Justice Department faces call for internal probe into legal opinion on Venezuelan boat strikes

Washington — A bipartisan group of former federal ethics officials is asking for an internal Justice Department investigation into the legal opinion justifying U.S. military strikes on suspected drug-running boats in the waters off South America.

The ex-officials sent a request Tuesday to the Justice Department’s Office of Professional Responsibility calling 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 Norm Eisen, Richard Painter and Virginia Canter, who served as ethics counsels for Presidents George W. Bush, Barack Obama and Bill Clinton. Their letter cited a Nov. 12 report in the Washington Post, which said the Justice Department’s Office of Legal Counsel authored a still-classified opinion finding that “personnel taking part in military strikes on alleged drug-trafficking boats in Latin America would not be exposed to future prosecution.”

The group’s request for a formal inquiry said: “The result of the Justice Department’s Office of Legal Counsel’s opinion — free rein for the government to murder and assassinate foreign civilians — is shocking and certainly raises the most profound legal ethics concerns.”

Congressional leaders and top lawmakers on the House and Senate Intelligence Committees are expected to receive a briefing from top administration officials on the military strikes and their legal rationale on Tuesday. The military has carried out more than 20 strikes on alleged drug boats in the Caribbean and eastern Pacific since the beginning of September, killing more than 80 people.

The Trump administration has consistently defended the military strikes as necessary and lawful, telling Congress in September that the U.S. is in a “non-international armed conflict” with drug cartels it has designated as terrorist organizations. The drugs smuggled by these cartels kill tens of thousands of Americans each year and constitute an “armed attack” against U.S. citizens, according to the White House.

“We have legal authority. We’re allowed to do that,” President Trump told reporters on Oct. 22. “They killed 300,000 people last year. Drugs, these drugs coming in. They killed 300,000 Americans last year, and that gives you legal authority.”

Legal experts have cast doubt on the administration’s argument, telling CBS News previously that the claim of a “non-international armed conflict” is flawed because drug cartels are not considered organized armed groups under the law of armed conflict.

In their request for a formal Justice Department internal review, the group of former ethics officials also questioned the administration’s determination that the U.S. is in armed conflict with the suspected 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,” Eisen, Painter and Canter wrote. “These flaws call into question whether the Justice Department’s Office of Legal Counsel’s opinion was prepared independently, objectively and competently.”

Eisen, who is the executive chair of Democracy Defenders Fund, told CBS News that “experts have been unequivocal: the legal and factual predicates for these strikes do not withstand basic scrutiny.”

“If the administration’s foundational premise is wrong, then the use of lethal force has no basis in domestic or international law — and the OLC memo transgresses ethics boundaries. OPR must investigate,” he added.

Painter told CBS News that “the role of OLC is to provide unvarnished legal advice to the president to ensure that the laws are ‘faithfully executed’ as is required by the Constitution. Unfortunately, all signs point to OLC’s opinion being nothing but a legal fig leaf to justify the president’s attacks on foreign civilians.”

The Justice Department did not immediately respond to requests for comment from CBS News.

Democrats on the Senate Judiciary Committee have also sought information from the Justice Department about its legal opinions on the military strikes.

In a letter to the agency shared with CBS News, Sen. Peter Welch and Sen. Dick Durbin wrote: “These recent strikes raise numerous questions about whether the Department provided adequate legal guidance to those involved in ordering, planning, and carrying out the killings. In accordance with the Committee’s constitutional oversight responsibilities, we ask that Committee members and staff be briefed on and afforded the opportunity to review any legal analysis produced by your Department.”

Eisen, Painter and Canter are seeking a review by the Justice Department’s Office of Professional Responsibility, which serves as a version of an internal affairs office for the department. The office’s public mission statement said it works “to ensure that Department attorneys perform their duties in accordance with the highest professional standards, as would be expected of the nation’s principal law enforcement agency.”