Episode Transcript
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Speaker 1 (00:00):
It's time to talk with my good friend and former
federal prosecutor Andy McCarthy. He's also a contributing editor at Yes,
I Got to Mute myself. Thank you Dragon. He's also
a contributing editor at National Review. And Andy's been writing
a fair bit with what I think is the best
analysis of these drug boat strikes. Two real issues, actually,
(00:21):
and they're quite separate issues. Are the strikes on the
drug boats as an overarching thing legal and then the
second strike, which was really the thing that's been in
the news so much lately. Is that legal or potentially
illegal for a different reason than the first strikes might
be illegal. It remains to be seen whether this issue
(00:42):
is going to sort of fade away or not. But
in the meantime, a few of us actually care whether
the government follows the law. So Andy, it's good to
see you again, Good to talk to you again. Thanks
for being.
Speaker 2 (00:53):
Here, my pleasure. Ross great to see you.
Speaker 1 (00:58):
Why don't you just sort of describe for us why
the question of the legality of the second strike may
be different from the question of legality of the first strikes,
like if the first strikes are legal, which is a
question the second one on this that has made the
(01:19):
news might still be illegal.
Speaker 2 (01:22):
I think it comes down to whether you think the
laws of war apply to this what the administration calls
a non international conflict involving non state actors. The which
they allege or who they allege are connected to drug
(01:43):
cartels that the President, in my mind dubiously has designated
as terrorist organizations. So there's a lot of there's a
lot of legal wrinkles here. But I think if we
decide russ that the laws of war don't apply, then
I don't think the second strike is all that distinguishable
(02:05):
from the first strike. If you decide that the laws
of war do apply, and therefore that the cartel members
are enemy combatants and therefore legitimate targets, the first strike
is justifiable, and the second strike gets into I think
(02:28):
a complicated area of US and international law regarding what
constitutes someone being ors to combat, which means that you're
out of the fight if there's no doubt. Under the
standards that apply internationally, people who are shipwrecked are deemed
(02:49):
to be oars to combat. Whether that's true under US
law is a little bit more tricky question. I think
ultimately the answer is probably yes, But it may also
just be a question of fact. The Second Geneva Convention,
which we are members of, talks about being shipwrecked as
(03:14):
being oars to combat. What ours to combat means is
that you're essentially that you're wounded, sick, unable to fight,
sometimes attempting to surrender. And those people have always been
under international law, at least since the Second World War
era there deemed to be illegitimate targets. Now, what I
(03:38):
think the American commanders would say and why I say
this is a question of fact, and this is very hard,
I think to understand in the context of drug dealers,
who I don't really think are enemy combatants. But let's
just imagine say it was al Qaeda. The example I
used with Rich Lowry on our podcast at National Review
(03:59):
last week was, if you remember, the year before the
USS coal was bombed, al Qaeda tried to bomb the
USS the Sullivans also in the Port of Aiden and Yemen,
and that strike failed because the dinghy, the crew and
the explosives that they tried to get close to the
(04:22):
Sullivans sank from the weight. Now imagine if we had
had intelligence that that was going to happen. And we
decided to take a pre measure and take that boat
out before it could get to our destroyer. I think
(04:43):
you could imagine a situation where if you had an
al Qaeda fighter, a jihatist who had survived the strike
and who was floating in the water, had a chance
to get back to the shore and had been able
to grab some of the explosives that were intended to
blow up our destroyer, you could say that that person
(05:07):
was both shipwrecked but also in a position to complete
the mission, and also a legitimate enemy combatant target. So
I think that's why it's a little bit difficult to
just make a categorical rule that any time people are
shipwrecked they are necessarily yours to combat and can't fight
(05:31):
and complete their missions. I just think it's very hard
to analogize that kind of a hypothetical to this situation
because the people we're talking about are drug dealers. They're
not enemy combatants to begin with, and the idea of
like they're still if they're floating on a piece of
(05:54):
the hull that hasn't sunk, and they might be able
to get their drugs to the shore, even the shore
is miles and miles away, and they're out there in
the middle of nowhere, and there's no other boat that
they're supposed to meet up with that's anywhere on site.
The idea that they're not only enemy combatants, but they're
(06:14):
unlawful enemy combatants, you know, such that we ought to
make the worst assumptions about them and say that if
they're able to, you know, claim their cocaine and hang
on on the hull of the ship for long enough,
they might be able to complete their mission. That seems
kind of crazy to me.
Speaker 1 (06:31):
So I'm this is unfortunately a fairly short segment, Andy,
and I just have about thirty seconds left here, So
just give me a short answer to this. A lot
of what seems to be happening here is Republicans are
saying Trump has designated these cartels as terrorists, and we
can do anything we want to to terrorists. So my
question for you is is that true that if the
(06:54):
president designates a group as terrorists, then the military can
do anything they want to to them.
Speaker 2 (06:59):
True? The designation process is a statutory process. It only
gives the president authority to prosecute people who provide material
support to terrorism and to seize assets and I think
Ross just quickly that the whole designation itself is dubious
because in federal law, narcotics trafficking is not terrorist activity.
(07:21):
Terrorist activity has a very exacting definition under US law,
and we have a lot of law that defines narcotics trafficking.
Speaker 1 (07:29):
Andy McCarthy is a former federal prosecutor contributing editor at
National Review. One of his recent pieces the Terrorism Confusion
in the Caribbean. Thanks for the great insights as always, Andy,
Thank you, Ross
It's time to talk with my good friend and former
federal prosecutor Andy McCarthy. He's also a contributing editor at Yes,
I Got to Mute myself. Thank you Dragon. He's also
a contributing editor at National Review. And Andy's been writing
a fair bit with what I think is the best
analysis of these drug boat strikes. Two real issues, actually,
(00:21):
and they're quite separate issues. Are the strikes on the
drug boats as an overarching thing legal and then the
second strike, which was really the thing that's been in
the news so much lately. Is that legal or potentially
illegal for a different reason than the first strikes might
be illegal. It remains to be seen whether this issue
(00:42):
is going to sort of fade away or not. But
in the meantime, a few of us actually care whether
the government follows the law. So Andy, it's good to
see you again, Good to talk to you again. Thanks
for being.
Speaker 2 (00:53):
Here, my pleasure. Ross great to see you.
Speaker 1 (00:58):
Why don't you just sort of describe for us why
the question of the legality of the second strike may
be different from the question of legality of the first strikes,
like if the first strikes are legal, which is a
question the second one on this that has made the
(01:19):
news might still be illegal.
Speaker 2 (01:22):
I think it comes down to whether you think the
laws of war apply to this what the administration calls
a non international conflict involving non state actors. The which
they allege or who they allege are connected to drug
(01:43):
cartels that the President, in my mind dubiously has designated
as terrorist organizations. So there's a lot of there's a
lot of legal wrinkles here. But I think if we
decide russ that the laws of war don't apply, then
I don't think the second strike is all that distinguishable
(02:05):
from the first strike. If you decide that the laws
of war do apply, and therefore that the cartel members
are enemy combatants and therefore legitimate targets, the first strike
is justifiable, and the second strike gets into I think
(02:28):
a complicated area of US and international law regarding what
constitutes someone being ors to combat, which means that you're
out of the fight if there's no doubt. Under the
standards that apply internationally, people who are shipwrecked are deemed
(02:49):
to be oars to combat. Whether that's true under US
law is a little bit more tricky question. I think
ultimately the answer is probably yes, But it may also
just be a question of fact. The Second Geneva Convention,
which we are members of, talks about being shipwrecked as
(03:14):
being oars to combat. What ours to combat means is
that you're essentially that you're wounded, sick, unable to fight,
sometimes attempting to surrender. And those people have always been
under international law, at least since the Second World War
era there deemed to be illegitimate targets. Now, what I
(03:38):
think the American commanders would say and why I say
this is a question of fact, and this is very hard,
I think to understand in the context of drug dealers,
who I don't really think are enemy combatants. But let's
just imagine say it was al Qaeda. The example I
used with Rich Lowry on our podcast at National Review
(03:59):
last week was, if you remember, the year before the
USS coal was bombed, al Qaeda tried to bomb the
USS the Sullivans also in the Port of Aiden and Yemen,
and that strike failed because the dinghy, the crew and
the explosives that they tried to get close to the
(04:22):
Sullivans sank from the weight. Now imagine if we had
had intelligence that that was going to happen. And we
decided to take a pre measure and take that boat
out before it could get to our destroyer. I think
(04:43):
you could imagine a situation where if you had an
al Qaeda fighter, a jihatist who had survived the strike
and who was floating in the water, had a chance
to get back to the shore and had been able
to grab some of the explosives that were intended to
blow up our destroyer, you could say that that person
(05:07):
was both shipwrecked but also in a position to complete
the mission, and also a legitimate enemy combatant target. So
I think that's why it's a little bit difficult to
just make a categorical rule that any time people are
shipwrecked they are necessarily yours to combat and can't fight
(05:31):
and complete their missions. I just think it's very hard
to analogize that kind of a hypothetical to this situation
because the people we're talking about are drug dealers. They're
not enemy combatants to begin with, and the idea of
like they're still if they're floating on a piece of
(05:54):
the hull that hasn't sunk, and they might be able
to get their drugs to the shore, even the shore
is miles and miles away, and they're out there in
the middle of nowhere, and there's no other boat that
they're supposed to meet up with that's anywhere on site.
The idea that they're not only enemy combatants, but they're
(06:14):
unlawful enemy combatants, you know, such that we ought to
make the worst assumptions about them and say that if
they're able to, you know, claim their cocaine and hang
on on the hull of the ship for long enough,
they might be able to complete their mission. That seems
kind of crazy to me.
Speaker 1 (06:31):
So I'm this is unfortunately a fairly short segment, Andy,
and I just have about thirty seconds left here, So
just give me a short answer to this. A lot
of what seems to be happening here is Republicans are
saying Trump has designated these cartels as terrorists, and we
can do anything we want to to terrorists. So my
question for you is is that true that if the
(06:54):
president designates a group as terrorists, then the military can
do anything they want to to them.
Speaker 2 (06:59):
True? The designation process is a statutory process. It only
gives the president authority to prosecute people who provide material
support to terrorism and to seize assets and I think
Ross just quickly that the whole designation itself is dubious
because in federal law, narcotics trafficking is not terrorist activity.
(07:21):
Terrorist activity has a very exacting definition under US law,
and we have a lot of law that defines narcotics trafficking.
Speaker 1 (07:29):
Andy McCarthy is a former federal prosecutor contributing editor at
National Review. One of his recent pieces the Terrorism Confusion
in the Caribbean. Thanks for the great insights as always, Andy,
Thank you, Ross
The Ross Kaminsky Show News
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