The Trump administration does not believe the strikes the military has conducted targeting alleged drug smugglers in the Western Hemisphere meet the threshold to be regulated by a decades-old law designed to enshrine Congress’s role in declaring war.
Any U.S. president needs approval from Congress for sustained military action following the passage of the 1973 War Powers Resolution, which President Richard Nixon opposed toward the end of the Vietnam War.
The Trump administration notified Congress on Sept. 4 of its first strike targeting an alleged drug smuggling vessel, which occurred on Sept. 2; that started a 60-day time period as outlined by the War Powers Resolution.
At the end of that period of time, the president has to stop all military action unless Congress has declared war, extended the deadline by 60 days, or is unable to meet in that time as a result of an armed attack. None of those things have happened to date, and the 60-day period ended Monday.
The Trump administration does not believe the current level of these operations meet the criteria to fall under the War Powers Resolution. A senior administration official told the Washington Examiner, “Even at its broadest, the WPR has been understood to apply to placing U.S. servicemembers in harm’s way.”
“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 official continued. “The kinetic operations underway do not rise to the level of ‘hostilities.’”
The head of the Department of Justice’s Office of Legal Counsel, T. Elliot Gaiser, told a handful of lawmakers last week of the administration’s view, according to multiple outlets.
Another part of the WPR requires the administration to notify Congress within 48 hours of military action, and the Trump administration complied with this requirement in early September.
The administration’s stance that the current way these operations are conducted does not meet the definition of “hostilities” is seemingly incongruent with their notification to Congress that the United States is in a “non-international armed conflict” with the cartels, whom they’ve deemed “terrorist organizations” and their members “unlawful combatants.”
In more than a dozen strikes since the start of September, the U.S. military has killed more than 60 people, whom they allege were drug smugglers. Neither the administration nor the military have released any details about the drugs allegedly on these vessels or the identities of the people killed.
The lack of details about the operations has infuriated members of Congress on both sides of the political spectrum.
Senate Armed Services Committee Chairman Roger Wicker (R-MS) and ranking member Jack Reed (D-RI) released two letters last week that the pair previously sent to Secretary of War Pete Hegseth seeking additional information on the strikes.
They are seeking every execute order given by Hegseth or relevant combatant commanders that underpin these activities, any written opinions from the Department of Justice’s Office of Legal Counsel, and a complete list of all the drug cartels that have been designated as foreign terrorist organizations with whom the administration has said are in an armed conflict with the United States.
They sent the first letter on Sept. 23 and the second on Oct. 6. The committee said on Friday that none of the requested documents had been submitted yet.
The Trump administration is far from the only one to press its limits on military operations without congressional approval. President Ronald Regan’s deployment of troops to El Salvador in 1981, the bombing of Kosovo under former President Bill Clinton, and the NATO bombing campaign in Libya under former President Barack Obama all challenged the resolution.
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The U.S. military has a significant build up of thousands of troops in the Caribbean to aid in these counter-narcotic operations. More troops are on their way to the region, further indicating the administration does not plan to conclude these operations at the end of the 60-day window.
Trump administration officials have ratcheted up the pressure on Venezuelan leader Nicolás Maduro, whom the U.S. considers to be a drug kingpin and an illegitimate leader. The president has publicly raised the possibility that the U.S. military could begin going after targets on Venezuelan soil, which would be a significant escalation.