The White House argued lethal military strikes against alleged drug-trafficking boats in the Caribbean and Eastern Pacific do not rise to the level of “hostilities” that would warrant authorization from Congress under the War Powers Resolution (WPR).
The administration said the WPR, which Congress passed in 1973, would only apply when putting the U.S. in harm’s way and that the strikes on alleged drug-smuggling boats, which so far have killed at least 64 people, are not endangering military personnel since they are “largely” conducted by unmanned aerial vehicles that take off from Navy vessels.
“Here, the operation comprises precise strikes conducted largely by unmanned aerial vehicles launched from naval vessels in international waters at distances too far away for the crews of the targeted vessels to endanger American personnel,” a senior administration official, speaking on condition of anonymity, told The Hill on Monday.
Monday marked the 60-day deadline since the White House first notified Congress of its initial strike against an alleged drug-trafficking vessel. The WPR says the president needs to discontinue military operations after 60 days if an authorization from Congress is not obtained or the commander-in-chief can request a 30-day extension.
The administration official said the escalating strikes do not meet the threshold of “hostilities” and that the Trump administration’s Office of Legal Counsel’s (OLC) position on the matter is “consistent with its traditional approach,” pointing to legal opinions authored by assistant attorneys general during the Clinton and Reagan presidencies.
In a 1996 opinion, Walter Dellinger, the assistant attorney general in the OLC, did not discuss the 60-day limit when addressing former President Clinton’s deployment of peacekeeping forces to Haiti, but added the decision would “not involve the risk of major or prolonged hostilities or serious casualties to either the United States or Haiti.”
“The Executive Branch has taken the position from the very beginning” that the WPR “does not constitute a legally binding definition of Presidential authority to deploy our armed forces,” former Assistant Attorney General Theodore Olson wrote in the 1984 legal opinion, referenced by the White House.
Other administrations have made similar arguments. In 2011, the Obama administration said the WPR was not applicable since there were no U.S. troops on the ground and continued fighting with opposing forces during the air campaign against Libya.
The strikes targeting alleged drug-smuggling boats have continued, with Defense Secretary Pete Hegseth announcing late Saturday that the U.S. military took out a “narco-trafficking” vessel operated by a designated terrorist organization in the Caribbean, killing three.
“On the campaign trail, President Trump promised to take on the cartels — and he has taken unprecedented action to stop the scourge of narcoterrorism that has resulted in the needless deaths of innocent Americans,” the administration official said Monday.
Lawmakers on both sides of the aisle have asked the administration for more information about the legal rationale the White House is relying on for the strikes.
Democrats on the House Armed Services Committee were not satisfied with last week’s briefing on the boat strikes, expressing frustration with the answers they have gotten on the legality of the operations and the White House’s “end game.”
The administration official pushed back, saying by “regularly notifying and briefing the House and the Senate on this important matter, the Administration continues to demonstrate great transparency in its communications” with Congress.
Sens. Roger Wicker (R-Miss.), the chair of the Senate Armed Services Committee, and Sen. Jack Reed (D-R.I.), the top Democrat on the panel, published letters on Friday, where they demanded the Pentagon’s copies of the orders issued to strike boats, the legal opinion for the military action and a complete list “of all designated terrorist organizations and drug trafficking organizations with whom the President has determined the United States is in a non-international armed conflict and against whom lethal military force may be used.”
Reed told reporters Monday the Defense Department gave the pair “assurances that they’ll make the information available” to lawmakers.
“I hope that’s a first step, not a final step, so that all of my members can understand what their arguments are, what their plan was,” the Rhode Island senator said.
A bipartisan resolution, which is being led by Sens. Tim Kaine (D-Va.), Adam Schiff (D-Calif.) and Rand Paul (R-Ky.), which would halt the strikes, could come for a vote as soon as Wednesday, but discussions are ongoing, Schiff’s spokesperson told The Hill on Monday.
Kaine told reporters on Monday he would like to put the measure up for a vote this week, but it will depend on the upper chamber’s schedule.
“It could be this week, we’ll see tomorrow what the schedule is likely to be, including on the budget issues and stuff like that. And there could be some lean time or gap time, where we would put that in,” Kaine said.
