Would A Syria Strike Be Legal? Does It Even Matter Anymore?

Over the last several days, President Trump has made a series of vague threats about how we will respond to the Syrian government’s most recent reported chemical attack on its own citizens.

“Nothing’s off the table,” he said during a cabinet meeting. “If it’s Russia, if it’s Syria, if it’s Iran, if it’s all of them together, we’ll figure it out and we’ll know the answers quite soon.”

And just this morning Trump tweeted that we’d be firing missiles at Syria soon. Notably, and considering the stakes most frighteningly, he addressed this to Russia:

Russia vows to shoot down any and all missiles fired at Syria. Get ready Russia, because they will be coming, nice and new and “smart!” You shouldn’t be partners with a Gas Killing Animal who kills his people and enjoys it!

— Donald J. Trump (@realDonaldTrump) April 11, 2018

Which was brought to you by the same guy who tweeted this:

What other country tells the enemy when we are going to attack like Obama is doing with ISIS. Whatever happened to the element of surprise?

— Donald J. Trump (@realDonaldTrump) August 8, 2014

But would military action against the Syrian government be legal? The short answer is no. It’s likely unconstitutional, and it’s a consequence many Americans have been concerned about ever since the President assumed sweeping new war powers in response to the September 11 attacks. What the American people think of this, or don’t think of it, says a lot about our awareness of the wars we’re fighting, as well as our appetite to check the authority of our executive branch. If Trump uses force in Syria and meets no domestic resistance, Americans will have allowed to President to usurp war powers at will and done nothing except shrug in response.

This is part of a larger, disturbing trend in the rise of our tolerance, and for many Americans desire, for authoritarian rule. It’s why the Constitution was written in the first place. The President fights wars, but Congress declares war. When the President attacks Assad, he runs the very real risk of starting a new war. That war would involve the Syrian government, but also would likely include fighting against Russian and Iranian forces.

This is obviously a disaster, and one the Constitution wasn’t prepared for. Even if it’s legal for the President to order the strike, which I will argue it is not, such a strike reveals a constitutional loophole: The President can bait war without declaring it.

But We’re Already at War in Syria

First, quick background on why we’re able to deploy troops to Syria in the first place.

The legal justification for the U.S. military presence in Syria is based on a seventeen-year-old Congressional resolution called the Authorization for Use of Military Force (AUMF), which President George W. Bush signed into law in the wake of the September 11 attacks. In short, Congress gave the President nearly unlimited freedom to use all “necessary and appropriate force” against people the President believes “planned, authorized, committed or aided” the September 11th attacks. More importantly, the authorization also gives the President the right to use forces against other organizations and countries who harbored those terrorists.

In other words, Congress, which the Constitution assigned the right to declare war, recused itself from the War on Terror.

Here’s the relevant text:

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The AUMF essentially gives the President license to kill al Qaeda anywhere. It’s also a license to attack any government that supports al Qaeda. But why is this relevant to Syria?

It’s a stretch.

Since 2001, the AUMF has been the basis for executive-ordered U.S. military action in Afghanistan, Iraq, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Somalia, and the Philippines. The Obama administration also used the AUMF to justify airstrikes against the Islamic State and other terrorist groups in Syria, arguing that the Islamic State had at one point been an al Qaeda affiliate in Iraq, and so by extension was connected to the 9/11 attacks and covered by the AUMF. But the two groups are no longer aligned, and for the last few years they’ve actually been at war with each other in Syria, of all places. This seems to mark a fundamental divergence in targets, and begs for a rewrite of the AUMF. That’s irrelevant now, obviously, since the AUMF is in place, so let’s look at whether it justifies the use of force against the Assad regime.

What’s Trump’s Argument?

The Trump administration is using the AUMF to justify the continued presence of U.S. forces in Syria. Today there are 2000 U.S. troops officially in Syria, but we don’t count the soldiers in the country on special or secret missions. But even though our presence in Syria might be justified as a check on international terrorist groups, an attack on Assad is a separate issue. The AUMF doesn’t authorize military strikes on a sovereign government if that government isn’t harboring or supporting people affiliated with al Qaeda. The Assad government is actively fighting the Islamic State.

There’s an obvious precedent I’ve ignored until now: Almost exactly one year ago Trump ordered a missile strike on a Syrian air force base in response to a chemical attack on civilians. But just because we’ve done it before doesn’t mean it’s legal.

There’s no rational claim to be made for self-defense, no authorization of the United Nations Security Council, and no multi-lateral coalition like NATO (which Obama leaned on to justify his action in Libya). The unilateral strike punished Assad, and it didn’t prevent an imminent massacre, which was part of the weak justification for NATO’s 1999 military action in Kosovo. Importantly, NATO justified that use of force as “legitimate,” but didn’t try to justify the intervention as “lawful.”

And just this February the Trump administration itself acknowledged the legal limits on attacking the Syrian government itself. Mary Waters, the assistant secretary of state for legislative affairs, wrote in a letter that “the United States does not seek to fight the government of Syria or Iran or Iranian-supported groups in Iraq or Syria. However, the United States will not hesitate to use necessary and proportionate force to defend U.S., coalition, or partner forces engaged in operations to defeat ISIS and degrade al Qaeda.”

This seems to lay the groundwork for a legal rationale for future attacks against the Syrian government. That rationale, however, hinges on the necessary defense of the U.S. and allied forces. It’s true we’ve helped carry out attacks on pro-Syrian forces in the past, but that use of force was in immediate response to direct military threats to those forces. Assad didn’t attack us or our allies here: He attacked civilians.

But let’s go back to last year’s missile attack. That strike was the first time the U.S. specifically targeted Syrian government forces. Trump’s core argument was that the attack was in the “vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” Though Trump makes a compelling humanitarian argument, the legality is gray. It’s a lot like NATO’s argument for going into Kosovo: legit, but not lawful.

But there are two types of law here: International and domestic. Let’s see how this stacks up to both.

Would An Attack Meet The Conditions of International Law?

This is a pretty solid “no,” but it comes with a caveat: Will we strike on our own, or with the help of a number of coalition forces? A unilateral strike would be certainly illegal, but reports have recently surfaced that we’re coordinating our response with France and Britain. A coordinated strike is much smarter: It won’t draw international condemnation, and it would likely get the blessing of most countries in the U.N. Security Council, Russia being the obvious holdout there. But if the strike were launched without official U.N. approval, which seems more and more to be the case, it would still test international law. In other words it would be legitimate, but not lawful. More on that in a moment, though.

The United Nations Charter says there are two scenarios in which a nation can use military force in another country without that country’s consent: With the permission of the U.N. Security Council, or with a legitimate self-defense claim. The strike in Syria meets neither condition. The U.N. didn’t sanction it, and it wasn’t in response to an attack on or direct threat to U.S. forces or interests.

And, as the New York Times pointed out last year, the chemical weapons treaty doesn’t sanction attacks as punishment for those who violate the treaty. Remember that Trump cited last year’s attacks as punishment for the use of chemical weapons. Such an attack doesn’t meet the terms of the treaty, which is meaningful because the Syrian government is party to that treaty.

But let’s also note that on Monday Trump said, several times, this is a “humanity” issue. And yes, of course, Assad must be punished for the heinous attack, which is just one in a string of humanitarian atrocities. But though it might seem I’m making a callous technocratic argument here, the law is important, and is in place for a reason. And in fact, the United States has never argued that military intervention on humanitarian grounds is legal without U.N. authorization. We theoretically could float that argument, but we haven’t because the consequences of that precedent could be grave. Any country could then take up the same argument to bypass international law, framing it within its own subjective understanding of what “humanitarian” means.

That said, as pointed out recently in Just Security, this moment gives the United Nations an opportunity to narrowly define what constitutes a “humanitarian” military intervention: A government’s use of chemical or biological weapons on its own citizens. This definition would require only the objective determination of whether such an attack happened, not the subjective measure of whether a government’s behavior qualifies as inhumane.

This provision seems absolutely necessary, and ought to be taken up by the United Nations. That said, no single country should ever be allowed to act unilaterally on what it deems appropriate or moral. You can imagine where that might lead.

But what if we need to respond to a regional threat unilaterally? Or what if Congress decides to declare a just war unilaterally? What if we have legit reasons for violating that international treaty? That leads us to the next and more problematic question…

Would An Attack Violate The Constitution?

First of all, Congress has been pretty permissive of ever-expanding executive war powers. This doesn’t mean it should be, however, and it doesn’t mean any such actions are constitutional. That is a legitimate question, and as I mentioned at the top, it’s getting more and more vital as our nation, and others globally, cede more ground to political leaders with autocratic tendencies.

The Constitution splits war powers between Congress (declares war) and the President (wages war). But recently the distinction has become gray.

As pointed out in Just Security, the president’s obligation under Article II isn’t only to international law, but also to treaties to which the U.S. is bound. Those treaties are the “supreme Law” of the land under the Constitution’s Article VI, which makes them “domestic law.” And though the president under Article II “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,” that’s only “provided two thirds of the Senators present concur.” If the president breaks the terms of an international treaty without Congressional consent, he’s violating the Constitution.

But as pointed out in the above section, the Constitution doesn’t stop the United States from breaking treaties. Congress has breached treaties before, although rarely. But such breaches have consequences: The U.S. would have violated international law and become subject to sanctions and other punishment, as well as to diplomatic isolation and frayed international relations. Sometimes, though, that might be worth it in the national interest.

But you can throw all that out here: Congress hasn’t authorized an attack on Syria.

There’s a Constitutional conflict here, which the courts haven’t addressed, and that conflict hinges on whether Congress needs to give its approval in all instances.

Maybe?

For example, in 1994 the Clinton administration floated an argument to justify military action in Haiti as not being an act of war, because they said it wasn’t a war in the “constitutional sense.” And the so-called War on Terror is an excellent example: The internationally sprawling game of whack-a-mole certainly isn’t how the framers envisioned war in the “constitutional sense.” But again, that’s the reason we have the AUMF in the first place: We needed to make an extra-constitutional exception.

Look, whenever the U.S. anticipated the risk of a war in the constitutional sense, the president has gone to Congress. This is true in Vietnam, Gulf Wars I & II, and the AUMF, but the Korean War is an exception. It could be argued, though, that Truman acted against China’s invasion in the immediate national interest: Securing East Asia, which was recovering its stability after World War II. And seeking Congressional approval has been a judgment call anyway.

But in that light, a great and recent parallel is when President Obama weighed attacking Syria for a chemical attack on its citizens, which he had violated his “red line.” Obama, like Bush before him, decided that in this instance he should go to Congress instead of acting on his own. In this view it wasn’t Obama who failed to attack, it was Congress.

Before you Trumpies attack Obama for making that decision at that time:

Of course, a limited unilateral military action against the Syrian government, such as a pinprick missile strike, might not seem severe enough to qualify as war in the constitutional sense. But pull back for a second: The United States would have entered a raging war that even the founding fathers would see is clearly a war “in the constitutional sense.” Additionally, given the larger context of possible actions against Russia and Iran, and the President’s own explicitly stated recognition of that possibility—”If it’s Russia, if it’s Syria, if it’s Iran, if it’s all of them together, we’ll figure it out… Everybody’s gonna pay a price. [Putin] will and everybody will”—we’d not just be jumping into a conventional war, we’d be baiting an even bigger war.

Okay, but what about the War Powers Act? The WPA says the President can exercise military force with some provisions, such as notifying Congress within 48 hours and limiting troops to 60 days in-country without Congressional action. But that power isn’t exactly blanket (though that claim itself is debatable). The WPA says the president can order the use of force only under three conditions: Congressional declaration of war; “statutory authorization” (such as the AUMF); or “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Weirdly, and frighteningly, no presidential administration has agreed the WPA is constitutional, and that’s because of the expandability and subjectivity inherent that last point. What’s an “emergency”? What exactly are “territories” or “possessions”? And in Syria, where we’re fighting a proxy war that includes U.S. soldiers embedded with various murky rebel groups, how far does the definition of our armed forces extend?

We’ve too quickly, and predictably, forgotten the brutal lessons of the early twentieth century: This is precisely why the international community, in an effort led by the United States of America, banned unilateral military action to begin with. It baits more war.

It is therefore not not not, as Trump put it last year, “in the vital national security interests of the United States” to attack the Syrian government. Such an attack runs the very real risk of creating more instability than it would supposedly prevent, considering the attack was narrow and directed at civilians, not our military or associated forces. And that is the single biggest reason we need to recognize Trump’s threats as executive overreach: The President, acting alone, can start a war that’s very real and very devastating.

This leads to one last question, which should seem obvious but isn’t asked: Why would President Trump, in this instance as well as in 2017, feel the need to bypass Congress? Assad’s attack poses no immediate threat to U.S. interests by any stretch, and we can all agree that, sick as it is, it’s not a national security emergency and doesn’t necessitate an immediate response. It’s unclear how the president can rationalize an order to strike as anything other than flaunting Congress. It also suggests Congress wouldn’t approve of an attack, but I’d argue that, while some might dissent, they most certainly would. What Assad did was horrible and should be punished.

I’d also argue it’s worth violating the U.N. treaty, because the U.N. wouldn’t likely sanction the United States for the attack. (Despite Russia’s guaranteed objections.) The U.N. would, I believe, instead use this opportunity to define a qualitative exception to the humanitarian intervention: When a government uses chemical or biological weapons on its own people.

But this raises another problem, this one ethical: How is a chemical attack any different from dropping barrel bombs on civilians, or setting their houses on fire, or good old fashioned shootups? Trump seems to have made this distinction in Trumpian fashion: He saw horrific pictures of dead kids, and it struck him in a powerful way. Somehow it was different.

But I wonder if anyone has shown the president some of these other horrifying images from the Syrian war, which have nothing to do with chemical weapons. Those innocent Syrian children, the ones Mr. Trump literally said he would look in the face and tell them they can’t come into the country he leads, have been getting their bodies blown apart for years. Want to go after another murderous dictator? Here are a few from Sudan. Hell, Getty has an entire gallery of stock images filed under “Sudan Famine Boy.”

In other words, what makes chemical attacks any different from barrel bombs, systemic starvation (also a horror Assad is visiting on his own citizens)? Why are some massacres important enough to merit a response, but others aren’t? This gets at the heart of the Syria problem, which no one believes a U.S. attack will solve. It could only make things worse. Whether you blame presidents for overreach, or Congress for negating its duty, or both, and no matter your position on our retaliation against Assad, we run the very real risk of President Trump starting a massive war that no one will win.