The move deepened the idea that a Vietnam-era law, which says congressionally unauthorized deployments into “hostilities” must end after 60 days, does not apply to airstrike campaigns.
Charlie Savage and Julian E. Barnes
Air Force personnel prepared an MQ-9 Reaper drone in Puerto Rico last month.Credit...Ricardo Arduengo/Reuters
The Justice Department told Congress this week that President Trump could lawfully continue his lethal military strikes on people suspected of smuggling drugs at sea, notwithstanding a time limit for congressionally unauthorized deployments of armed forces into “hostilities.”
In a briefing, the official who leads the department’s Office of Legal Counsel, T. Elliot Gaiser, said the administration did not think the operation rose to the kind of “hostilities” covered by the 60-day limit, a key part of a 1973 law called the War Powers Resolution, according to several people familiar with the matter.
In a statement provided by the White House, an unnamed senior administration official said that American service members were not in danger because the boats suspected of smuggling drugs were mostly being struck by drones far from naval ships carrying U.S. forces.
“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 said.
The U.S. military has killed about 62 people across 14 airstrikes on boats in the Caribbean Sea and eastern Pacific so far, and the administration has told Congress that Mr. Trump “determined” that the operation counts as a formal armed conflict.
But the stance that the operation does not count as “hostilities” because the people on the boats could not shoot back builds on a precedent established by President Barack Obama during the 2011 NATO air war over Libya, to significant disagreement at the time in Congress and within Mr. Obama’s own legal team.
The War Powers Resolution says that a president who unilaterally deploys U.S. forces into hostilities “shall terminate” the operation after 60 days if Congress has not authorized it by then. But the legislation left the term “hostilities” vague.
Under that law, the clock starts no later than when a president submits a required 48-hour notice to Congress. President Trump notified Congress about the first strike in his operation on Sept. 4, meaning the 60th day will arrive on Monday. That timing had raised the question of whether he would stop or, if not, how he would justify continuing the operation.
When the White House, Pentagon and Justice Department were asked that question by The New York Times last Wednesday, the administration provided a general statement that did not clarify. But Mr. Gaiser laid out the administration’s position in briefings to lawmakers and some staffers last week. His comments were earlier reported by The Washington Post.
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