Can Trump really go after the ‘bad hombres’ in Mexico?

1. Marc A. Thiessen 

Both sides deny it, but the Associated Press reports that President Trump warned Mexican President Enrique Peña Nieto in their phone call that if Mexico did not do something about the “bad hombres down there,” Trump might just send American forces to Mexico to “take care of it.”
Team Trump says his comments were “lighthearted” and not meant as a threat. Peña Nieto’s spokesman says, “It is absolutely false that the president of the United States threatened to send troops to Mexico.” CNN reports that Trump actually offered to help, saying, “You have some pretty tough hombres in Mexico that you may need help with. We are willing to help with that big-league, but they have to be knocked out and you have not done a good job knocking them out.”

A general view shows part of the Loma Blanca neighbourhood as a section of the border fence marking the boundarie with El Paso, US is seen on the background, in Ciudad Juarez, Mexico January 18, 2017. Picture taken January 18, 2017. REUTERS/Tomas Bravo.

 

Who’s right? Who the heck knows. But the kerfuffle raises a larger question: Does an American president actually have the legal authority to send Americans into Mexico (or any other country for that matter) to take care of “bad hombres” without that country’s approval?
According to the US Department of Justice, the answer, depending on the circumstances, is … yes.
On June 21, 1989, then-head of the Justice Department’s Office of Legal Counsel and future US Attorney General, William Barr, issued a memorandum entitled “Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities.” The memorandum declares that:

At the direction of the President or the Attorney General, the FBI may use its statutory authority to investigate and arrest individuals for violating United States law, even if the FBI’s actions contravene customary international law. The President, acting through the Attorney General, has the inherent constitutional authority to deploy the FBI to investigate and arrest individuals for violating United States law, even if those actions contravene customary international law. Extraterritorial law enforcement activities that are authorized by domestic law are not barred even if they contravene unexecuted treaties or treaty provisions, such as Article 2(4) of the United Nations Charter. An arrest that is inconsistent with international or foreign law does not violate the Fourth Amendment.

In other words, we do not need permission from the government where fugitives from US justice are hiding in order to apprehend them. Those who violate US law can be seized anywhere in the world – with or without the permission of the government where they are located.
I wrote about this back in 2010, arguing that the Obama administration had the authority to arrest WikiLeaks founder Julian Assange anywhere in the world, pointing out:

Assange seems to believe, incorrectly, that he is immune to arrest so long as he stays outside the United States. He leads a nomadic existence, operating in countries such as Sweden, Belgium and Iceland, where he believes he enjoys the protection of ‘beneficial laws.’ (He recently worked with the Icelandic parliament to pass legislation effectively making the country a haven for WikiLeaks). The United States should make clear that it will not tolerate any country — and particularly NATO allies such as Belgium and Iceland — providing safe haven for criminals who put the lives of NATO forces at risk. With appropriate diplomatic pressure, these governments may cooperate in bringing Assange to justice. But if they refuse, the United States can arrest Assange on their territory without their knowledge or approval.

What applies to Assange could equally apply to a Mexican drug lord.
Importantly, the 1989 OLC memorandum authorizing extraterritorial law enforcement action continues (emphasis added):

We caution that this memorandum addresses only whether the FBI has the legal authority to carry out law enforcement operations that contravene international law. It does not address the serious policy considerations that may weigh against carrying out such operations.

In other words, the country to which we deploy agents without their permission may not like it very much, and that could have broader consequences. So as a matter of law, capturing “bad hombres” in Mexico without Mexico’s permission – if they are wanted for violations of US law – is perfectly legal. But as a matter of policy, it could be unwise.
Let’s hope that the reports that Trump made an offer to help Peña Nieto with the drug cartels, rather than do it for him, are accurate – and that Mexico accepts his help.