Trump Administration Says Drug-Boat Strikes Are Not Really ‘Hostilities,’ as Death Toll in Caribbean Climbs

The administration is taking this position despite having killed over five dozen people in at least 15 drone strikes.

T hree more people were killed by a U.S. strike on a boat in the Caribbean on Saturday, according to a social media post that Defense Secretary Pete Hegseth published late on Saturday night. That brings the number killed to at least 64 since September 2, the start of the attacks. Such combat operations have neither been authorized by Congress nor provoked by any military threat against U.S. interests. The attacks have nevertheless been carried out by the prodigious American forces President Trump has amassed — and continues to amass — in the region.

‘EXACTLY’ the Same as al-Qaeda?

As has become customary, Secretary Hegseth did not attempt to identify the boat operators who were killed. He neither offered proof that the vessel was carrying illegal narcotics (just that it “was known by our intelligence” to be doing so) nor claimed that the boat was en route to the United States — just that it was somehow “involved in illicit narcotics smuggling” and that “narco-terrorists are bringing drugs to our shores to poison Americans at home.”

Hegseth added that our government would treat these “narco-terrorists . . . EXACTLY how we treated Al-Qaeda,” in that U.S. forces “will continue to track them, map them, hunt them, and kill them.” Yet, it is obviously untrue that our government is treating the boat operators “EXACTLY how we treated Al-Qaeda”; as the defense secretary and the president well know, the tracking, mapping, hunting, and killing of al-Qaeda was authorized by Congress after al-Qaeda killed nearly 3,000 Americans in a massive terrorist attack on our homeland.

Moreover, “narco-terrorist” is not a status in American law — not in the narcotics laws, not in the terrorism laws, and not in the laws pertaining to armed conflict. It is a rhetorical term loosely derived by administration officials from a drug statute (Section 960a) that enhances penalties for narcotics-dealing if the proceeds are contributed to terrorist activity. Section 960a does not say that narcotics dealing is terrorist activity. It merely brings the drug laws into line with other federal statutes that make it a felony offense to provide material support to terrorism (see Section 2339B of the penal code). Under federal law, the extensive definitions of terrorism do not refer to drug crimes.

Importantly, no American narcotics or terrorism law authorizes the use of military force. The congressional statute that empowers the executive branch to designate terrorist organizations, codified at Section 1189 of immigration law, enables (a) criminal prosecution (see Section 2339B, linked above), (b) the seizure of assets (see Executive Order 13224, issued pursuant to the International Emergency Economic Powers Act), and (c) the exclusion or deportation of aliens involved in terrorist activity (see Section 1182(a)(3)(B) of the immigration laws). It does not authorize the use of force.

Hegseth’s frequent comparisons of the treatment of alleged drug-boat operators in the Caribbean to al-Qaeda jihadists post-9/11 sedulously avoid mention of the authorization for the use of military force (AUMF) approved by overwhelming bipartisan majorities in both chambers of Congress a week after the 9/11 atrocities. It is the AUMF that authorized the strikes against jihadist terrorists to which Hegseth refers.

Hegseth also stresses that, just as al-Qaeda was designated as a foreign terrorist organization, the administration has similarly designated as FTOs the cartels it claims — with scant detail — are complicit in narcotics trafficking on the high seas. But our government’s 1999 designation of al-Qaeda as a foreign terrorist organization did not authorize military force. (The designation followed al-Qaeda’s 1998 bombings of U.S. embassies in Kenya and Tanzania, and it is highly likely that Congress would have authorized force had President Clinton asked it to do so. Instead, Clinton ordered some ineffective strikes on suspected al-Qaeda safe havens in Afghanistan and Sudan, and otherwise had his Justice Department indict numerous members of al-Qaeda — most of whom were overseas, beyond the capacity of our law enforcement agencies and courts to reach.)

Over 60 Dead in 15 Strikes by a U.S. Armada Is Not ‘Hostilities’

As for the congressional law that actually does relate to the use of force, President Trump has now decided that it does not apply in the Caribbean because, according to the administration, there are no real “hostilities” there.

The administration is taking this position despite having (a) killed over five dozen people in at least 15 drone strikes, (b) notified Congress that our forces are in an armed conflict, and (c) amassed in the Caribbean at least eight warships, F-35B jet fighters, P-8 Poseidon surveillance planes, AC-130J Ghostriders, MQ-9 Reaper drones, the Army’s 160th Special Operations Aviation Regiment (the “Night Stalkers”), and thousands of Marines from the 22nd Marine Expeditionary Unit specially trained to conduct special ops — a deployment to which Hegseth has ordered the USS Gerald R. Ford and its carrier strike group (featuring the Navy’s most advance aircraft carrier) to join.

The War Powers Resolution (WPR) was enacted in an override of President Nixon’s veto in 1973. Some of its provisions have been constitutionally controversial, regarded by presidents of both parties as an infringement on the president’s commander-in-chief powers. In addition, it has been materially defanged (a) by the assumption that the Supreme Court’s 1983 invalidation of the legislative veto (in INS v. Chadha) would void the WPR’s similar provision (see WPR, Section 1544(c)); and (b) because the main congressional check on executive noncompliance with the WPR is impeachment, which is politically impracticable.

Still, to avoid constitutional crises, presidents of both parties have tended to comply with the statute’s notice provisions (see, e.g., WPR Sections 1543 and 1543a) and otherwise jesuitically construe the WPR such that it supposedly doesn’t apply (even when it plainly does — unless you think we would not regard as “hostilities” drone strikes by a hostile foreign power on private American vessels situated in international waters off our coastlines).

In general, the WPR requires the president to notify Congress whenever U.S. forces “are involved in an attack or hostilities” (see Section 1543a). The statute requires the president to terminate “any use” of the armed forces involved in the relevant deployment,

unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such 60-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.

Absent such congressional approval or inability to convene, a president may extend the deadline by 30 days, but only to ensure the safe withdrawal of U.S. forces (see Section 1544(b)).

Based on an opinion by the Trump Justice Department’s Office of Legal Counsel (now led by Trump appointee T. Elliot Gaiser), the administration last week informed a small group of lawmakers that the WPR deadlines do not apply because the drone operations ongoing in the Caribbean do not rise to the level of hostilities necessary to trigger the WPR. The OLC reasons that because the strikes are executed by drones, which are guided fairly remotely from where the boats are struck, no U.S. military personnel are at risk of return fire.

An unidentified Trump administration official contended in an email to Washington Post:

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.

For what it’s worth, I believe this is a meritless rationale. There are, right now, thousands of U.S. military personnel deployed in the Caribbean precisely to protect the military assets carrying out the strikes. That’s because our forces are undoubtedly in harm’s way.

There could well be attempts to retaliate because of the strikes. (As the Navy well remembers, in October 2000, the USS Cole, a Navy destroyer then docked in Yemen, was attacked by al-Qaeda terrorists who had furtively approached it in a small, explosive-laden boat, killing 17 Americans.) President Trump has previously claimed that terrorists operating in the Caribbean (and in the United States) are partially controlled by the Venezuelan regime of Nicolás Maduro (a claim U.S. intelligence agencies dispute). It has been widely reported that the U.S. operations in the Caribbean have caused the Maduro regime to put its forces on high alert, including its Russian-made anti-ship missiles. Furthermore, the regime has recently sought additional arms from Russia, China, and Iran.

I would add, as pointed out above, that the existence of hostilities is not the sole WPR trigger. The statute also controls if our forces are “involved in an attack” (emphasis added). No matter how the term hostilities is defined, there is no doubt that our forces have carried out many attacks (at least 15, according to reporting).

Controversial Precedents Supporting the Trump Position

To be fair, the Trump OLC’s position is not without precedent, although the precedents are controversial.

In 2011, President Obama continued his unauthorized use of force in Libya beyond the 60-day limit. He theorized that, although American forces were conducting aerial attacks, they were not really in harm’s way because the Qaddafi regime was not in a position to fight back. As the New York Times has reported (here and here), the Obama DOJ’s OLC objected to the president’s distorted construction of “hostilities” but was overruled by the White House.

The Times further relates that the Ford administration narrowly construed hostilities to refer to situations in which our forces were “actively engaged in exchanges of fire” — not just somehow involved in combat. And for six months (stretching from September 1994 into March 1995), President Clinton deployed American troops to Haiti for peacekeeping purposes. The Clinton DOJ’s OLC attempted to justify the deployment (not very convincingly) but not the noncompliance with the 60-day deadline.

The Obama and Clinton deployments without congressional authorization were widely opposed by Republicans and conservatives (and in those eras, there was less daylight between Republicans and conservatives than there is today). Currently, congressional Republicans have mainly rationalized Trump’s Caribbean deployment and blocked Democrats (and a handful of dissenting Republicans) from invoking the WPR and pressing questions.

That could be changing thanks to the incoherence of the administration’s contentions.

The above-cited Post report indicates that Chairman Roger Wicker (R., Miss.) of the Senate Armed Services Committee joined Democrats in complaining that the Pentagon has dragged its feet in producing legal documents, attack orders, and a target list related to the operation. And House Democrats say administration officials have told them that, to justify the lethal strikes, it is unnecessary to know the identities of the boat operators being targeted, or even whether drugs are in fact present on the boats, as long as their intelligence shows some “connection to a designated terrorist organization or their affiliate.”

That is alarming if House Democrats are accurately describing the administration’s position (which is unknowable in the absence of hearings, since Democrats are known to distort what the president and his underlings say). Again, the designation of a group as a foreign terrorist organization does not authorize military force.

In the absence of a congressional AUMF, the predicate for legitimate lethal attacks is the existence of an armed conflict or at least a threat of a forcible attack on American interests. There has been no threat of forcible strikes against the U.S. or our interests; to the extent there is armed conflict, it is only because our forces are conducting armed attacks.