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As the Trump administration blows past a key congressional deadline, a top lawyer in the Department of Justice has claimed that the executive branch does not need the approval of Congress to continue conducting boat strikes in and around the Caribbean — an assertion outside experts say is patently false.
Last week, Office of Legal Counsel T. Elliot Gaiser told a small group of members of Congress that the administration does not have to follow the 1973 War Powers Resolution and its mandate that Congress must approve of armed conflict conducted by the U.S.
The briefing was made just before the end of the 60-day deadline established by the legislation. The legislation requires the president to acquire approval for sustained military action within 60 days of an initial notification of actions. This deadline passed on Monday. Gaiser said that the administration is not going to seek approval or an extension of the deadline.
In an email to The Washington Post, a senior official said that strikes do not rise to the level of “hostilities,” as defined under the law.
The administration’s reasoning, it seems, is that “even at its broadest … [it] has been understood to apply to placing U.S. service-members in harm’s way,” and that the current engagement does not do so — even as the administration claims that the current operation is conducted in self-defense.
“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,” the email said.
Experts say this reasoning is patently wrong. Brian Finucane, senior advisor for the International Crisis Group’s U.S. program, pointed out that Congress has previously noted that the resolution purposefully used a broader term — “hostilities” — rather than a narrower term — “armed conflict.” This was so that it could encompass not just attacks, but also a “clear and present danger of armed conflict.”
Further, last month, Trump explicitly said that the administration was engaged in “armed conflict” in its boat strike campaign.
“[F]or the administration to claim U.S. forces are in an armed conflict but not hostilities would be nonsensical to those members of Congress who passed the legislation,” Finucane wrote for Just Security.
Officials’ assertion of control over war powers is a show of how the Trump administration seems to be shifting its legal reasoning on the fly to continue its strikes. Trump, for his part, appears unconcerned with legal reasoning, simply saying last month: “I think we’re just gonna kill people that are bringing drugs into our country, okay? We’re going to kill them.”
Trump administration officials are also purposefully withholding information from lawmakers. Last week, in a separate briefing, the administration excluded Democrats in a briefing with Senate Republicans on the strikes. And in briefings so far, lawmakers say the Pentagon has not provided lists of which gangs they’re targeting or the identities of those killed.
In fact, Rep. Adam Smith, the top Democrat on the House Armed Services Committee, told The New Republic that the administration said they are targeting anyone “affiliated” with “narco-terrorist” groups — and that the administration won’t even explain what constitutes an “affiliation.”
“They did not in any way, shape, manner, or form explain what the ceiling and floor are for ‘affiliated,’” Smith said. Smith added that the administration’s treatment of survivors of the strikes — all of whom so far have been repatriated to their home countries — underscores the illegality of the operations.
Smith says he told administration officials: “So what you’re telling us is you need less evidence to kill somebody than you do to hold them.”
Meanwhile, the operation is seemingly constantly on the verge of expanding into a ground war. Last week, Miami Herald and The Wall Street Journal reported that the U.S. is prepared to strike ground targets within Venezuela.
In response to these reports, President Donald Trump said their claims are “not true” — even though, just weeks before, Trump said that the administration is “certainly looking at land now” for strikes.
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