Former Ethics Officials Demand DOJ Probe Into Classified OLC Memo That Cleared U.S. Strikes On Suspected Drug Boats

A bipartisan group of former federal ethics officials has asked the Justice Department to open an internal investigation into a classified legal opinion from the Office of Legal Counsel (OLC) that reportedly cleared U.S. military personnel of future prosecution for strikes on vessels suspected of drug trafficking off the coast of South America.

What the Former Officials Are Asking

The request, sent Tuesday to the Justice Department's Office of Professional Responsibility (OPR), asks for an "immediate investigation into whether members of the [Justice Department's] Office of Legal Counsel violated their professional legal responsibilities in preparing legal guidance that justified the unilateral use of lethal force against civilian foreign nationals, including alleged drug smugglers."

The group includes former ethics counsels Norm Eisen, Richard Painter and Virginia Canter, who served under Presidents George W. Bush, Barack Obama and Bill Clinton. They cited a Nov. 12 Washington Post report that said OLC authored a still-classified opinion finding that personnel participating in strikes on alleged drug-trafficking boats "would not be exposed to future prosecution."

Concerns and Legal Objections

In their letter, the former officials warned that the practical effect of the OLC opinion could amount to "free rein for the government to murder and assassinate foreign civilians," calling the finding "shocking" and raising profound legal ethics concerns. They also dispute the administration's premise that the U.S. is engaged in a "non-international armed conflict" with drug cartels.

"The U.S. is not in a non-international armed conflict. And even if we were, the murder of civilians would still be a violation of both international and domestic law," the trio wrote.

Legal scholars have publicly questioned the administration's legal theory, saying that drug cartels generally do not meet the criteria for organized armed groups under the law of armed conflict, and therefore the "non-international armed conflict" characterization is legally flawed.

Political and Legal Fallout

Lawmakers on Capitol Hill were scheduled to receive a briefing from senior administration officials about the strikes and their legal rationale. The U.S. military has carried out more than 20 strikes on suspected drug-smuggling vessels in the Caribbean and eastern Pacific since early September, actions officials say have killed more than 80 people.

Senators Peter Welch and Dick Durbin have asked the Justice Department to brief committee members and staff and to allow them to review any legal analysis produced by the department, saying the strikes raise "numerous questions about whether the Department provided adequate legal guidance to those involved in ordering, planning, and carrying out the killings."

Civil Litigation And DOJ Response

Separately, civil liberties groups including the ACLU, the Center for Constitutional Rights and the New York Civil Liberties Union filed a federal lawsuit in New York seeking public release of the classified OLC memo and related records under the Freedom of Information Act. They say the government has refused to release requested documents.

A Justice Department spokesperson defended the strikes, saying they "were ordered consistent with the law of armed conflict, and as such are lawful orders." The spokesperson added: "Military personnel are legally obligated to follow lawful orders and, as such, are not subject to prosecution for following lawful orders."

Context

Supporters of the campaign say the strikes target drug trafficking that fuels tens of thousands of U.S. overdose deaths each year, while critics say the legal basis and ethical implications of authorizing lethal force against civilian foreign nationals must be independently reviewed.