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It is simply murder: U.S. bombing speedboats in open seas. The crews had not attacked our forces. No court had convicted or sentenced their unknown passengers. No effort was made to order the boats to stop for inspection before they were bombed. (The Navy clearly had the capacity to operate on the water; it picked up survivors of one boat.) At least one boat had reversed course when it saw our jets; we shot them in the back.
This kind of murder is called “extrajudicial killing.” It happens when an official (or death squad) deliberately kills a person without a legal process condemning that person to death. Declared wars and police policies for the use of lethal force as a last alternative are the exceptions.
These extrajudicial killings of persons in speedboats violate laws. They violate international laws that we led in creating after the horror of World War II. We supported such laws not with a false idealism that they would eliminate evil, but with the hope that they would temper cycles of revenge so that future generations could take the next steps to civility and peace. The killings violate the U.S. Constitution’s provisions for due process for persons who are to be punished by the government. These bombings also exceed federal laws for penalizing drug smugglers that impose prison and fines rather than execution.
The American Bar Association is the voice of the U.S. legal profession on behalf of the rule of law. In ordinary times, it focuses on educating lawyers and improving legal procedures. These, however, are not ordinary times. The Trump administration is overturning long-established principles of law. Convicted criminals are pardoned soon after sentencing. Political foes are wrongfully prosecuted. Federal funds are withheld and dispensed according to the president’s political whims. Secret police grab people, even racially profiles law-abiding citizens, off the streets. The traditional balance of power between Congress and the presidency is simply ignored. And now, we have killings by a president who openly discusses the future possibility of deploying regular troops into states that oppose his policies. In this context, the rule of law and our constitutional contract are in grave danger.
One of the most worrisome aspects of our time is how civic institutions have silently complied with the anarchic power of Donald Trump’s presidency. Public schools have inserted religious dogma into textbooks. Museums have sanitized history. Editors write as if the U.S. Constitution is an elastic matter of political opinion rather than our contract as to how we will live together in nationhood. Compliance with the expanding autocracy does not slow its attack on the rule of law or of our constitutional form of government. Rather, compliance makes it worse.
The U.S. needs legal help to stay in the community of civil nations. The ABA should clearly speak to the fundamental threat to law itself. This requires more than simply suing to stop government harassment of attorneys and law firms who represent those who differ its positions. The American Bar Association should file a complaint with the International Criminal Court asking it to rule on the legality of bombing watercraft.
