The absurdist war powers legal reasoning of the Trump Administration continues

This article was originally posted by Dan Maurer. Read the original here.

The Trump Administration continues to confound the gods of legal reasoning with its inability to maintain a consistent — let alone plausible — legal argument in defense of its extraordinary assertions of executive power. This time, their tenuous legal reasoning relates to the continued use of drones to eliminate illicit drug-carrying vessels and their crews on the high seas (international waters in the Caribbean Sea). Under the War Powers Resolution of 1973, Congress must be notified of the President’s use of military engaged in hostilities within 48 hours of commencing and must discontinue after 60 days from that notification unless Congress affirmatively authorizes it by declaring war or enacting an “Authorization for the Use of Military Force” as it did for Iraq in 2002 and Afghanistan in 2001.

The WPR does not expressly define “hostilities,” but there is a clue to what Congress meant in the legislative history of the WPR: Per HR Rep. No. 93-287, at 7: “hostilities” = actual fighting, or a “state of confrontation” where no shots fired but there is a “clear and present danger of armed conflict.”

Here’s the recap of what’s happened and what the Trump Administration is saying or suggesting its legal authority is:

-on Sept 2, it started air strikes on alleged “narcoterrorist” drug speedboats in the Caribbean.

-on Sept 4, it notified Congress that we are in an “armed conflict” with drug cartels and gangs like Tren de Aragua, “nonstate organized armed groups” and therefore “targetable” under the Laws of Armed Conflict (aka, law of war, aka International Humanitarian Law - mostly the Geneva Conventions and Hague Conventions plus customary international law norms); the Administration claims that the strikes (now at least 14, killing at least 60) comply with the Laws of Armed Conflict

-on Nov 1, DOJ’s Office of Legal Counsel informed some members of Congress that the War Powers Resolution of 1973 (passed over Nixon’s veto) does NOT apply to the boat strikes (which would mean Congress cannot stop them) because we are NOT “in hostilities” with those cartels and narcoterrorist gangs.

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Problem 1:

We were never in an “armed conflict” with these groups to begin with in part because they are not “organized armed groups” within the meaning of international law or the U.S.’s own practice, and not engage in “protracted armed violence” of sufficient intensity; nor did they “attack” us under the meaning of “attack” in international law, and they individually were not “directly participating in hostilities” (another legal term of art in international law binding on the U.S.) which means that our use of force against them absent true self-defense was illegal from the first strike on…it means we were (are) killing alleged criminals extrajudicially, which is “murder” under any system of law.

Problem 2:

Trump has already acted consistently with the WPR by notifying Congress of the first strike on 4 Sept … in fact, he said “consistent with the WPR,” which would suggest that he believed at the time this “armed conflict” meant we were engaging in hostilities.

Problem 3:

The legal argument that supposedly defends and explains all this from the DOJ’s point of view has not been published or even shown to members of Congress. There is ZERO explanation or rationale for why it should remain classified when his other OLC opinions on using military force abroad (e.g., Syria) from his first term were released quickly.

Problem 4:

The reason offered by the White House and the OLC for why we’re not in “hostilities” with these targets is ridiculous: because we’re using drones from ships and not at all at risk of return fire from the drug boats, we’re not in hostilities with them… This is not how international law or common sense defines hostilities or whether an armed conflict exists. It would mean, as Brian Finucane has pointed out, that we could strike anybody anywhere anytime with no way for Congress to intervene and stop it using their constitutional powers as long as drone or other “standoff” weapon is used and no servicemembers are personally at risk of coming to harm from the target.

Problem 5:

If we’re NOT engaging in “hostilities” with these targets, then the “armed conflict” legal justification for extrajudicial killing these purported narcoterrorists falls apart…

…which means, by the DOJ’s own contorted and specious reasoning, we’re right back to “it’s murder”