Federal Lawsuit Demands Disclosure of Secret OLC Memo on Boat Strikes

In July 2022 the DOJ’s Office of Legal Counsel issued an opinion that U.S. boat strikes were lawful actions in an alleged “armed conflict” with drug cartels. The ACLU, NYCLU and Center for Constitutional Rights sued in the Southern District of New York to compel release of the memo, arguing that President Trump’s executive order designating cartels as foreign terrorist organizations and a secret directive to use military force lack legal justification.

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The case is led by ACLU staff attorney Jeffrey Stein, NYCLU attorney Ify Chikezie, and CCR director Baher Azmy. DOJ attorneys defend the memo, and U.S. District Judge Paul Engelmayer oversees the proceedings. U.S. Southern Command (SOUTHCOM) has reported the strikes.

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SOUTHCOM reports 66 strikes since September 2021. The Intercept’s tracker attributes 215 deaths and about a dozen survivors, with plaintiffs noting “over 210 civilians” killed, many of whom were fishermen.

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The DOJ seeks summary judgment, claiming the memo’s classified status protects intelligence sources and that executive privilege bars disclosure. Judge Engelmayer asked whether any presidential communications privilege can be waived. The plaintiffs contend the administration is hiding the legal basis for what they describe as cold-blooded murder of civilians and demand FOIA transparency.

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CCR argues the United States cannot be in an armed conflict with Latin American drug cartels because they do not meet the international-law definition of an “organized armed group.” It also says the OLC memo seeks to immunize strike personnel and calls the rationale “phony wartime rhetoric of a basic autocrat.”

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The DOJ says the memo’s classification is essential to protect intelligence, while plaintiffs argue its analysis violates international law and should be public. The government has offered no evidence that the targeted vessels were engaged in narco-trafficking; relatives and officials in Venezuela and Colombia say many victims were civilian fishers, leaving a factual gap.

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• “People across the country, politicians across the aisle, and the families of victims have been demanding answers as to how our government is justifying the cold-blooded murder of civilians,” — Jeffrey Stein, ACLU National Security Project staff attorney

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• “As CCR said Wednesday: Contrary to the government’s public assertions, the US is not, and could not be, in an armed conflict with Latin American drug cartels.” — Baher Azmy, CCR

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• “the public deserves to know how the Trump administration is rubber-stamping the killing of civilians.” — Ify Chikezie, NYCLU

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• “Is it the government’s position that any presidential communications privilege cannot be waived?” — Judge Paul Engelmayer

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The court will rule on the memo’s disclosure. Relatives of two Trinidadian fishers have also filed a wrongful-death suit in Massachusetts, urging immediate transparency to ensure accountability.

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