A policy that incentivizes murder is morally obscene. As obvious as this may be, that is nonetheless where we are. The Trump administration has taken to blowing up boatloads of presumptively innocent people on the open seas. So far, seven attacks have been publicly reported. In the most recent attack, two people survived. The administration took them into military custody but quickly repatriated them to Ecuador and Colombia, respectively, though the administration had to know that both would be promptly released.

The administration would’ve rather detained the survivors. But the administration can’t do what it wants and won’t do what it can, so it released them as the least bad option—an option that forced itself on the administration only because the two survived. Based on my very long experience defending foreign nationals detained by the U.S. military, I suspect very strongly that this is how it all came to pass.

Whenever state or federal officials in this country take someone into custody, they have two choices: they can continue to hold them, or they can let them go. Let’s assume the administration’s first impulse with these two survivors was not to release them, but to detain them. Then what?

At least for now, detention by state or federal authorities requires an adequate process backed by legal authority. Though it is not true in totalitarian states, in this country, the government cannot deprive a person of their liberty without legal authority. This has been a bedrock principle of the rule of law since long before the nation’s founding.

To be valid, this process must—at a minimum—provide the detained person with the opportunity to contest the legal and factual basis of their imprisonment. They must be able to show, in other words, that the government has no legal authority to act against them (no legal basis for the detention), and that even if it had the authority, that the person detained is not within the class of people against whom the government may act (no factual basis for the detention).

The administration claims the United States is at war with drug cartels and that the attacks on the boats are military actions. As many have observed, this is legal drivel; the government can certainly prosecute people caught smuggling drugs on the open seas, but it cannot simply line them up against a wall and shoot them, which is effectively what they have done, seven times. But so long as these illegal strikes kill everyone aboard, no one has been able to challenge them in court. All that changed, however, when two people survived. The Trump administration no doubt asked itself whether it could hold the survivors in military custody, as though they were combatants. And when they were first rescued, that’s exactly what happened: they were held in military custody and labeled “enemy combatants,” like the prisoners at Guantanamo.

But any plan to hold these two in military custody was complicated by Rasul v. Bush (2004). After 9/11, the Bush administration tried to hold prisoners in military custody and without legal process at the U.S. Naval Station at Guantanamo. In Rasul, the Supreme Court refused to allow it. The Court held that prisoners at Guantanamo have the right to challenge the legal and factual basis of their detention in federal court in Washington, D.C. So, even if these two survivors had been flown to Guantanamo and detained at the military prison, they still would have been entitled to challenge the legal and factual basis for their detention in Washington, where many lawyers—myself included—were fully prepared to represent them.

And the administration must know that it would have lost that litigation, just as it lost Rasul. No court will uphold the ridiculous claim that we are at war with drug cartels, and that this undeclared and unauthorized “war” somehow vests the President with the legal authority to kill presumptively innocent people or imprison them without legal process. In the absence of legal authority, the