Trump attacked Syria, a needed, yet unconstitutional, move.
Bashar al-Assad is a monster. His atrocities have claimed hundreds of thousands of lives and displaced millions. He’s committed war-crimes, most notably multiple chemical gas attacks against Syrian rebels, resulting in hundreds of death and unimaginable agony for women, children, and all dissidents. Make no mistake: Assad belongs behind bars; regime change – democratization – is absolutely necessary. The despot must not remain.
American intervention has long been needed. Our failure to act over the course of four years has condemned too many to suffering or death. It’s allowed Russia to assert itself into the region to support the autocratic regime, nominally in the name of fighting ISIS, but actually fighting Syrian rebels. We need to act, but, as a nation of laws, we must only do so with respect to domestic and international law/
Trump’s surprise airstrikes that followed a dramatic policy shift, overturning in just 48 hours beliefs he held since 2013, are illegal. They find no justification in domestic or international law. Let’s break it down.
Congress, not the president, has the power to declare war. Such a constitutional design emerged from the Founders’ brilliant separation of powers. There are, of course, exceptions to this general rule: The president “is bound” to respond to any attack on the country regardless of congressional approval for such actions. But the true extent of the president’s unilateral authority remains hotly contested with constitutional purists giving the president little war-making leeway while some analysts declare that to preserve national security and promote national security interests, the president has broad powers to commit military strikes without receiving explicit approval from Congress.
The Supreme Court has not fully grappled with or solved this difficult balancing act. That said, Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer guides constitutional and jurisprudential thinking on the subject. He divides executive power into three categories:
- Full congressional approval. “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
- When Congress has been silent. “When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.”
- When the president acts against the wishes of Congress. “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
Into which bucket did Trump’s action fall? Certainly not the first – though President Obama (and likely President Trump) use an early-2000s authorized use of military force (AUMF) to fight ISIS, though many analysts do not believe the AUMF covers ISIS engagements, that certainly does not cover attacking a standing regime that poses no international terror threat. Likewise, his actions probably don’t fall into the third bucket. Congress has not explicitly forbidden strikes against Assad or the Syrian regime. Back in 2013, both chambers refused to consider an AUMF desired by Obama and many members still in power today voiced their opposition to such an action. That may be the “implied will” of some members, but certainly not the chamber writ large, especially given that in recent days, many representatives and senators have supported some sort of American action to punish Assad for his most recent war-crime. It could, however, be easily and validly argued that since, in 2013, 100 representatives urged Obama to receive explicit authorization from Congress before attacking Syria, Congress would expect the same request after a less horrendous gas attack in a more complication geopolitical situation. Trump’s actions probably fall into the “twilight zone,” the most difficult to analyze.
The White House Office of Legal Counsel (OLC) provides justification for executive action. Though, as Jack Goldsmith (from whose writing much of the following paragraphs is based) notes, the legal reasoning presented by the OLC carries no judicial weight, it still serves roughly as precedent for administrations as they grapple with unilateral executive military authority, especially action in the “twilight zone.” In interpreting Article II, the OLC “sets forth a two-part test for determining when a presidential use of military force abroad is consistent with the Constitution”:
- Does the president have “presumptive authority to use force unilaterally”?
- What is the (anticipated) nature of the strike or engagement?
America’s “national interest” permeates answers to the first question. The OLC believes the president can unilaterally act if doing so furthers the “national interest,” especially if such an action does not risk dragging America into a long-term engagement (ie, if the action is of limited nature and scope). Trump’s actions quite likely fulfill the second question’s requirements. A one-time airstrike against Syrian airfields that gave advanced notice to other state actors whose military supplies and assets lived near the targets risks little escalation. Of course, Trump being Trump, there’s much uncertainty as to whether he is content with a single airstrike. The favorable news coverage he’s received might push him into further action; such speculation, though, is not reason to question whether this strike broke the OLC’s second test.
Though the second criterion is likely fulfilled to legal satisfaction, the first is not. What “national interest” is Trump defending or promoting by attacking Syria? We have few assets in the state – just 1,000 troops. Regional stability and peace could satisfy the test, though pointing to such actions, a step removed from the immediate national interest, puts the president on still shakier ground. Even those are lacking in Trump’s actions. Risking Syrian, Russian, and Iranian retribution or escalation would greatly destabilize the Middle East. Similarly, a central argument against overthrowing Assad is the fear that doing so would create a power vacuum form which ISIS or another extremist organization could emerge, especially if in the process chemical weapons are dispersed among disparate and antagonistic parties. Little immediate regional stability can be gained. Attacking Assad should discourage further use of chemical weapons, therein promoting peace, but the opposite could be true as well. Assad could react by refusing to help fight ISIS, putting Russia in an uncomfortable position of naked regime support without the guise of fighting terrorism. The lack of clear consequences is another reason why unilateral action should not have been taken: These questions and discussions should be debated by the body with war-declaring authority so we can publicly examine all potential consequences and act without haste. Neither our national interest nor the region’s stability are augmented by unilateral executive action, meaning that Trump’s strikes fall short of the OLC test.
It’s important to note that by its very executive branch nature, the OLC takes an expansive viewpoint of executive authority. The office seeks to make legal broad presidential power – their reasoning might not be accepted by a court of law. If actions fail to meet lenient OLC tests, they almost certainly wouldn’t find favor by constitutional jurists. Therefore, it’s reasonable and logical to conclude that while Trump’s actions fell in the “twilight zone” of authority, his actions are unconstitutional. His strike needed congressional approval.
Trump’s actions also break international law. As Marty Lederman notes, “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),” Trump’s attack “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.’” The UN charter is a treaty and thus the supreme law of the land. Violating the treaty without congressional authority (Whitney v. Robertson, Chae Chan Ping v. US, and Breard v. Greene) is tantamount to violating Article VI of the Constitution.
This is notably different from Obama’s actions in Libya because, despite having no congressional authorization, he had cover from the United Nations Security Council. Similarly, using President Bill Clinton’s Kosovo bombing as precedent does little to make legal the Syria strike. Ashley Deeks, another Lawfare blogger, emphasized the important distinction between a legitimate and a lawful action. Humanitarian concerns make legitimate any American actions, but legitimacy does not equate with legal. Another glaring difference immediately emerges: NATO and the EU both condoned military action in Kosovo; no international organization approved such action against the Assad regime. So while the Kosovo precedent further strengthens the legitimacy of the strike, it doesn’t address legal questions, leaving Trump in violation of international law.
The United States needed to attack or otherwise punish Assad. However, the use of military force requires congressional authorization, an argument made repeatedly by the likes of Paul Ryan in 2013. There is no domestic legal or argued precedent for such unilateral behavior. International law similarly provides no such cover. As a nation of laws and process, we must follow those principles even when facing monsters. Trump violated the Constitution. He must immediately ask Congress for an AUMF and not act in Syria again until he has such authorization.