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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I have a cold. How are you?
J. Aughenbaugh: I'm fine.
N. Rodgers: I have my fake fall transition cult because in Richmond, we have fake fall, and then we have
real fall.
J. Aughenbaugh: Yes.
N. Rodgers: When fake fall comes and the temperature drops that first few times, I'm like, that's it. I'm
going to have a cold now, and I do. Then I get over it, and I'm okay, but I'm sorry, listeners, if I sound like
I'm a little bit off, that's why. Well, that and a lot of reasons why I'm a little bit off days, but that's a
bigger issue.
J. Aughenbaugh: Well, for me, I'm having flashbacks to when I was in school. I was frequently asked, can
you do that? The reason why I'm having flashbacks is listeners we are going to have a little mini series of
episodes.
N. Rodgers: I don't know if it's going to be mini, Aughie. Even in the next three years it may not be mini.
J. Aughenbaugh: Well, but at least at this moment in time, listeners, we're going to do a little mini series
that's entitled Can He Do That? The He is President Trump. We have received a lot of feedback from our
loyal listeners.
N. Rodgers: Can he actually do that?
J. Aughenbaugh: Posing questions. What we decided to do is we picked two or three and to look at this
issue of Can He Do That? The first one we're going to look at, Nia, is something that President Trump
announced on his social media platform, True Social on September 2nd. President Trump announced
that US forces conducted an airstrike on an allegedly drug-laden boat traveling in the South Caribbean
killing 11 people who were suspected of being members of the I'm sorry if I mispronounce this Tren de
Aragua.
N. Rodgers: Tren de Aragua.
J. Aughenbaugh: Since then, Nia, there have been two similar airstrikes, and senior officials, I always like
it when the media says senior officials, who basically are nameless.
N. Rodgers: Who shall remain nameless.
J. Aughenbaugh: Yes.
N. Rodgers: Because they're scared of being named for whatever reason.
J. Aughenbaugh: Listeners, one of the reasons why that phrase always puts a smile on my face is that I
know I will never be a senior administrative administrator.
N. Rodgers: You will when I'm president. Except that when I'm president, I hope you'll feel like you could
just say you could just put your name on something, and not be worried about retribution.
J. Aughenbaugh: Yeah. Reprisals.
N. Rodgers: I would like to hope that my presidency would allow you to just say, Go ahead and put my
name on that. I'm willing to tell. Can I mention something real quick before we go on?
J. Aughenbaugh: Yes.
N. Rodgers: What we're asking here when we ask can he do that is not physically can he do that?
Clearly, they can do this because they did do this. It's a matter of what are the legal
justifications/constitutional justification/that thing for doing something like that. I guess maybe what we
probably should title this series is How Legal is That?
J. Aughenbaugh: Or does the President have the authority to do X, right?
N. Rodgers: Does he had the authority to, fill in the blank thing whatever the thing is. Aughie is being all
diplomatic and saying, "Oh, it's only going to be a few." I'm like, "Oh, no, we're going to be asking this
question for the next three years." But what I thought was interesting about your notes on this, and I'd
like to bring this out is you were like, they haven't said what legal authorities they are acting on.
J. Aughenbaugh: Correct.
N. Rodgers: He just said, Hey, we did a thing.
J. Aughenbaugh: Yes.
N. Rodgers: Then two more times, we did a thing.
J. Aughenbaugh: Yes.
N. Rodgers: The Trump administration is not giving a justification for doing these things. They're just
like, because we just did it.
J. Aughenbaugh: Listeners part of, I guess, the controversy about this is that legal scholars like myself we
frequently go ahead and ask, as Nia just pointed out, so on what authority are you doing this? Or on
what authority are you thinking about doing this?
N. Rodgers: You guys ask that. The regular public just says, I assume that there must be some authority
somewhere to allow you to do this, and they don't ask. But yes, you guys, the scholars are like, "What
are you citing as the underlying here."
J. Aughenbaugh: But Nia, or listeners, what Nia is just getting at, the point that she just made is even if
the administration did have the legal authority from a purely democratic theory, argument, you would
hope that your government is transparent with why they are doing what they are doing. We will get to
how in foreign policy.
N. Rodgers: What explanation have they given, Aughie?
J. Aughenbaugh: Is basically trust us that this was a national security threat.
N. Rodgers: No, I got this. Trust me. Oh, oh, really? I'm not saying that, oh sound necessarily about
Donald Trump but about any president who answers the question of why did you do this? Oh, trust me.
It needed to be done.
J. Aughenbaugh: We need usually a little bit more. What we're going to do here for roughly the next 20
25 minutes, is we envision these to be one of our short episodes because it's in the news. Really quickly,
Nia, you're familiar with what many legal scholars have pointed to as a potential source of authority for
the Trump administration. The reason why I say Nia is familiar with this is that one of Nia's degrees is in
Homeland Security and emergency preparedness. According to legal scholars, Trump could argue that
the basis of these air strikes on these Venezuelan gangs drug dealers is the authorized use of military
force. There were two of them. One was passed in 2001 almost immediately after the 9/11 attacks. The
full blown, full bodied version was passed by Congress in 2002, which allowed the Bush 43
administration to embark on the global war on terrorism.
N. Rodgers: That was, go ahead and invade whatever you need to do. Go ahead and fight whoever you
need to fight. This can't be allowed to stand without reply.
J. Aughenbaugh: Now, the relevant section of the authorized use of military force resolution. I bolded
this in our research notes. The president, has the authority to use all necessary and appropriate force
against those nations, blah, blah, blah, or harbored such organizations or persons in order to prevent
future acts of international terrorism against the United States. So a president could go ahead and say,
these Venezuelan drug gangs might engage in terrorism against the United States in the future.
N. Rodgers: If you define drug distribution as a terrorist act. You can see the multi-step process that
you're using to get to this. First, you use a terrorism threat by saying drugs coming into the country are a
terroristic threat, and then you use this authorization to stop that.
J. Aughenbaugh: That's right. Now, the problem for many legal scholars, if they are being generous, is
that at the same time, you have the AUMF, the authorized use of military force. We still have, on the
books, metaphorically speaking, the 1973 War Powers Resolution, which was established by Congress at
the tail end of the Vietnam War. It basically says that a president has to notify Congress, that they are
using military force against an enemy of the United States. The problem for the Trump administration is,
okay?
N. Rodgers: Truth. Putting it on truth social does not constitute notify by Congress. One could argue that
in the modern world, it might, but that is not what Congress intended. Congress intended to be notified
in a more formal manner than, hey did you see the president's post on Truth Social?
J. Aughenbaugh: Listeners, Nia is employing a loose construction of the war powers resolution. This is
what Congress intended. If you go by the strict letter of that law, there's a process a president has to
follow. What Congress' intent was, what the specific wording of the War Powers Resolution says, is that
the president before they do something, has to notify the leadership of Congress.
N. Rodgers: Before you engage in military actions?
J. Aughenbaugh: Yes.
N. Rodgers: You have to say, here's why and give some justification. I would assume.
J. Aughenbaugh: Yes.
N. Rodgers: Although I suppose, technically, you don't have to justify, you just have to tell them you're
doing it. Part of that, folks, comes from the early engagement of the Vietnam War was not cleared
through Congress. That was a whole thing that just grew and grew and grew.
J. Aughenbaugh: When LBJ finally did get around to asking Congress for some approval, it was the Gulf
of Tonkin Resolution. Then, basically Johnson went ahead and conducted the war. Then Nixon, went
ahead and conducted the final stages of the war without telling Congress. Congress was finding out
stuff, like the rest of the American public, when either they watched the news or they read about it in
the New York Times and the Washington Post. That's why Congress passed the War Powers Resolution.
We as the leaders, the representatives of the people need to be notified of this before you do
something. Even after you do something, you must come back and report how that military action is
going.
N. Rodgers: The AUMF, is mostly about known terrorist organizations. Think Al-Qaeda, groups like that.
It's been used by other presidents. Like just to say, Oh, no, we're going to go mess with people ISIS and
Syria. We're trying to defeat these people in a variety of places, but it tends to be what we would think
of as organized terrorist groups.
J. Aughenbaugh: Well, particularly terrorist organizations that either were complicit or sympathetic to
the 9/11 attackers.
N. Rodgers: That's Al-Shabaab in Somalia. They didn't involved, but they were sympathetic. Hamas,
Hezbollah, all supported.
J. Aughenbaugh: Trump wanted the Iranians. Any number, you could tie it to the difficulty here, and
now we're pivoting to critiques, is that the Trump administration has made no attempt to tie the
Venezuelan drug gangs to international terrorist organizations that have called out the United States.
N. Rodgers: As far as we know, Tren de Aragua, does not have connections to Al-Qaeda, or to Hezbollah,
or to Hamas. I mean, not that we know of.
J. Aughenbaugh: They've specifically called out the United States as some evil empire that has been
meddling in their domestic politics. These are drug gangs. Drug gangs in Central and South America
aren't going to be calling out the United States as evil or as a threat when a good chunk of their
customers are whom?
N. Rodgers: The Americans.
J. Aughenbaugh: Americans.
N. Rodgers: You don't bite the hand that feeds you generally. You can, but it's not a great choice.
J. Aughenbaugh: Now, Nia, I found a whole bunch of literature, that has compared what Trump did with
these airstrikes as even worse than, something that the Obama administration did that you and I off
recording have been extremely critical about.
N. Rodgers: Aughie is plucking at one of my nerves now because he knows that this infuriates me. I,
generally speaking, I'm fine with presidential power and whatever, yadda yadda yadda. But the idea that
you can rain death down from a drone on someone without due process. An American citizen killed in
Yemen, I don't care how many memos you write saying it was a good idea. It was a bad idea. It's just it is
not okay to do that. The infamous drone memo where they're like, No, no, no, this is how we're
justifying this. There is no way to justify this. If we're not going to have due process, which is what I'm
angry about in terms of this action as well, these people did not have due process. We don't know
whether that was 11 monster drug dealing complete jerks or whether that was a mom and 10 kids. We
don't know who was on that boat. I'm not a big fan of skipping over the due process thing. You need to
have your time in court. You need to be able to face your accusers. That's the whole foundation of
democracy to me. Oh, sorry, Aughie. I know I had a moment there.
J. Aughenbaugh: No.. Listeners, what I want to emphasize with what Nia just mentioned is the Obama
administration had what's now referred to as the infamous drone policy.
J. Aughenbaugh: The drone policy, which was laid out in a memorandum that was produced by the
Obama Administration's Office of Legal Counsel, basically went ahead and argued that President Obama
did not have to follow due process when utilizing drones to kill US citizens, and went ahead and argued
that no only was due process not required, but that the Obama administration did not have to get
advanced approval from Congress to do this. In part, they rooted it in the AUMF, but they also tried to
root it in Supreme Court precedent that basically said in foreign policy, the president is the sole organ of
directing, formulating, implementing US foreign policy.
N. Rodgers: That is true. I'm not arguing that.
J. Aughenbaugh: Historically, that has happened. But at the same time, if you believe in checks and
balances, it's checks and balances that apply to the office, no matter who occupies it. Not only do, for
instance, Nia, me, and other scholars have a problem with the Obama Administration's drone policy, we
have a problem with Trump saying, trust me or trust my instincts-
N. Rodgers: These are bad guys.
J. Aughenbaugh: -that these are bad guys.
N. Rodgers: No. That's why we have a court system, so we can all determine, no, those are bad guys.
Let's see what we're going to do about it.
J. Aughenbaugh: That's why we have checks and balances, and that's why we would like to see evidence
that, one, okay, these members were or these people who were killed are members of a drug gang. We
would like to know what is the evidence that this particular organization is related to violence and drug
running associated with that criminal private sector activity.
N. Rodgers: What if this was just a bunch of people, not members of Tren de Aragua?
J. Aughenbaugh: It's not because Nia and I have a problem with Trump per se. It could be any president.
I want to know what is the evidence. I would like to see the president go ahead and present the
evidence to Congress so that another body of the government says, yeah, these were bad people. Now,
let's be very clear. International law explicitly says nations may respond to potential invasions. In other
words, you don't have to wait around.
N. Rodgers: You don't have to stand at the beach while you're waiting for the boats to show up, and
then they grab you, and then you're like, now we can go. As we saw with Poland, not too long ago,
Poland shot down a bunch of drones over its territory overflown by Russia because they're like, no.
That's perfectly legal in terms of international law.
J. Aughenbaugh: International law. But the problem here is, Nia, once again, the Trump Administration
has not even claimed that the Venezuelan drug cartels are an invading force. I put this in my research
notes. What Trump did with these airstrikes reminds me of a plot from a well-known Tom Clancy book
that was adapted into a movie starring Harrison Ford as Jack Ryan, Clear and Present Danger, where you
had a fictitious president who goes ahead and signs a secret CIA authorization that drug lords, I believe it
was in Mexico. Was it Mexico?
N. Rodgers: Or Colombia.
J. Aughenbaugh: Colombia, excuse me.
N. Rodgers: Maybe it's Colombia.
J. Aughenbaugh: No, it was Colombia presented a clear and present danger to the United States. I was
just like, we're now utilizing-
N. Rodgers: We're now taking reality from movie plots.
J. Aughenbaugh: -plots.
N. Rodgers: Oh, my gosh.
J. Aughenbaugh: Again, the point of the movie was, in a democracy, presidents don't get to unilaterally
go ahead and say this is a clear and present danger.
N. Rodgers: You know what? It would be fine if we had a public discourse, not just Donald Trump, but
Congress and the courts had a public discourse of does drug dealing constitute a terrorist act? Is that
terrorism in the modern version of what terrorism is? If so, then how can we deal with these people?
But we have not had that discussion societally. We've not talked about whether drug dealers are
terrorists or not. Most of us don't think of them as terrorists. We think of that as black market activity,
which is a whole separate and different thing. The other thing is, if they are terrorists, do we
automatically rain death down upon them? When you have the death penalty involved, one of the
things that you have is a huge number of appeals because putting someone to death is pretty
permanent. I mean, at least currently. Putting someone to death without due process is pretty scary to
me. You'd have to come up with a heck of a better justification than either trust me or here, read this
memo. I don't like it when any president does this.
J. Aughenbaugh: Listeners, Nia is making two salient points that I don't think we should.
N. Rodgers: I'm a little feisty about it. Sorry.
J. Aughenbaugh: Well, no, but you're making two salient points here that I would really like the country
writ large to give some thought to. One, most of the current research about terrorism is that terrorist
organizations are doing it for particular motivations. They are doing it for religious, cultural reasons.
They're doing it in regards to long-held historical geographical disputes, etc. The motivations of drug
cartels is that they want to make money.
N. Rodgers: They're capitalists.
J. Aughenbaugh: We are attempting to squelch them by using a technique that even terrorist experts
are not entirely sure are all that effective in getting rid of terrorism. Because when you respond with
more violence against terrorist organizations, you end up, if you will, giving them more incentives to
want to go ahead and create terror.
N. Rodgers: How's the war on terrorism going? Have any of the terrorist groups disappeared? Not that
I'm aware of. They may be in different forms, but I don't know.
J. Aughenbaugh: The next point you made, Nia, you used the analogy to the appeals process for those
people who have been convicted of crimes in a criminal court and received the death penalty. But I want
to bring us back to a president using the military. The framers wanted civilian control of the military to
make sure that military officers and personnel were checked. This idea that we can have one branch of
government unilaterally decide to use one of the most potent tools of foreign policy, without any
accountability or checking, again, goes against one of the primary or core values written into the US
Constitution. I get it. In a time of war or an invasion, we can't go ahead.
N. Rodgers: Just act quickly.
J. Aughenbaugh: We have to act quickly, and we can't go ahead and get everybody signed off. But again,
I would like to see the justification for why any president would just unilaterally decide to go ahead and
use the military for airstrikes on a boat in the Caribbean. Was there evidence that they were about
ready to go ahead and come ashore at Miami or Charleston, South Carolina?
N. Rodgers: Or Texas or wherever. You can pick a spot.
J. Aughenbaugh: Where's the evidence?
N. Rodgers: The other thing that Aughie and I have talked about off-screen. I don't want to take us too
far off of this. But you did that in International waters when you could have just waited. If you'd waited
an hour or two and seen where they were actually going.
J. Aughenbaugh: Sure.
N. Rodgers: Then if it's within the United States 12-mile.
J. Aughenbaugh: Radius.
N. Rodgers: Every country has a 12-mile radius around itself. Well, every country with a water border
has a 12-mile out to sea. All you have to do is just wait until they're within your territory, and then you
can just say, no.
J. Aughenbaugh: Yes.
N. Rodgers: It seems such a bad idea. I don't like the idea of us, even then, I wouldn't like it because I
don't think we should ever do this without having a court and judicial review. Is this really institutional?
Is it really something that we should be allowing to happen in the name of Americans? That's what
people need to remember is the president acts in your name. That's you killing 11 people on a boat. You
need to decide if you're okay with that without any kind of judicial anything. I don't know. That just feels
like a terrible idea.
J. Aughenbaugh: Listeners, if you're uncomfortable with having the non-foreign policy experts of the
judicial branch be a part of this, well, Congress has to be a part of this. Because the war-making power
of the United States in the Constitution is clearly shared between Congress and the president. The fact
that the president just announced it on social media.
N. Rodgers: You know what? This instance, the president may have thought he would have gotten
congressional approval anyway, because Congress is right now.
J. Aughenbaugh: But that's fine. But again, so much of the Constitution is about process.
N. Rodgers: You should still have to ask even if you know you're going to get a yes.
J. Aughenbaugh: If nothing else, just go ahead and notify them and see if even your supporters in the
leadership of both Houses of Congress are like, hey, wait a minute, Mr. President. Because, again, this
particular president ran for a second term, much like he did the first term, by being openly critical about
how the United States has been active around the world in all kinds of disputes. Well, wait a minute,
here. If you're concerned about the United States getting too active around the world, what are we
doing just bombing boats in the Caribbean?
N. Rodgers: Less war, not more-
J. Aughenbaugh: Yes.
N. Rodgers: -as it were.
J. Aughenbaugh: Yes. Constitutionally, legally, politically, in the lack of transparency.
N. Rodgers: Trump said that these were bad guys.
J. Aughenbaugh: Nia.
N. Rodgers: I'm going to need more than trust me on that.
J. Aughenbaugh: Listeners, Nia and I are really big fans, as some of you well know, of West Wing.
There's an infamous West Wing episode where C.J., the Press Secretary, basically goes ahead and
reminds the Bartlet Administration the US federal government frequently gets into trouble when it
treats American citizens like idiots. That particular episode was the fact that The White House was
thinking about trying to spin how Bartlet didn't like green beans. He was about ready to make a
campaign stop to Portland, Oregon, and there's a whole bunch of green bean farmers in Oregon. C.J. is
like, wait a minute, what are we doing here? Hey, it's not that President Bartlet is against green bean
farmers. He just doesn't like the vegetable. He's not saying that they are bad people. He's not saying that
we shouldn't grow green beans. The problem is, when we start treating the American public like they're
idiots, guess what? They're going to stop trusting us. That's the larger issue that I have. If there is
evidence that that boat had a whole bunch of cocaine.
N. Rodgers: Horrible people who were about to do distributing things and who, in the course of that,
may have also killed people or enslaved people or done all kinds of stuff.
J. Aughenbaugh: Their intent was to go ahead and deliver it to drug dealers here in the United States so
that even more Americans would get hooked on cocaine Then demonstrate. Show that to me. I'm not
entirely sure that I think that's the best way to go ahead and deal with drug gangs.
N. Rodgers: I'm not sure. That's a separate issue.
J. Aughenbaugh: But at least at that point, I'm like, we have a president who doesn't like drugs, would
like to stop the flow of drugs into the United States.
N. Rodgers: I'm down with that. I'd like to stop the flow of drugs in the United States. I don't know if it's
effective to do it this way.
J. Aughenbaugh: But nevertheless, there seems to be some justification. But there's been crickets.
There's been nothing. No attempt to even go ahead and say I am the commander-in-chief. We can
debate that. By the way, that's been debated throughout the history of the United States. What did the
framers mean by that actual phrase in Article 2 of the Constitution? But when you stop having those
conversations, that's when I'm just going to like, I'm against this, even if I'm for the policy outcome.
N. Rodgers: Exactly. The means does not justify the ends.
J. Aughenbaugh: That's right.
N. Rodgers: In many instances, saying, well, but we got what we wanted in the end. Yet, no, you set fire
to the entire place to try to kill a rat. That's when you burn down a house to kill a rat.
J. Aughenbaugh: Yes.
N. Rodgers: No. That's not how we kill rats. We don't have to burn down the house to do it.
J. Aughenbaugh: The house, yes.
N. Rodgers: What are we doing here? Why are we not talking about it? Why are we not having these
adult discussions in civil discourse, where we say to people, you know what? I don't like drug dealers.
Nobody's like, no, I'm pro drug dealers. Well, maybe a few people are, but most people would say, but is
that really going to solve the problem? Is that really?
J. Aughenbaugh: There's a reason why.
N. Rodgers: That's the other thing is does this mean that's going to end boats full of cocaine coming
from Colombia or Venezuela, or wherever? No.
J. Aughenbaugh: No. They're going to find a different pathway. What?
N. Rodgers: They go that way. Well, then we'll go around the Pacific and we'll come on down through
Canada or whatever, even though they're not going to Canada.
J. Aughenbaugh: We're now going to target boats in the Gulf of Mexico or the Gulf of California.
N. Rodgers: Don't go fishing. That's the other thing is I hope you got the right boat.
J. Aughenbaugh: Good lord.
N. Rodgers: We might never know.
J. Aughenbaugh: Again, to your point, they did it in international waters, according to some, because
they wanted to avoid any close to the US shore scrutiny, which again, then begs the question.
N. Rodgers: If you weren't doing something shifty, why were you trying to hide it?
J. Aughenbaugh: As somebody in their youth frequently did shifty stuff, I was frequently trying to hide it.
Anyways, Nia, yes.
N. Rodgers: To wrap this up, what we would like to know is what the administration's justification is.
We've given you what we think they could use as a justification and the limits on that justification. We
would like to know what they are saying is the justification for doing this.
J. Aughenbaugh: Yes.
N. Rodgers: The jury is out on whether you could legally do this. Can you do it? Clearly, it happened, so
it can happen. But was it legal, or was it extra legal? That's still a debate to be had.
J. Aughenbaugh: For our listeners who are Trump supporters, mind you, a lot of our criticism here is not
just about President Trump. It's about any president-
N. Rodgers: Doing this.
J. Aughenbaugh: -who does this. It's the Office of President, no matter who's the occupant, who
basically has the guts, the chutzpah to go ahead and say, I don't have to explain this. Well, wait a minute
here.
N. Rodgers: What can you do?
J. Aughenbaugh: In the American form of democracy, you have to.
N. Rodgers: It's written in.
J. Aughenbaugh: As I'm fond of saying, it's baked into.
N. Rodgers: Exactly. It's baked into the system.
J. Aughenbaugh: Somehow, that's right. Thanks, Nia.
N. Rodgers: Because we don't have kings here.
J. Aughenbaugh: Yes.
N. Rodgers: Thanks, Aughie.