America’s Lawless Wars—From Chicago to Caracas (w/ Ryan Goodman)

Summary

Podcast Summary: Bulwark Takes – "America’s Lawless Wars—From Chicago to Caracas (w/ Ryan Goodman)"
Date: October 5, 2025
Host: Bill Kristol
Guest: Ryan Goodman, NYU Law Professor, co-editor at Just Security

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Episode Overview

In this in-depth conversation, Bill Kristol speaks with legal scholar Ryan Goodman about the unprecedented expansion of presidential powers in the U.S., focusing on the blurred lines between domestic and foreign policy under President Trump. They analyze how recent executive actions—particularly the use of force both within American cities and abroad in the Caribbean—break with legal tradition, strain constitutional boundaries, and test the resilience of the judiciary and other checks on executive authority.

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Key Discussion Points

1. Commander-in-Chief Powers: From Domestic Deployment to Caribbean Warfare

• Domestic Expansion:
  • Recent claims by President Trump to use the National Guard and even federal troops in U.S. cities, including Portland and Chicago, are explored as a disturbing escalation. Goodman highlights the President’s rhetoric that frames domestic opposition as "the enemy within," now openly targeting left-wing protesters and blurring the lines between civil unrest and national security threats.
  • Kristol asks, “Where are we in terms of the President's ability to federalize National Guards, to send federal troops to places in the US?” (01:09)
  • Goodman: “We have the operations on the high seas ... and then operations inside the United States, which now according to the President are the enemy within ... these things are joined together ... much more threatening in terms of the overuse of presidential powers...” (01:54)

2. The National Security Presidential Memorandum (NSPM-7)

• Broad Scope & Lack of Checks:
  • Goodman dissects NSPM-7, issued recently, which redefines domestic threats through a national security framework, allowing far-reaching surveillance and investigation.
  • Notably, the memorandum omits standard civil liberties protections—such as prohibitions against targeting individuals for First Amendment activity—and instead expands targets to include “anti-Americanism, extremism on migration, race, and gender, and hostility toward those who hold traditional American values” (07:02).
  • Goodman warns: “It is just extraordinary in its target set ... The indicators ... are things like ‘anti-Americanism’, extremism on migration, race and gender, and hostility towards those who hold traditional American values ... usually with these kinds of authorities, there is strong language to say ... do not target people on the basis of their First Amendment rights ... that's missing from this memorandum.” (07:02–11:31)

3. Domestic Terrorism Designations and Legal Overreach

• Executive Overstep:
  • The new approach tries to create a mechanism for designating domestic groups (e.g., Antifa) as terrorist organizations—a power never granted by Congress out of concern for civil liberties.
  • Goodman points out: “That is trying to rule in a certain sense by executive decree where Congress has sought fit never to create a domestic terrorist designation authority.” (11:31)

4. Aggressive Use of Immigration Enforcement and Law Enforcement Agencies

• From Immigration to Militarization:
  • ICE and even the IRS are invoked under the new authorities, broadening the focus from foreigners to explicitly targeting U.S. citizens.
  • Paramilitary raids, as in the Chicago operation by Border Patrol with Black Hawk helicopters, are indicative of a “deliberate strategy” rather than mere overzealous enforcement (14:15–16:04).
  • Goodman: “This is definitely turning the power of the government and law enforcement agencies towards American citizens... That, I think, is the road that we appear to be going down.” (14:15)

5. Caribbean Strikes: ‘War’ on Cartels and Constitutional Crisis

• Precedent-Free Use of Lethal Force:
  • The discussion turns to the revelation, via leaked Congressional notification, that the administration claims the right to kill alleged drug cartel members at will on the high seas, as “unlawful combatants.”
  • The legal community, across ideological lines, rejects the administration’s novel legal justification. Goodman cites experts: “John Bellinger ... said it's making a mockery of international legal terms ... John Yoo ... writes ... this is not war ... Marty Lederman ... said basically this amounts to ... murder.” (20:32–25:35)
  • The danger: there is no geographic or citizenship limit. This logic could authorize killings even inside the U.S.
  • Kristol: “We’re fighting a war that the President has unilaterally declared without any congressional authorization ... blowing up people who may not even be combatants in this war.” (25:35)

6. Administrative and Institutional Resistance

• Pushback and Resignation:
  • Goodman describes resistance at the U.S. Attorneys' level—a few instances of resignations and whistleblowing in response to perceived illegal or vindictive orders (30:52).
  • Less transparency is observed in DOD and DOJ at higher levels regarding the legal rationale for these actions, raising worries about the lawyers being excluded or overruled.

7. Role of the Courts and Congress

• Judicial Checks:
  • District courts have pushed back against executive overreach, e.g., Judge Breyer in California enforcing the Posse Comitatus Act and Judge Immergat (a Trump appointee) in Portland holding that martial law claims were without foundation (35:52).
  • However, courts have traditionally deferred more to the executive on military actions overseas, complicating legal challenges to Caribbean operations.
  • Congressional approval is constitutionally required for war; the War Powers Act clock is now ticking, with a decisive moment coming in early November (35:52–39:47).

8. What Happens Next? Inflection Points

• Upcoming Tests:
  • Key inflection points will come if military action expands—such as opening a new war front in Venezuela—or if Congress takes legislative action to limit operations (44:18).
  • Goodman: “This is a new forever war potentially ... This has not historically been a partisan issue ... that is an inflection point in terms of the direction that it goes to see where that happens.” (44:18)
  • Supreme Court intervention could come rapidly as the Solicitor General escalates/emergency dockets are pursued (46:15).

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Notable Quotes and Moments

• On Judicial Pushback:
  “The pushback, just for folks understanding, is the factual predicate for all of this ... The factual inquiry shows that these claims of a war zone in Portland are just fabricated, essentially.”
  — Ryan Goodman (03:29)

• On the White House’s Legal Arguments:
  “National security lawyers across the country basically think this is bunk. Like, there's no legal justification for it. This is using words that sound in law, but they're not anything about what those legal terms or concepts are meant for.”
  — Ryan Goodman (23:18)

• On the Danger of Precedent:
  “There’s no geographic limit to the authority. There’s no citizenship limit ... if these were citizens on the high seas or inside the United States, there's no reason, according to this legal framework, that it wouldn't apply.”
  — Ryan Goodman (27:21)

• On Growing Concern:
  “These statements, these positions by the executive, are so out of whack with both the facts ... and the law ... I think courts might not strictly bind themselves by the past precedents because we're really in a very different moment.”
  — Ryan Goodman (43:42)

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Timestamps of Key Segments

• Opening and Overview – 00:00–02:46
• President’s Use of Commander-in-Chief Powers – 02:46–07:02
• Dissecting NSPM-7 and Targeting Speech/Protest – 07:02–11:31
• Terrorist Designations, ICE, and Domestic Policing – 11:31–18:35
• From Immigrants to Citizens: Broadening Enforcement – 18:35–20:20
• Caribbean Boat Strikes & The Legal "War" on Cartels – 20:32–28:35
• Lack of Legal Safeguards, Administrative Response – 28:35–34:26
• Role of the Courts and Congress – 34:26–43:42
• Upcoming Inflection Points & What To Watch – 43:42–47:25

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Conclusion

This episode lays out in stark terms the erosion of constitutional and judicial guardrails faced by America today, underlined by expanded executive power justified by re-interpreted national security needs. From Chicago’s militarized streets to lethal force in the Caribbean—without meaningful congressional or judicial checks—the podcast warns of a new and alarming precedent. Both Kristol and Goodman underscore the need for vigilance among judges, lawmakers, and career officials, with the next few months set to determine whether America's institutions can adapt and respond to such extraordinary challenges to established legal norms.

Transcript

[A]

Hi, Bill Kristol here. Welcome to Bull work on Sunday. Very pleased to be joined by Ryan Goodman, professor of law at nyu, editor, maybe co editor of the Just Security website, which is a must read if you're interested in questions of national security and their overlap with interaction with questions of law, I suppose, which there's a lot of, a lot of those questions these days, a lot of overlap and a lot of of argument about them. So that's what we're going to discuss today. I mean, in light of what's been happening both domestically in terms of the President's, I guess invoking of his national security powers, his commander in chief powers to do things here at home, National Guard, some of the ICE stuff, even the national security memorandum, and then also abroad in terms of blowing these boats out of the water in the Caribbean and stuff and maybe the relationship between those two. So lots of COVID I really think it's a we won't cover everything else we could discuss about executive power in the law, you know, but I do think the commander in chief side of it, so to speak, is don't you think, is sort of a, maybe a coherent thing that we can cover a little bit, at least in 30, 40 minutes. So thanks, Ryan, for joining me.

[B]

Yeah, thank you so much. Looking forward to it.

[A]

And you've written excellently on this and published such good pieces. So maybe we should begin with the domestic side. I mean, normally one thinks commander in chief, one thinks foreign policy, but I do think pretty hard to understand the President's claims, which is put this way about use of the National Guard to some degree. A lot of the claims in the immigration sphere and the use of ICE are, let's call it national security. Are they related? So and then the question of how much the courts can do gets becomes related to national security law. So I mean, what do you make of it all? Where are we in terms of the President's ability to send to federalize National Guards, to send federal troops to places in the US to deal with problems that he sees real or imagined.

[B]

So I think we're in a very different place than when we last had a conversation in the sense that everything that you just described, I believe comes together whereby we have the operations on the high seas against so called unlawful combatants, according to the President, and then operations inside the United States which now according to the President are the enemy within, according to his speech to the 800 plus most senior military officers. So I do think that these things are joined together in a way in which we just spoke A few weeks ago. It's enormously different terrain and much more threatening in terms of the overuse of presidential powers or the claim to presidential powers which might not actually exist.

[A]

That's so interesting. So, yeah, say a little more about that. I mean, what are the base, what are the claimed powers and let go in whichever order you want. Maybe these can't even be separated really that much. The Caribbean and Chicago, you know.

[B]

Yeah. So I think starting maybe from the domestic front, since that's the inflection point that was just reached in the past week with Trump and Hegseth's remarks before the most senior military officials from around the world. And that's the claim that he's exercising his commander in chief authority. That's why he's speaking to the military. He's not speaking to the FBI or something like that, saying that this is the new frontier. You've taken an oath to fight the enemy, foreign and domestic. And then he turns to the domestic, invoking, if we talk about law and the legal framework, invoking his executive order, that calls for creating a rapid deployment force of the National Guard, invoking the National Security presidential memorandum more as an illusion. He didn't do that one as explicitly, but he's doing it pretty explicitly, saying that these people are domestically insurrectionists. So we're not just talking about the idea that he's saying, oh, it's an invasion from within, which he said that as well, which might be, people might think is a reference to migrants or something like that, or tda, Trinidad, Venezuelan gang. But he's definitely focusing in on what he considers to be left wing protesters and the like. And they sometimes tie that to violence, but it's not always tied to violence. I think that's the front. And then we're having this conversation right in the wake of a Trump appointed federal district court judge, Judge Karen Immerget, having said, this is not our history, this is not our tradition of basically an imposition of martial law in Portland, Oregon and placing a temporary restraining order on the President's ability to mobilize the National Guard in that instance, in a remarkable pushback. The pushback, just for folks understanding, is the factual predicate for all of this. So she's actually very good about saying there is deference, there's significant deference that judges owe the executive branch in questions like nationalization of the federalization, excuse me, of the National Guard. But he can't have his facts as he deems them. The factual inquiry shows that these claims of a war zone in Portland are Just fabricated, essentially. She doesn't use those terms. Hers is a very measured opinion, but that just happened. That's one of the ways in which the system is, I think, holding. But it's the concern about, you know, Chicago seems to be next, according to Governor Pritzker.

[A]

You mentioned that national Security Presidential memorandum. I think it's NPSM 7, which was issued, what, about 10 days ago, a few days before the resident and the Secretary of Defense spoke to the, to the general and flag officers. Say a word about that. And is. How important is that? I mean, it is striking. It's about domestic things, I think it's fair to say it's about actions here at home. But it's a national security memorandum. I think that for me was just very striking. It's not like the normal. I don't know, when I was in the Bush Quail White House, the Bush White House, way back when, Vice President Quail's Chief of Staff, you know, the president, George. George H.W. bush sent the Guard with the consent, or I think at the request maybe of the Governor of California. We sent troops to Los Angeles to help quell pretty big riots in 1992 after the Rodney King verdict. But there was no, it wasn't national security. I mean, he was using the National Guard in a way that is rare but is, I think, okay for a genuine, you know, legal crisis. Law, law enforcement, violence crisis, Violence crisis, let's call it just the way the National Guard could be used when there was flooding or other, you know, disasters. But no one thought this was a ma. This was like a national security exercise, I guess. And what struck me about that memorandum, but you should explain it much better than I can. I mean, is. Is the attempt to bring the national security rubric into things that are happening.

[B]

Here in the U.S. yeah, so it's. I think everything that you just said, it's using the national security apparatus in such a way which, because it's focused domestically, one can only assume that it's. Stephen Miller is empowered by this. It's like connecting it up with national security concerns and then frameworks, I should say, and then imposing it domestically. It almost. I have to assume that he wrote a large part of it. I mean, it just looks like it comes out of his mind in a certain sense and his rhetoric around this. And I think what people should understand, they should Google it, just NSPM7, is that if you read it, it is just extraordinary in its target set. So the. Using the national security apparatus, the target set are individuals, I would say, in Many instances appears to be exercising First Amendment rights. You can look at that, the memorandum, and identify it time and again. And I can point to some very specific language that is not connected to violence. Like, it means maybe you could have a memorandum of something of that nature if there was domestic violence. But if you just ellipse out violence and keep the other language in there, because it's often an or. So it's like in response to violence or like conspiracy against rights, that's about activity that, even if it were illegal, has no connection to terrorism or violence. And the indicators that they have in the memorandum are really also just extraordinary. So the indicators of what they're calling the domestic threat are things like if people are, quote, unquote, here's the list that includes, quote, unquote, anti Americanism, extremism on migration, race and gender, and hostility towards those who hold traditional American values and family, religion and morality. That's one part of it. Then, as Tom Joslin has written, is also very interestingly, when you read the memorandum, it's what's not in there, what's conspicuously absent. What is conspicuously absent is that usually with these kinds of authorities, there is strong language to say and directing all the way down through all the bureaucracy and agency. Do not target people on the basis of their First Amendment rights. Do not target people based on political activity, political speech and. And the like. And that's missing from this memorandum. So I think that's important. I just want to give a flavor of language that's in here that has no connection to political violence or terrorism. They say they are establishing a national joint terrorism task force that shall, quote, shall investigate potential federal crimes relating to acts of recruiting and radicalizing persons for the purpose of conspiracy against rights. Next one, quote, the Attorney General shall issue specific guidance that ensures domestic terrorism priorities include politically motivated terrorist acts such as civil disorder. So it just gives you a sense of how incredibly dangerous this is. And it's not just the power. And to understand that a large part of the power that's being exercised here is just opening up criminal investigations of people, so fishing expeditions and the like on the basis of what looks like political speech, First Amendment activity.

[A]

And what do you make of the memorandum calling this domestic terrorism, which is not. I don't believe. I mean, there are these joint terrorism task forces. I think each U.S. attorney's office maybe has one in conjunction with the FBI, and they investigate the things that we are very familiar with the FBI investigating, which include criminal activities by groups here at home, by right left Crazy, you know, whatever, you know, cults, you know, obviously that's all something the federal government's been involved in for quite a long time and especially since 911 or even before 911 with the world Trade center and so forth with the, you know, the original attacks in the early mid-90s and before that. But, but this. Yeah, so, but again, those, those that already existed. Right. There's no. The FBI has the ability and the Justice Department has the ability and has used that ability many, many times to investigate crimes or conspiracies, to commit crimes here on American soil. But what strikes me is, yeah, both. It's a national security memorandum. But what do you make of the use of domestic terrorism?

[B]

So I think this has to be understood in connection with the notion that the President can now designate certain groups as domestic terrorist organizations so that people understand. I think the most important piece to understand about that is that is trying to rule in a certain sense by executive decree where Congress has sought fit never to create a domestic terrorist designation authority. There is no such thing in legislation that gives the power to the executive branch to do that out of concern for that these powers would be used to target people based on their First Amendment activity and the slippery slope that it leads to. Yes, there is actually statutory authority for the executive branch to do that for foreign terrorist organizations, which has been used very well in many respects, but not domestically. So I think this all is trying to tie it in and designate such as Antifa as though it is a terrorist organization. One might even say as though it is an organization first and then as though it is a terrorist organization designated as such when there is no such designation. So I think that that's the road that this is going down. And it's. I think it might be no coincidence that the CNN recently reported that the Eastern District of Virginia, which is the same U.S. attorney's office that indicted James Comey, is investigating the leadership of Chris Wray at the FBI during the Trump years. And I think it might be no coincidence because Chris Wray was one of the most significant voices testifying before Congress by saying antifa is not an organization, it is just an ideology or a movement in a sense. And so. And that far right violence was the greatest threat to the United States domestically. So I think that's the situation we're in, at least to try to get a situation analysis of what's going on.

[A]

Very useful. And how does, I guess, immigration and ICE fit into this? Because it seems to me that immigration has always been a little bit on the Border, so to speak, between domestic and foreign policy, obviously. And, and, and in fact, the rules at the border are different from the rules internally in terms of, I believe, people's rights and so forth to some degree. But I, I'm just. Yeah, I mean, I guess I'm struck that this goes beyond, doesn't it? I mean, I don't ask a leading question, but simply deploying ICE aggressively to do, I don't know, to do immigration anti. You know, to do policies to try to discover people who are undocumented or people who are undocumented and have committed crimes.

[B]

Yeah, I think there's a lot of concern in the military community and the like that this is an erosion of military, civilian relationships. That to have the US military on the streets in this kind of a way, I think is a deep concern. So that's one part of that aspect of it that we're talking about. The second aspect of it, with respect to ice, this is definitely turning the power of the government and law enforcement agencies towards American citizens. I mean, that's what the list is all about. That's what NSPM7 is all about. Our US citizen organizations, things like that. That I think is the road that we appear to be going down. Now, a lot of that is using. It also uses the irs. It invokes the IRS in addition to treasury and just the Justice Department, FBI, et cetera. But I think this is also a piece with the ISIS militarization as well. So to me, we went through an inflection point in the last few days with the paramilitary operation conducted in a, an apartment building in Chicago by Border Patrol, apparently forces. So I think that the con. And including Black Hawk helicopters apparently landing on the top of the building, according to ABC News is reporting. And so I think all of these things are lining up in the same direction, which is very deliberate strategy. And I assume in our conversation we'll talk about this cannot be disconnected from what's actually happening in the high seas, in the Caribbean boats.

[A]

Yeah, let's get to that in a minute. Because I think that has not gotten actually as much attention, understandably, I suppose, as stuff that's happening right here in Chicago with cameras, with people taking footage on their phones and stuff. But just. Yeah, so I guess with ice, one might say very aggressive implementation of certain policies, which we can then argue about exactly whether they're being legally implemented or whether the policies themselves are all entirely legal against immigrant. Against people who are not American citizens, let's put it this way, with some American citizens getting caught up in it, incidentally. But they would claim that's incidental and they're released once they realize they're Americans or whatever. I don't think they actually claim, I says, the ability to imprison or deport American citizens. They seems to happen a certain amount, but they claim that's just a incidental byproduct. But I suppose the thing to say, one thing to say is that this National Security Memorandum, as you were saying in the Executive Order, it's explicitly about American citizens. We're not talking about. Right. So it's a different level. It's a different. It's a step beyond people's concerns about ice, do you think?

[B]

I mean, absolutely.

[A]

Yeah.

[B]

Yeah. And exactly in the way that you just described it. Like, it's. It's intentional targeting of American citizens. It's not about foreign nationals or migrants in the country unlawfully, though I suppose it's a.

[A]

There's a bit of a sliding from one to the other. Right. In terms of the. Well, the designation of these foreign terrorist groups, which then slides into. At least rhetorically, slides into domestic terrorism. And they're helping these group. You know, I don't know. I mean, it is. Maybe that's more of the rhetorical, I suppose, legally. Isn't the same thing, though.

[B]

Yeah. Though it's interesting the way in which you asked the question, because it makes me think that what is the true objective? Because the true objective does seem to be about a militarized clampdown on American cities. And you can even see it in the switching framing on Chicago. The President says, oh, it's about crime. Oh, it's about immigration. Oh, it's about crime. It's about immigration. That's why I need to bring in the National Guard. See there, it's about crime. It's not about immigration. So I think the shifting justifications are all still pointing towards these same kinds of ends. And the weaponized use of the Justice Department, irs, et cetera, against. I mean, I want to. I don't want to say the words even like perceived enemies, because they're not. It should not be within the structure of thinking of it as enemies. These are other American citizens.

[A]

I mean, it's another way of saying what you just said is. Yeah, the language use of the Guard and of actually active duty troops was very much framed as a matter of supporting ICE and its immigration efforts. By the time we got to dc, it was really about crime. I mean, at least partly explicitly, supposedly about crime. D.C. is a little unique, so it's a little Complicated as well, though in practice, I say, as someone who lives right outside D.C. a lot of what happened was actually ICE efforts. You know, a lot of it was still targeted immigrants, but now we're so. And Chicago's a little complicated, but other places it's just been crime, whether they're talking about. I mean, I mean, it's not just crime because sometimes the crime is directed, they claim, at ICE agents. But I think we're way beyond helping ICE do its immigration job. And I think. I guess I'm not even. Why am I even saying this? Because that's explicitly the case, that we're now talking about American citizens and we're not even talking about crime anymore just to get to the next. So it's ICE immigration, then it's using the Guard to help out with crime and crime ridden war ravaged cities. And then we're beyond that now to, according to the National Security Memorandum, to using the federal, various instrumentalities of the federal government to go after people who are subversive or whatever one, one wants to use. Right. I mean, who are attacking, who are anti American. So it is a pretty striking progression. I suppose you could argue one does lead to the next in a certain way. Well, in a way, but I mean, but as you say, what that seems to have always. I don't know if it's always been a part of the plan, but it is for them. It seems to be seamless. I guess that's the way I put it. Whatever we think of it and whatever judges may think about this is different from that. I think in Steve Miller's mind, it's all part of one project.

[B]

It certainly appears that way. I mean, it seems like interlocking parts.

[A]

Yeah, it is. Well, speak about the other interlocking part, the actions on the high seas, which I think we both agree have maybe not quite gotten the attention they deserve. Though you've published some excellent things about this.

[B]

Yeah. So the big development in the past week is, thanks to Charlie Savage and Eric Schmidt's reporting at the New York Times, we now know, and it's since been leaked, the Executive Branch has submitted a written notice to Congress, which was required to do under a new statute, giving legal justification to the strikes on these alleged drug smugglers in the Caribbean on the high seas. And the paradigm shift is that the written notice says that the President of the United States has determined that the United States is in an armed conflict with unspecified designated foreign terrorist organization, drug cartels, and that members of the drug cartels, according to the President, are unlawful Combatants, quote, unquote, and therefore, as unlawful combatants, can be killed at will. It does not matter if they're surrendering. It does not matter if they're defenseless. It does not matter any which way. They're just treated like fighters on a battlefield or in their barracks asleep. And they can be shot and killed at any point. And that's the sea change that's just occurred. And I should just add to that. National security lawyers across the country basically think this is bunk. Like, there's no legal justification for it. This is using words that sound in law, but they're not anything about what those legal terms or concepts are meant for. So John Bellinger served as the legal advisor to George W. Bush after 911 national security legal advisor. He said it's making a mockery of international legal terms. John Yoo, who wrote the most expansive Office of Legal Counsel opinions post 911 under the George W. Bush administration, doesn't just say that in answer to a reporter's question, but writes a Washington Post op ed saying that this is not war. Like, you cannot use this as a justification for assuming that there's like, a war with a cartel that doesn't exist. Jack Goldsmith, quoted by Charlie Savage earlier, said, even if you could get to some kind of congressional war authorization, you still can't kill people who would be civilians in that war. Marty Letterman has written great pieces at Just Security, and he knows this area extraordinarily well from working at the Office of Legal Counsel and on things like the issues of drone strikes against US Citizens and things like that. And he said basically this amounts to, regardless if we're at war or not at war, murder. It's either the federal felony murder statute or it's the war crimes that murder. Now, he's not trying to point the finger at the individual operators. He's just saying if you want to assess what's going on here, bottom line, it just ends up being murder. So no repackaging of this can get you any other way around that. And just last thing, I just want to say this in case I forget, but I just want to maybe make sure that it's one of the first things I say. I do think that some people listening to us or watching us might think, well, wait, why does it really matter if the drug cartels are creating as many deaths or many more deaths in the United States through fentanyl than some of the offshoot Al Qaeda groups ever did? And so what's wrong with using a war model to target them as such? There are many things I think I could say about that. But one of the things I'd like to say about that is why is it that Secretary Hegeseth never says that the people who are blown up were carrying fentanyl? The people that were definitely trying to just straight out kill, probably because they're not carrying fentanyl. So the U.S. officials statements, the NEA statements are, sorry, DEA statements, Drug Enforcement Administration on these cartels is that TDA transports pink cocaine. They do not transport fentanyl. If you want to go after fentanyl, then it's Mexican drug cartels. It's Canada would probably be second and China third. And based on the statement of the notice to Congress, which does not specify the cartels, the President, United States is right now asserting authority to do two things, at least go after drug cartels in Mexico. So do people support bombing Mexico? And second, if there are drug cartels whose members are all unlawful combatants, there are unlawful combatants inside the United States who, according to that understanding of international law, could be targeted just on the basis of their status.

[A]

And really, I think you brought home how extraordinary it is. I mean, we're, we're at a war. We're fighting a war that the President has unilaterally declared without any congressional authorization and without any real attempt to even prove, so to speak, that it's a real war against a real state or even a real non state actor, as opposed to a bunch of criminals, deplorable though they are. And secondly, we're blowing for killing people who were not. There's no attempt to even show that they are combatants in this war. Even if they really were war. They could be either just. Well, they could be civilians. And certainly the first boat, the war one here actually does sound like it was just people trying to get to the US probably not people smuggling drugs and not smuggling the drug that they said. I mean, Hegseth says narco terrorists. I think you pointed this out in the last statement he makes. So it's narco terrorists affiliated with a foreign terrorist organization that we've designated as that. And the idea that you could, if we could blow up, quote, narco terrorists who were, quote, without proving that they're narco terrorists who are, quote, affiliated with a foreign terrorist organization that we've just unilaterally designated, apparently. I mean, you're right. What's this? What's the barrier? And what's the barrier to doing it in the United States? Right? I mean, there really isn't any legal. I mean, people say at the, on the high seas A lot as at least it sounds. I don't know what it sounds like. It sounds like term of art or something or legal term. And it is a legal term, obviously in certain respects. In terms of people, you know, who has rights to fishing in certain places or who has what. The Navy. But of course, the Coast Guard board ships on the high seas all the time and turns them around or seizes them and seizes what they're carrying if it's illegal and destined for us. But the idea that we just blow them up, it's pretty mind boggling, actually.

[B]

Yeah. I mean, there's no geographic limit to the authority. There's no geographic limit in the notice to Congress. There's no citizenship limit. I mean, if these were citizens on the high seas or inside the United States, there's no reason, according to this legal framework, that it wouldn't apply to them as well. And I think people need to think about, like, would we think that governments around the world have the right to just kill people that they suspect of engaging in drug trafficking just because they suspect it and then they can just kill them even though they could otherwise apprehend them and subject them to a trial? And you know, just to put the last punctuation point on it, it's not even a capital offense in the United States for what these people are alleged to have done. And we're deliberately killing them. In fact, I think the most recent strike looks like, according to some of the people I know who are experts in this, it looks like they used munitions that are just geared towards lethality. They're not just trying to take that.

[A]

Boat out of the water.

[B]

They're really are trying to kill or murder people.

[A]

And I think one of the earlier accounts, maybe the first bow, was that it was, it was, you know, it was. It had been. It had been struck, but not everyone had been killed. And we went back and. Yeah. Killed those people. That seems like that's not. Well, whatever. But that's.

[B]

Yeah, absolutely. New York Times reported that multiple strikes in order to. Even after the first one didn't succeed as well, to just. So these are people who are totally stranded and returning to ensure that they die. I mean, it's just. You wouldn't do that in warfare.

[A]

I mean. Well, that's the thing. Right. I mean, if you could. Otherwise. Yeah, that's what's kind of.

[B]

Yeah.

[A]

You know, one thing that rattles that's rattled me the most about it. I'm curious if you think this is what you think about this. You know, the national the presidential National Security presidential memorandum is, is, it's not maybe the greatest legal document ever, but it's produced, it's, it resembles one. And it's produced by, it's not personally written by Donald Trump or even Stephen Miller, I'm going to say. I mean, it's maybe he did some, did some work on it and dictated stuff, but it's written by a whole bunch of people who work for him, I guess, but also people at the Justice Department and other relevant agencies who would have to have some input, I should think DoD perhaps. And that's the letter to Congress, notification to Congress in which the President has determined that we're at war also has a kind of legal feel to it. And presumably people somewhere in General Counsel at DoD or justice or the White House worked on that, I guess. I mean, on the one hand, I think it does a little bit. It's useful to remember that, that it's people talk about Trump and Miller and oh my God, they're out of control. How crazy is this? But they're taking off a lot of other people with them in their out of control efforts. And I guess I'm a little rattled by the fact that these documents are being produced. You don't see at least that much publicly about resignations or objections or, or fights about it even. There aren't that many leaks the way they're God knows in the early days after nine, not early, but the year or two after nine, 11, there were huge fights in the Bush administration. And I think, you know, people with decent intentions on different sides, you know, just having. And it leaked out and that was probably healthy, honestly made, you know, made led to more debate and stop some bad things from happening and so forth. And we learned about it, maybe we learned about it a few months later, some cases. But anyway, I guess I'm a little what's happening in the government, I guess is my question. And how many, how far down does the Miller view permeate and how much far down does his ability to shape everything go?

[B]

It's a great question. So there does seem to be significant resistance and opposition in U.S. attorneys offices. So when it gets to that point, like it filters down and it gets to that point, we've seen major resignations, we've seen whistleblowers and the like. And we've seen people just flat out, it seems like, say I will not both hold this job and take that order, like prosecuting Comey, it appears like, or the Abrego Garcia one, which we just now got an opinion from a federal judge saying there's enough evidence here of vindictive prosecution, in part because one of the significant DOJ prosecutors resigned on the day that he was indicted as an indicator. And it's ABC News reporting that the judge refers to, which said that he was doing it because he thought that the indictment was politically motivated. So I think there's where we see resistance. I do think it's very curious what's happening at DOD and DOJ main justice with respect to these authorities. I hope that when Attorney General Pam Bondi goes before the Senate Judiciary Committee this week, she's asked about the full gamut of things, but also including the Caribbean boat strikes in that notice to Congress because it seems heavily lawyered. Normally, very normally, the Office of Legal Counsel would be involved. And if they weren't involved, that's a problem. And if they were involved and signed off on that bogus, bogus legal analysis, that's very important for the government to know and think the Senate Judiciary Committee to know. And then there's reporting that the general counsel of DoD, when he gave a brief, was part of the briefing to Congress this week on the notice and the legal basis for killing these people on the high seas. He said, apparently, well, the fact that they've been designated as foreign terrorist organizations is enough to target them, which is like, what on earth are you talking about? You cannot target people when there's no like immediate threat of violence. They're not carrying weapons, they're not firing on people. Nor is it an armed conflict. You would need it to fit into an armed conflict. And that's, I think they kind of recognize that in a certain sense to do these status based targeting. But it's not an, it's not an, it's not an armed conflict. And there's been one. Right. One piece of writing. I wondered if there would ever be anybody who would try to write something in justification of it. There's been one and there's just been an avalanche of other legal experts writing that this is not the war framework, does not apply legally, that one piece of writing, at best it would get a B minus if it was an exam paper that I was grading, probably a C. It's just, it's junk. It's junk. They do this little. There's a whole wind up where they say nothing, then they say something finally. And then they never put the two pieces together that you would need to actually get this into an armed conflict framework. So it just shows you how bunk it is. And one wonders if the career military Lawyers inside the governments and civil civil society, not civil society. Civil lawyers inside the government have been excluded from the process, which there's some suggestion that they have been because that's the only way I can even begin to understand how this could be legally signed off.

[A]

I mean, one thinks we'll close maybe with a couple of questions on this. One thinks of barriers to a president just exercising power, including lethal power, and as you say, not just against foreigners, necessarily willfully and illegally. One barrier would be all the layers we have in the government and the tradition we have DOJ, DoD elsewhere. And you discussed that some and. Well, I guess we'll see. Right. I think we will learn more on that. I've got to think as this goes ahead. This is strikes me that there's a lot of efforts to suppress dissent and, and, but I don't know that. I don't know. It does sound like there are people who are unhappy, as you said, in the attorney's offices. More of that. There's also, I guess the two others won't come to mind right away are the courts. I'd like you to say a word about. There are these recent decisions that seems like some district judges at least being a little more forthcoming and just not deferring to the president even if he invokes the magic words national security or commander in chief. And then Congress, which you mentioned in passing. Well, which is, you know, where there was testimony and to whom that letter was addressed, but which of course has otherwise been. Well, anyway, say a word about the courts and about Congress. If you think sort of structurally, what stops a president from doing things we. That he shouldn't be able to do. It's the executive branch internally to some degree, to a considerable degree sometimes. So and then I guess the courts in Congress. Right. And then. Yeah, the country as a whole.

[B]

Yeah. And so I think the courts are standing up in many respects, the lower courts. Supreme Court is, I think, to me still yet to be decided. I know many people think that they already kind of are very much on the side of the White House and very in various ways. But we are seeing remarkable actions by the district courts on these invocations of executive power. So just to give folks an understanding of that, the Judge Breyer in California has basically said, has not basically has held that the National Guard and Marines in LA are acting in violation of the Posse Comitatus act. And he stops that use of the Marines and the National Guards. That's one. Then we have Karen Immigrate, which she is a Trump appointed judge saying that it's a violation of the 10th Amendment to federalize the National Guard in Portland because it's also based on no factual predicate. And then we have the Fifth Circuit, which is more conservative than the U.S. supreme Court, more conservative than the Roberts course, the Fifth Circuit saying that the invocation of the Alien Enemies act against Trend is invalid in part because Trend is not an organized armed group, which is also it ties in with the Caribbean piece as well. Like you need an organized armed group to have an armed conflict with them. You need an enemy like that. And so that's the courts. But the one piece that I think is really significant is when we all think about litigation and where it is at, where it's going, it's very, very difficult to litigate the use of military force abroad. So the use of military force on the Caribbean, in the Caribbean, on the high seas, or if President Trump were to open up a real armed conflict with Venezuela, which I think is a pretty good likelihood, how do you litigate that? And Congress can't. Members of Congress don't really have standing to go to court. It would have to be like a chamber of Congress. And that's not going to happen. So that then goes to your question, Bill. What about Congress? I do think we are in a unique situation or a special situation in which if Congress does nothing, the president is supposed to withdraw the military operations in the on the high seas. And what I mean by that is we're in this special situation where the White House has indeed submitted a war Powers report to Congress for the military strikes against the alleged drug smugglers. And there's a 60 day clock. The 60 day clock expires in the first few days of November. If there is not affirmative congressional authorization of those military operations, the President of the United States is, under the War Powers act, supposed to withdraw the troops from those hostilities. And as Marty Lederman pointed out, the fact that this White House has said it is an armed conflict makes it almost impossible for them to say this is not hostilities in that sense. And they themselves have submitted a War Powers report. So the clock has started. It expires in November. It does seem like we'll have action on the Hill for efforts to get Congress to affirmatively terminate the authority or the ability for the president to be in these operations. But even if they didn't do that, they need to give him affirmative authority by the early November. I do think we'll then probably see the president claiming that that part of the War Powers act is unconstitutional or something like that, but that's where it'll happen next. But that's also an argument that I think people need to wrap their heads around in the sense that I think many of us Americans, regardless of party ideology, et cetera, think that you need congressional authorization to take the country to war. And the President is saying this is war, so he needs that affirmative authorization.

[A]

And if the president says, I just, you know, we've decided, we have an OLC opinion that all or some of the War Powers act is unconstitutional, which others have argued in the past, other executive branch, the presidents, and I'm ignoring it, I guess. Does that get to court or is it just become a fight between Congress and the President?

[B]

I mean, yeah, I think it's very hard to get it to court. I can think of. There's one way in which some of this would definitely get to court, which is if somebody is detained under this authority and then they get a habeas petition. It was even thought that in Trump's first term, one of the reasons it was some of the legal advisors told him or that administration told him not to bring any ISIS members to Guantanamo is because then there was the litigation risk that they could bring a habeas case and argue, which they had a pretty good argument that it was not authorized under The Congress Congressional 2001 Authorization for Use of force. So that's one of the ways in which there is an avenue in to some third party institution, the judiciary, making a determination as to whether or not this is lawful. But that's one. And there might be some other ones that we could potentially see on the horizon, especially if there's resistance inside the military to following manifestly unlawful orders.

[A]

There could be a case where someone's fired or disciplined or something, I suppose, and then claims it's in a lawful order. And I guess, well, that goes to the military justice stuff first, I guess. But I mean, I guess what you're. The judges have more obviously ability to intervene on the domestic side and they have been doing so, as you said, more than one might have expected at the district court level, at least now. And more, I'd say more, don't you think? More, I don't know, more vigorously or more emphatically maybe is the better word. Right. And looking beneath the hood of these justifications and saying this doesn't even pass the, the minimal test of deference to the. It has to be something that we're deferring to the President on some factual, credible, plausible, factual basis. And I guess Judge Immigrant in particular just says that it's not there, you know.

[B]

Yeah. And in some ways it also traces itself back to this famous opinion by Justice Jackson on the deference owed to the President. And it's exactly as you describe it. Yes, there is judicial deference of a much greater degree to owe to the President when it's military action abroad, but not when that military action is brought in for domestic use. And that's the sharp difference in the Jackson opinion that I think we are now facing that issue. And if these cases, and then, as you say, like if these cases about the Caribbean strikes one way or another find themselves in a court proceeding, I have every expectation that the judges will give even greater deference to the President on that. But we shall see. The other piece that I do think about quite a lot is we have precedents in the past that appear to close off certain avenues one way or another. But what's happening now is so unprecedented that you could imagine that the case law itself will rise up to meet the moment. There's reasons why there's been deference and all the like in the past, partly because the executive branch acted according to regular procedures on the basis of real intelligence and expertise. And this executive is actually, in a certain sense, explicitly saying that they're gutting those parts of the administration and they don't like the so called experts and the intelligence community. And these statements, these positions by the executive are so out of whack with both the facts, like the alleged facts in Portland and, and the law, the allegation that we're in an armed conflict that I think courts might not strictly bind themselves by the past presidents because we're really in a very different moment.

[A]

Yeah, that's very interesting. So final, I guess, final, final question. I mean, so you have the internal questions of what's happening in the executive branch, the questions about the courts, questions about Congress. I guess those are the three obvious. Three, maybe there are more, but three obvious, you know, areas where this comes to a head. When do you think we know more about who's doing, who's stepping off or who's not or both, where the administration's going and also what kind of resistance they're going to meet? I guess, is it just a week by week thing or are there some obvious moments where we'll say, oh, this is an inflection point?

[B]

It's a great question. I, I mean, I think there's one big one which is if the federal government decides to open up a war front in Venezuela. So at the same time as this fourth strike. There were apparently US Military jets that went into Venezuelan airspace and the Venezuelan government strongly protested that. And there's obviously a ramping up of at least rhetoric against Maduro. And so I think that might be a major inflection point. And the other is I think we should see some action at some point with the Armed Services Committee. I have to imagine they're very concerned. It sounds like the Senate side was very concerned based on the briefing that they got. So I do think that that might be a point at which it's just a point too far. And it often can be in the political self interest of members of Congress to push back on this because they do not necessarily want to be on the line for having grease the wheel or authorized wars. And the way I think of it is like this is a new forever war potentially. So I think there might be that and we'll see what happens. I mean, my eyes are also on the coming legislation that's being proposed in the Senate to terminate the military operations in the Caribbean, at least not that they should be terminated if there's no congressional authorization. And Senator Mike Lee, in the past, past decades, he has strongly stood up against that kind of exercise of authority, including under the Trump 1.0 administration, in favor of looking after the needs of the congressional authority. So, Mike Lee, Rand Paul, Senator Young, this has not historically been a partisan issue. It really has been bipartisan. That is an inflection point in terms of the direction that it goes to see where that happens.

[A]

And I suppose the cases have been out, the decisions by Judge Immergat and others, Judge Breyer do get to the Supreme Court one way or the other at some point and not that far away or I mean, I mean these.

[B]

Days not that far away because of the way that which the court is intervening very fast and an emergency docket style to like dip right down into the litigation and that the Solicitor General has been very fast at trying to bring those cases up, though with one caveat, which I think is an important one to understand what's happening between the court and these lower court cases is it is the Solicitor General who is deciding what to bring to the court on that emergency docket. So if he thinks something is a loser, he might not bring it, as happened in the past with birthright citizenship. But then he made a promise to the court that he would bring it. So that's partly why that one was brought.

[A]

So I guess we'll know more, it sounds like from all these different areas, we'll know a lot more in three months. Would you agree with that? What's it, October 5th now? Don't you think by the end of the year we'll have a much better sense of how this is all playing out within the executive branch and among the branches, do you think?

[B]

Yeah, absolutely. Absolutely. We're only at the beginning of that.

[A]

Isn't that amazing? Yeah. Which is both. I don't know is that good or bad? You know, it's bad how far we've gotten in nine months, it's astonishing. But yeah. Ryan, thanks so much for, for joining me today. It's very, very interesting and important and we'll all, we'll stay in touch on this, obviously, and we'll cover it at the Bulwark, you'll cover it at just Security and we'll, we'll have you back on in various modes. So thank you for taking the time today.

[B]

Thank you. Always appreciate the conversation with you and.

[A]

Thank you all for joining us on the Bulwark on Sunday.