Is the United States now a rogue state?
There are certainly plenty of reasons to believe so—and plenty of people willing to say so. The exhibits of this Trump administration’s disdain for lawfulness, both domestically and internationally, are legion.
The attacks on alleged drug-smuggling boats in the Caribbean and eastern Pacific Ocean as well as the designation of Venezuela’s leader as the head of a drug cartel—and thus a “terrorist” and a legal target under legal authorities designed to deal with the Sept. 11, 2001, attacks—are just the most glaring examples. There are also the threats of military action against Mexico, Nigeria, perhaps Panama, and potentially even Greenland.
There are the questionable tariffs levied on the whole world, an expansion of executive power never contemplated before and currently under Supreme Court review. And there are other tariffs, abusing narrow national security exceptions, that also breach international trade norms. Even seemingly innocent things, such as international maritime shipping standards, are cause for contempt and personal intimidation of foreign diplomats.
There are also the domestic measures, from a rampaging Immigration and Customs Enforcement and U.S. Border Patrol, to U.S. national guard troops being sent to U.S. cities for no reason, to the politicization of the justice system to prosecute Trump’s political opponents. There is a formal end to enforcement of anti-corruption statutes, such as the Foreign Corrupt Practices Act, and the informal embrace of apparent corruption, from alleged bagfuls of cash to cryptocurrency schemes to gifted 747s.
People deeply versed in statecraft and law—and who served Democratic and Republican administrations in the past—are as much at a loss for adjectives as they are for optimism. They worry that if the United States turns into what is essentially a rogue state, the rest of the world would take note—and not in a good way.
“Trump has no commitment to the rule of law. [Former U.S. President Richard] Nixon, by comparison, seemed at least aware of legal constraints; Trump believes he is the law,” said Harold Koh, the State Department’s legal advisor during the first Obama administration and now a professor at Yale Law School.
“Certainly, now the leaders of the Trump administration seem to be signaling both internally and externally that they don’t care about complying with international law, or domestic law for that matter, and that is a big difference from prior administrations,” said John Bellinger III, the legal advisor for State Department and the National Security Council during the George W. Bush administration. He now works as an adjunct senior fellow at the Council on Foreign Relations.
While a country’s respect for black-and-white domestic law and disregard for the often fuzzier international variety of it may seem to be two distinct issues, in the Trump administration, they seem to be part of the same broad phenomenon—one that had been glimpsed and hinted at in years past but never with such clarity as today.
“It’s bad when the U.S. appears to be disdainful of international law,” Bellinger said. “The rest of the world has traditionally looked to the U.S. for legal leadership, and now they are proceeding without us. This is a total change.”
Episodes such as masked immigration agents grabbing people off the street and holding even U.S. citizens in custody, or U.S. troops occupying peaceful American cities are, critics say, an outgrowth of years and decades of similar behavior overseas.
“There is definitely this relationship to domestic lawlessness—it’s the imperial boomerang, and it’s coming back home,” said Matt Duss, the executive vice president of the Center for International Policy and a former foreign-policy advisor to Sen. Bernie Sanders.
These actions have prompted plenty of overt criticism, not just from eminent lawyers and scholars but also from politicians and judges, too.
California Gov. Gavin Newsom declared outright on X that “America isn’t operating under the rule of law, anymore.”
Mark Wolf, a federal judge appointed by former President Ronald Reagan, quit after 40 years on the bench. “The White House’s assault on the rule of law is so deeply disturbing to me that I feel compelled to speak out,” he wrote.
The ongoing U.S. military campaign to destroy alleged “narco-vessels” in the Caribbean and eastern Pacific—and the legal contortions and disregard for world opinion that have accompanied them—are, of course, Exhibit A. It is an unprecedented and cavalier approach to long-enshrined U.S. and international laws that put clear restraints and restrictions on matters such as extrajudicial killing.
The Trump administration’s efforts to find a legal justification for sidestepping U.S. laws in particular have given rise to an ocean of worried legal commentary by practitioners noting that even previous U.S. administrations that were accused of having scorn for restrictions on the use of lethal force seldom—if ever—went as far as Trump has in pushing legal boundaries.
Those legal justifications go so far as to include a Justice Department memo that grants U.S. service members involved in the boat strikes immunity from prosecution, which seems unnecessary if the strikes were perfectly legal in the first place. Lawmakers who suggested that troops should refuse to follow unlawful orders, as they are in fact obliged to refuse to do under established U.S. military doctrine and international legal precedent, are themselves “traitors,” Trump said on social media.
Declaring profit-interested cocaine dealers “terrorists,” and thus open to willful assassination, also seems self-defeating. It does appear that way so far, with the United Kingdom and Colombia limiting their intelligence-sharing with the United States over the matter.
Issues such as how to deal with actual terrorists abroad were something that came up in many previous administrations, especially during those of former Presidents George W. Bush and Barack Obama.
“The British government certainly expressed some concerns about U.S. counterterrorism policies in the Bush years, but this is a big step, when our closest ally appears to have concluded that the U.S. may be violating the international law prohibition on targeting civilians,” Bellinger said.
The Obama administration, too, wrestled with the question of the legality of a more aggressive approach to terrorists, and it offered what it said were carefully considered justifications.
“We laid out legal standards. There is a difference between legal force and those that are exercised without law. There is a difference between lawful defense and murdering people,” said Koh, who was the State Department’s legal advisor during the thorniest part of the drone debate.
Clearly, over the decades and even centuries, the United States has played fast and loose with law—especially international law—though that was less well-developed in the 19th century than in recent decades. The Mexican-American War, the Spanish-American War, multiple interventions in Latin America, internments, the first use of nuclear weapons, and numerous invasions and coups since then have all been controversial at the time and since.
Especially after Sept. 11, 2001, the tug-of-war between those advocating more power for the executive to confront threats and those arguing for restraint has intensified.
“The groundwork was laid before, but especially post-9/11” the unchecked, go-it-alone approach has gained ground, Duss said, comparing recent U.S. foreign policy to the ancient Melian dialogues, which dictate that “the strong do what they can, and the weak suffer what they must.”
But the Trump administration has expanded its rejection of the rule of law to novel arenas, such as trade policy. Earlier this month, the U.S. Supreme Court heard arguments over the legality of the administration’s broad tariffs. Both sets of tariffs under review rely on a self-declared “national emergency” that the administration says gives it the power to do anything to anyone, anywhere, at any time for any amount of time.
Critics—and even some Supreme Court justices—suspect that the administration is usurping congressional authority and imperiling the constitutional separation of powers.
“This is about whether courts will condone a power grab based on a lie. This is the acid test,” Koh said. If those tariffs are held to be legal under the president’s ability to call anything an emergency, then “the president will return to a king-like status,” he said.
But that is the logical outgrowth of decades of legalistic efforts to empower the president to adequately confront national security threats, a trend that may have started during the U.S. Civil War but has crescendoed since World War II and especially the war on terror.
“Lawyers helped make the problem,” Koh said. “The best protection we have against external threats is presidential power, and nobody fully appreciated that we might have a president who is himself the greatest national security threat. This is a Frankenstein’s monster.”
The problem is less about any single state going rogue, but more about which state it is. For decades, the United States was a driving force in the creation and the maintenance of international law and the rules and norms that underpinned the much-maligned liberal international order. Is the United States passing the torch, or snuffing it out?
“I do think the U.S. is starting to withdraw from the position that it played for much of the 20th century, as did the U.K. for much of the 19th, in enforcing international rules,” said John Yoo, who worked in the Office of Legal Counsel during the George W. Bush administration and is now at the University of California, Berkeley School of Law. Such enforcement “is costly, but it brings great benefits to everyone in the world,” Yoo added. “I think the American people are exhausted from it.”
Some of the consequences are clear and immediate, such as the limitations on British intelligence-sharing, which are part of a broader breakdown of the “Five Eyes” intelligence-sharing pact between Washington and its closest allies.
Bellinger had already flagged exactly those risks in a lecture just weeks after Trump’s first electoral win.
“If the United States violates or skirts international law regarding use of force, it encourages other countries, like Russia or China, to do the same, and it makes it more difficult for the United States to criticize them when they do,” he said in the 2016 Cutler lecture. “And if the United States ignores international law, it also makes our friends and allies who respect international law, such as the UK, Canada, Australia, and EU countries, less likely to work with us.”
But if the U.S.-led commitment to upholding international rules is deliberately thrown aside, what country will step into the breach? There are still genuine rogue states out there, including states with nuclear programs that are in violation of international nonproliferation agreements and states that carry out assassination attempts on foreign soil.
“The problem is, who will replace the U.S. as the guarantor of international rules? You could see a world where China is the major world power, which I hope does not happen, or you could see a world where we break up into different regions, but we won’t enforce the rules anymore,” Yoo said.
“In a way, it’s almost as if the Trump administration were accelerating what was going to happen, but with no game plan at all,” he said.