, it’s not in our interest either.” That is clearly a risk. Now the one thing I will say about this is international law develops slowly, over a long period of time, and it also weakens over a long period of time. Donald Trump will not be president of the United States forever. Vladimir Putin will be president of Russia for a long time but also not forever. Both Russia and the United States are probably seen as weaker countries for having engaged in violations of international law. I think that might be the kind of thing that will cause the next leaders of those countries to say, “Maybe actually complying with international law is in our interest.” So the long-term implications of what the president is doing here are very hard to predict. It’s the kind of thing that academics, people like me, are thinking about: is international law dead, is international law being transformed, or what will happen? There’s a lot of uncertainty about this, but clearly this is not good for international law.

I’m not quite ready to write off international law and say that Vladimir Putin and Donald Trump are killing international law. But they’re certainly injuring it. Whether it will recover remains to be seen.

Wyoming Star: Do you see this operation as a new reality of the US response to organized crime and drug trafficking or, more broadly, as a tool of US foreign policy or as a legacy building temporary show force by the Trump administration that will end as soon as he leaves office?

Dr. Weiner: We’re not actually seeing this armed conflict theory being used even with respect to other transnational crime challenges that the United States faces so far. For instance, the United States has not said that we’re in a state of war with gangs in El Salvador, or criminal organizations in Mexico, or with fentanyl traffickers from China. So I think this is largely a reflection of the administration’s hostility towards the Maduro regime. This began before the operation against Maduro and was in some ways supposed to provide a rationale or a justification for said operation. “Look at the threat that Venezuela poses to the United States. We’re in a state of armed conflict.” Even the Trump administration is not necessarily using the armed conflict theory very extensively, and I think this will not survive the Trump administration. The career military people have signaled a lack of approval for this. I think they don’t believe these drug gangs from Venezuela to be non-state armed groups against which the United States will wage war.

I don’t see that much institutional enthusiasm for carrying out these kinds of strikes, and I see a lot of institutional reasons against it. So my guess is that even if we, for instance, see a next Republican administration, these kinds of military operations won’t happen in the next presidential administration in the United States.