by Travis Normand
April 7, 2017
This is currently a rough draft and needs to be edited. However, due to current events, I am posting the rough draft for any and all to read.
The U.S. fired 59 Tomahawk cruise missiles at Syria in response to what it believes was a chemical weapons attack that killed more than 100 people. For more on the attack itself, you can read about it here at CNN.com and CNBC.com.
The chemical weapons attack, carried out by the Assad regime (apparently), is a violation of the Chemical Weapons Treaty. The use of chemical weapons are banned under the law of armed conflict because, among other things, they are indiscriminate and cause inhumane suffering. Further, the use of chemical weapons are also banned under customary international humanitarian law (thus, even if Syria wasn’t a party to the treaty, the use of these weapons would still be illegal).
However, we now sit and wait to hear (or read) the President’s explanation of his legal authority to conduct such an attack on Syria. While most legal and political pundits that I have been listening to agree that the attack was most likely the “right thing to do,” they all seem to be anxiously awaiting the legal justification for the attack as they are not sure there is a strong one.
Lets quickly review the legal framework in which the President can unilaterally act with military force (and this is about as brief as I can make it, so please excuse the lack of detail). In order to act, the President would need either international or domestic authority. The international authority is relatively simple, as a nation can act with UN Security Council approval, in self-defense, or in the defense of other nations. The domestic authority is that “the President can act unilaterally if two conditions are met: (i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be ‘sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,’ a standard that generally will be satisfied ‘only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period’ (quoting from the 2011 Libya opinion).” (Following quote taken from HERE.)
At this point in time, we are not completely sure what Trump will claim as his authority, and all we can do is wait and see, and guess, as to what his justification might be. Some have suggested that the President might try and use the 2001 AUMF to bolster his authority (claiming that the AUMF is Congress’ authorization for the strikes in Syria). While I think the use of the AUMF is a stretch, Congress will validate this claim of authority (if used by the President) by not responding in the negative to such a claim by the President.
In other words, both George Bush and Barack Obama relied on the AUMF in situations that could be considered a stretch. However, Congress’ lack of response to their claims could only be interpreted by the executive as acuquiecense (or consent).
On April 6th, John Bellinger wrote a column regarding the legal basis for the attack and published it at LawFareBlog.com. I highly recommend reading it, and you can find it HERE.
Marty Lederman wrote that the strikes against Syria probably violate the U.N. Charter and thus also violate the U.S. Constitution. His column was posted at JustSecurity.org and you can find it HERE. In his column, Lederman writes:
. . . the operation raises jus ad bellum questions, wholly separate from the jus in bello. Ryan is right that the strikes against Syria — done in the absence of a U.N. Security Council resolution, and without any apparent justification of self-defense (as the Pentagon explained, its function is to “deter the regime from using chemical weapons again,” presumably against Syrian nationals) — violate Article 2(4) of the United Nations Charter, which requires the U.S. and all other signatory states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” [I should note here that our friend and co-blogger Harold Koh has recently argued (see pp. 1004-1015 here) that certain humanitarian interventions–perhaps, but not necessarily, including President Trump’s actions this evening–would not violate Article 2(4) by virtue of an alleged developing new customary exception. In my view, whatever the merits of such a rule of international law might be (and they are many), it cannot be established by custom in the teeth of a treaty prohibition.
If you want to read about Harold Koh’s humanitarian intervention exception, you can find it HERE. I am not sure where I stand on this yet (with Koh or Lederman), however, I am leaning towards Lederman’s interpretation that one cannot carve out an exception to an outright prohibition found in a treaty.
Regardless, the merits of Trump’s Syria operation and its legality under international law are matters wholly separate from the domestic legal question of who — the executive or Congress — has the authority to decide whether the United States will take part in combat.
There are a lot of situations where I side with the likes of John Yoo (I can’t believe I just wrote that), Alexander Hamilton (see Federalist No. 70), and arguably the Supreme Court (in certain circumstances), in that I feel as if the executive has more power to unilaterally conduct military operations regardless of any Congressional support. And while I am not willing to say the executive has absolute power to do as he pleases, I am at least willing to argue that there are specific circumstances where he does have this power (see Justice Robert Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) and Prize Cases etc.).
Of course the argument over whether Trump (or the executive) has the power to conduct these types of attacks unilaterally, is not a new one. You can read about the “Declare War Clause” here and whether or not Congress has to give a declaration before the President can act. If that article isn’t enough, you can read even more HERE, which includes a discussion on the War Powers Act. In fact, just Google something similar to “war powers, the president or congress” and you will get articles like this one, and many more, which show you how complicated this question is.
It wasn’t that long ago that President Obama was trying to make the same argument that many expect President Trump to make in the near future. In fact, there are legitimate arguments to be made that Obama expanded the executive’s war powers more so that George Bush did after 9/11. Here is an article from 2011 discussing the debate over whether Obama needed congressional authorization before he took action Libya. Further, here is the letter Obama wrote to congress explaining his actions and his authority.
In fact, it seems that every time the President takes any military action, Congress starts claiming he cannot do so without their express authorization. This makes sense on Congress’ part, considering they are merely protecting their right under the Constitution to make such a claim.
The tweet above from Senator Rand Paul is a perfect example of a member of the legislative branch staking claim to their interpretation of power in the constitution. However, without delving into another debate, I believe the U.S. Constitution says (Article I, Section 8, Clause 11): (emphasis added)
[The Congress shall have Power…] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
The difference between what the constitution says, and what Rand Paul is claiming is not insignificant. Paul says the President needs authorization for any “military action” as required by the conception. However, the constitution says “war.” In this regard I disagree with Senator Paul.
My guess as to what the President will use as his authority: “National Security Interests.” Further, the idea that seeking congressional authorization would compromise his endeavors and thus jeopardize his ability to secure his National Security objectives, will be at least one of the reasons Trump did not ask for Congress’ authorization (not to mention the fact that Trump will simply state, or merely imply, that precedent says he doesn’t have to ask Congress for anything). Trump may even cite to the humanitarian exception (see Koh above), and possibly even the AUMF as it is Congress’ express authorization to conduct war (in a specific instance post 9/11). Citing the AUMF will put the ball in Congress’ court; if they disagree with the President and do not believe the AUMF works as authority for this type of military strike, then they will be forced to act and say that they disagree (and the AUMF is not for this purpose). However, if Congress remains silent and fails to address the AUMF issue, the President will be able to interpret the AUMF in an even broader capacity and use it in future endeavors.
What Trump will not do is state he is obligated under the War Powers Act to seek authorization within 60 days. There is no way Trump will give up this ground. Obama flirted with the War Powers Act, but I don’t think (and would be surprised) if Trump even mentioned it. However, that is just a guess by me.
The other justification I could see Trump trying to use is that of the defense of others although I’m not sure that will work. Having said that, I think Tump’s most likely justification (in terms of most likely being an ‘effective’ justification) is that this is a national security issue and thus it is something that is left solely to the executive’s discretion (subject to review), as well as the fact that Syria’s use of chemical weapons pose a threat so dangerous that it can be considered an imminent enough of a threat to the national security of the U.S. (and its citizens both home and abroad). But I guess we shall see.
On the other hand, if I were arguing against the President’s authority to make such a strike, I would point out that the threat was not so imminent as to prevent the President from seeking congressional authority. In other words, the President had plenty of time to seek Congressional authority before carrying out this attack. (Of course, Trump’s rebuke to this would be that it would compromise his national security objective to request such authority.)
In the end, Congress doesn’t like not being asked first, but until they step up and say more than just “you are supposed to ask our permission,” no permission will be requested by the executive. In fact, until they stand up and clearly state that what the President has done exceeds any grant of authority they may have given, they might as well acquiesce to his actions.
(For the record, the above is nothing more than my guess as to what Trump will use as his authority for the attacks in Syria. The foregoing opinion does not mean that I agree with his actions, that I am condoning his actions, or that I believe Trump acted within his legal capacity to order these strikes. Therefore, in an attempt to do what Congress apparently will not do, I will go on record and say that I think Trump has exceeded his Presidential authority in making this attack on Syria. However, if no action is taken against him, by Congress, he is effectively widening the scope for when the President may respond with military force.)
- (Apparent) Administration Justifications for Legality of Strikes Against Syria, by Marty Lederman, posted April 8, 2017 on JustSecurity.org.
- Clinton, Kosovo, and the Final Destruction of the War Powers Resolution, by Geoffrey S. Corn, William & Mary Law Review, Volume 42, Issue 4 (What qualifies as Congressional Consent/Authorization?)
- International Law is Failing us in Syria, by Rebecca Ingber, posted April 12, 2017 on JustSecurity.org.
- Senators McCain and Graham’s Alarming Suggestion that the Conflicts With ISIS and Assad are “Inextricably Connected,” by Steve Vladeck, posted April 12, 2017 on JustSecurity.org.
- Tracking the White House’s Reasons for Bombing Syria, by Kate Brannen, posted April 11, 2017 on JustSecurity.org
- Apples and Oranges–Obama’s and Trump’s Plans to Strike Syria for Chem Weapons Use, by Ryan Goodman, posted on April 10, 2017 on JustSecurity.org.
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