The Secret Law: The 40-Page Memo That Made a War Legal
A secret Justice Department memo declares the US is in armed conflict with a secret list of drug cartels — making 200+ boat-strike killings lawful wartime targeting and immunizing the shooters from prosecution. The government won't let anyone read it. A federal judge heard the argument for prying it loose in June.
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Listen free: The Secret Law: The 40-Page Memo That Made a War Legal
Somewhere in the Department of Justice there is a document, a little over forty pages long, that claims the United States is at war. Not metaphorically at war, not at war in the campaign-speech sense of a war on drugs or a war on poverty, but legally, formally, in an armed conflict — a state of war, in the technical meaning of international law, with a list of drug cartels whose names are secret. The document is a memorandum from the Office of Legal Counsel, the small elite office inside the Justice Department whose opinions bind the executive branch, and what those forty pages do, by the account of the officials who have described them, is three things of a kind the American legal system has never quite seen together. They declare that the United States is in a formal armed conflict with the cartels on the secret list. They declare that the boats those cartels run in the Caribbean and the eastern Pacific are therefore lawful wartime targets, and that the American military may kill the people aboard them without trial, charge, or warning — which it has now done, more than two hundred times. And they purport, according to the lawsuit now fighting to pry them loose, to immunize the people who did the killing from any future prosecution for it. The strikes are not covert; the administration announces them, sometimes with video. The legal theory that makes them lawful is the part you are not allowed to read. This is the story of the secret law — the memo that claims to make a war legal, the judge who heard the argument for revealing it this June, and the two hundred dead whose killings it exists to justify.
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First, the campaign the memo was written to protect, because the facts on the water are the easy part of this story. Beginning in September of twenty twenty-five, the United States military began conducting lethal strikes against small boats in the Caribbean Sea and the eastern Pacific Ocean — speedboats, fishing vessels, the open skiffs the Caribbean calls go-fast boats — which the administration said were running drugs for cartels it had designated as terrorist organizations. The strikes were not seizures or arrests; they were killings, carried out by air, and the administration did not hide them — it released footage, counted the dead as victories, and named the campaign. The legal questions began with the first explosion and have never stopped: under what authority does the military kill civilians — even criminals, even smugglers — on the open sea, without arrest, without trial, without any of the process the Constitution requires before the government takes a life? The Coast Guard has interdicted drug boats for a century under law-enforcement authority, with boarding parties and arrests and evidence for courts. These strikes were something else, and everyone involved understood that something else required a legal theory that had not previously existed. That theory is what the forty pages contain.
The memorandum's architecture, as reconstructed from the officials and reporting that have described it — because the document itself remains classified and unreleased — is built in three moves, and each move is a door into territory American law has avoided entering for two hundred years. The first move is the designation: the administration named certain drug cartels as foreign terrorist organizations, and then asserted, in the memo's central and most contested claim, that the United States is thereby in a non-international armed conflict with them — the legal category of war that governs civil wars and insurgencies, now asserted to cover organized crime. The second move follows from the first: if the cartels are wartime enemies, then their boats are legitimate military targets, and the people aboard them are combatants — or, in the memo's reported refinement, targetable members of an armed group — who may be killed on sight, the way an enemy soldier may be killed on a battlefield, without the process any civilian would be owed. And the third move is the one that transforms the memo from an argument into a shield: the opinion reportedly purports to prospectively immunize the personnel carrying out the strikes from future prosecution — a legal promise, written in advance, that the killings the memo authorizes will never be treated as crimes, no matter what a future administration or court concludes about the theory behind them. War is declared, the targets are legal, and the shooters are untouchable. Forty pages, three moves, two hundred dead.
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The counterattack came, as it usually comes in the American system, not from a legislature but from a lawsuit — and it has reached its moment of decision this year. In October of twenty twenty-five, the American Civil Liberties Union, the Center for Constitutional Rights, and the New York Civil Liberties Union filed a Freedom of Information Act lawsuit demanding the memo and the documents around it: the opinion itself, the cartel list, and the guidance implementing it. The government refused, on the grounds that the documents are classified and deliberative, and the case ground through the federal courts on the standard schedule — until, in May of twenty twenty-six, the summary-judgment briefing closed, and on June twenty-fourth, twenty twenty-six, a federal judge in the Southern District of New York heard oral argument on whether the memo must be released. The question presented to the court is as stark as the memo itself: can the executive branch fight a lethal military campaign, kill hundreds of people in it, invoke a secret legal opinion as the campaign's entire legal basis — and refuse to let the public, or even a judge in open court, read the law it says makes the killing legal? The judge's ruling is pending as this article is written, and whichever way it falls, it will be appealed by the loser to a higher court, because the stakes are not one memo but the principle underneath it.
The strongest case for the administration's theory — stated at full strength, because the lawyers who wrote it are serious people making a serious argument, not cartoon villains — begins with the observation that the legal architecture is assembled from real pieces, each with precedent behind it, even if the assembly is novel. The armed-conflict designation has a logic the government has used before: the post-September-eleventh authorization for military force was read by four administrations to justify strikes against non-state armed groups worldwide, and the cartels, in the memo's framing, are non-state armed groups with armies, territories, and firepower that in several regions exceed the states that nominally govern them. The strikes' defenders point to the fentanyl death toll in the United States — a casualty count that dwarfs most wars — and argue that treating the organizations producing it as mere criminals, entitled to arrests and trials their own home states are too corrupted to provide, is a legalism that serves the guilty at the price of the dead. The interdict-and-arrest model, they note, had fifty years to work and presided over the transformation of the cartels into what they are now. And the secrecy itself has a defensible logic: legal opinions are deliberative documents, routinely withheld, and the government argues that releasing the memo would expose intelligence sources, reveal the cartel list to the cartels, and chill the candid legal advice every administration depends on.
And the strongest case against — stated with the precision the two hundred dead require — is that the memo's three moves are each, separately, the kind of legal claim the system exists to reject, and together they are a doctrine of unaccountable killing. The armed-conflict claim is the foundation, and it is the weakest: an armed conflict, in the law that actually governs the term, requires an organized armed group engaged in sustained hostilities of a certain intensity against the state — a definition written for insurgencies and civil wars — and treating criminal enterprises, however violent, as wartime enemies collapses the line between war and crime that distinguishes a republic — where law rules the governors — from a junta, where the governors rule by force alone; if drug-dealing is war, then every prosecutor's docket is a battlefield and every police shooting is a military action. The targeting claim inherits the foundation's weakness and adds its own: even in a real war, the people killed must be targetable members of the armed group, and the public record contains no evidence that the two hundred dead were proven to be combatants rather than fishermen, migrants, or the coerced — the administration has never identified them, charged them, or shown the intelligence behind each strike to anyone outside the executive branch. And the immunity claim is the one that should chill even the memo's sympathizers: a legal opinion purporting to immunize officials from future prosecution is not an interpretation of law but an attempted veto on the future — a promise by the current executive that the law will never catch up with what it has ordered, which is precisely the promise the Nuremberg-era doctrine of superior orders was invented to refuse. The case against the memo, in the end, is not that its lawyers were careless. It is that they were careful — and used all that care to build a legal machine for killing people outside the law's sight.
Three developments would disprove or confirm the secret law's fate, and each is now in motion. First, the court's ruling: the Southern District judge's decision on the FOIA suit will either order the memo released — putting the forty pages, the cartel list, and the legal theory into public view for the first time — or bless the secrecy, and either outcome is headed for the appeals courts, where the fight over secret law will be joined at the level that sets precedent. Second, the list: if the names of the designated cartels ever emerge — through the lawsuit, a leak, or a congressional demand — the armed-conflict theory will finally be testable against the actual organizations it names, and the public will learn whether the secret enemy was chosen by evidence or convenience. Third, the count: the strike campaign continues as the litigation proceeds, and the casualty figure — over two hundred as this article is written — will keep rising; the first strike to kill someone the government is forced to admit was not a cartel combatant will transform the legal argument into a political one, with consequences the memo's immunity clause was written, precisely, to prevent.
It is worth saying what this article has not claimed. It has not claimed the strikes are murders; the legal question is genuinely contested, and the administration's argument is presented here at full strength. It has not claimed the memo says anything beyond what officials and the lawsuit have described; the document is secret, and the article has been careful to attribute every characterization of it. It has not claimed the cartels are anything other than violent criminal organizations; the horror of the fentanyl trade is real, and the article says so. And it has not claimed the courts will order the memo released; the ruling is pending, and both outcomes are described. The claim here is narrower and harder to escape: the United States is killing people in a military campaign justified by a legal theory it will not show anyone, and whether that theory is law or not is a question the republic is currently answering in the worst possible way — by counting the dead first and reading the law later, if at all.
Which returns to the forty pages, sitting in their classified drawer, doing the work they were written to do. Every legal system keeps secrets. The question every legal system must eventually answer is whether a secret can be a law — whether the government may kill by a rule it refuses to publish, on a list it refuses to disclose, with an immunity it grants itself in advance. That is not a question about cartels, or drugs, or even this administration. It is the oldest question there is about power: whether the law binds the people who enforce it, or merely the people it is enforced against. The two hundred are dead either way. What the judge decides about the memo will tell us which kind of republic buried them.
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