The head of the Department of Justice’s powerful Office of Legal Counsel (OLC), T. Elliot Gaiser, told select Senate and House lawmakers on Thursday that the US strikes on alleged drug boats in the Caribbean Sea and Pacific Ocean did not trigger the law’s requirements because they don’t meet the definition of hostilities and did not require a declaration of war from Congress, said the sources, who spoke on the condition of anonymity because of the sensitivity of the matter.
Gaiser was drawing on a classified legal opinion produced by his office that justifies the strikes by equating drug cartels with terrorists and focuses on the death caused by the drugs brought to American shores, the sources said.
Gaiser emphasised the fact that the US military wasn’t being attacked in response to the strikes as part his argument that America was not at war, the sources said.
The US military has carried out at least 15 known strikes against alleged drug-smuggling vessels since early September, killing a total of 64 people, according to a CNN tally. The latest known strike occurred on Saturday in the Caribbean, killing three people.
Some legal experts have said the military strikes could violate US and international law. Democratic lawmakers, and at least one Republican, have criticised the administration for not being more forthcoming with details on the legal justification for the strikes.
The Trump administration notified Congress in early September that it had struck an alleged drug vessel. Under the 1973 War Powers Resolution, that notification started a 60-day clock, after which the administration has to either cease the use of military force, get an extension on the clock or a war authorisation from Congress, according to legal scholars.
But Gaiser told lawmakers that the administration does not need to seek an extension of that 60-day clock, which expires on Monday, because the law doesn’t apply in this case, the sources said.
CNN first reported on the existence of the OLC opinion, which legal experts said appears to justify an open-ended war against a secret list of cartels and suspected drug traffickers. The opinion appears designed to give the president power to designate drug traffickers as enemy combatants and have them summarily killed without legal review, those experts said.
Historically, those involved in drug trafficking were considered criminals with due process rights, with the Coast Guard interdicting drug-trafficking vessels and arresting smugglers.
CNN has requested comment from the White House and the Justice Department on the congressional briefings and the administration’s legal rationale for striking the alleged drug boats.
The Washington Post first reported on Gaiser’s briefing of lawmakers.
President Donald Trump issued an executive order on the first day of his second term designating certain drug cartels as foreign terrorist organisations, giving the US military greater leeway to attack them. The administration’s strikes on alleged drug boats have coincided with increased pressure on the regime of Venezuelan autocrat Nicolás Maduro.
Trump is considering plans to target cocaine facilities and drug trafficking routes inside Venezuela, though he has not yet made a decision on whether to move forward with them, CNN reported last month.
