Outside the Beltway

Congress Needs To Act In Response To Trump’s Illegal War In Syria

With the Administration set to commit the United States to a forever war in Syria, it's time for Congress to act.

Doug Mataconis · Wednesday, January 24, 2018 · 19 comments

As I noted late last week, the Trump Administration is apparently planning on keeping American troops in Syria for the indefinite future even after ISIS is defeated. Today in The New York Times New Jersey Senator Cory Booker and Yale Law Professor Oona Hathaway call out the Administration for this unilateral change in policy and call on Congress to act:

[T}he president doesn’t have the power to unilaterally make the decision to commit American troops to stop Mr. Assad by force. He needs to make his case to Congress and the American people, as well as the international community. Inserting American troops into this situation on his own is not just bad policy, it is illegal under both the Constitution and international law.

Start with the Constitution. The founders created a system in which the power to declare war rests with Congress, not the president. The 1973 War Powers Resolution requires the president to notify Congress within 48 hours of introducing armed forces into hostilities in the absence of a declaration of war. The president must then terminate the use of armed forces within 60 days (with 30 days for withdrawal) unless Congress has declared war or otherwise authorized the use of military force.

The Trump foreign policy team has made clear that it does not think it must abide by any of these rules, and the new commitment announced by Secretary Tillerson shows that it is ready to break them. Clearly and lamentably, the president is prepared to flout constitutional limits on his authority to commit our troops on his own.

The Trump administration might argue that the troops are already in Syria, so keeping them there isn’t “introducing them.” But that would make a mockery of the statute. The Obama administration explained in 2015 that the authorizations for the use of military force that Congress agreed to in 2001 and 2002 provided the legal basis for operations against the Islamic State because they were broadly aimed at terrorism as a threat. That justification was tenuous, but surely nothing in the statutes could plausibly be said to extend to an American military presence in Syria after the Islamic State has been credibly debilitated.

(…)

If the constitutional violations weren’t troubling enough, the announced plan would also put the United States in direct violation of international law. The American operations against the Islamic State and Qaeda elements in Syria were made in the defense of the United States and its allies, particularly Iraq. This was the basis for the American explanation to the United Nations of its military operations in Syria, provided by Ambassador Samantha Power on Sept. 23, 2014. That explanation was reiterated in a letter to Congress from Secretary Tillerson last fall.

Some critics have said this use of the self-defense exception is overbroad. But even if that argument was plausible before, the indefinite commitment of United States troops to hold territory in Syria cannot be defended on similar grounds.

Stabilizing the territory taken from the Islamic State is undoubtedly essential to ensuring terrorist threats do not re-emerge, and that must be a priority for the United States. But as the threat from the Islamic State diminishes and the Syrian conflict returns to a battle over whether Mr. Assad will regain full control over land held by rebels who are divided among themselves, it is no longer possible to argue that the mission is one of self-defense. If the president were to order American troops to hold Syrian territory in those circumstances, he would be ordering them to act in clear violation of the United Nations Charter.

In so clearly breaking international law, we would not just put our troops in harm’s way; we would also be licensing malevolent leaders the world over to follow in our footsteps. And we would be doing so when the world’s approval of American leadership has dropped to a new low — down to 30 percent from 48 percent just a year earlier. This course of action would significantly undermine America’s hard-earned global leadership as a champion of law-bound international action, perhaps irreparably.

(…)

Congress must tell the president he cannot engage our troops in an illegal war in Syria. To allow this blatantly illegal action would spell the end of congressional authority over war. And it would offer incontrovertible evidence that the United States under President Trump is no longer a champion of the world order, but is ready and willing to tear it down.

Daniel Larison comments:

Booker and Hathaway’s op-ed would have been much stronger if they had emphasized that the U.S. military presence in Syria has been illegal from the start. Whatever one wants to say about the war on ISIS inside Iraq, the U.S. had no right to expand it into Syria. The U.S. had no right to put troops inside Syria without the permission of their government, and it still doesn’t. The U.S. has been trampling on international law in Syria for over three years. The difference now is that Trump is proposing to continue doing so without having the fig leaf of counter-terrorism to cover it up.

(…)

The danger in allowing Trump’s illegal war in Syria to go ahead uncontested is not just that it will let an incompetent president commit the U.S. to an open-ended mission in a devastated and war-torn country without authorization or debate, but that it will mean the president can ensnare the U.S. in wars of his choosing without any involvement from Congress. You may not care about what Trump is doing in Syria today, but you will care about what he or some other president chooses to do with this usurped authority elsewhere.

The Trump Administration’s apparently unilateral decision to keep American troops in Syria beyond the time that there would be any conceivable legal justification for them to say there is hardly a new development, of course. For decades now, Congress has gradually ceded any authority that it has over the conduct and review of American foreign policy and American Presidents of both parties have been more than willing to step into the gap and act as they see fit while giving lip service at best to those parts of the Constitution that give Congress the sole power to declare war and the power to approve financing for actual military operations. Much of this can be traced to the years after the Second World War and the Cold War during which it Presidents assumed increasingly broad discretion over how foreign policy was conducted and even the introduction of American troops into armed conflict. The Korean War, for example, was justified largely as an exercise conducted under the authority of the United Nations, and there was no real effort by the White House at the time to seek a formal declaration of war from Congress. The same was true of the Vietnam War, which was preceded by a gradual buildup of American advisors and troops in South Vietnam to the point where we became so committed that backing out was no longer an option.

After the end of the Vietnam War, there was some pushback from Congress in the form of the War Powers Act, which purports to place limitations on the President’s ability to unilaterally commit troops. However, that law has been largely ignored by subsequent Presidents. This has been especially true in the years since the September 11th attacks, during which three successive Presidents have used the fig leaf of the October 2001 Authorization For Use Of Military Force and the 2002 AUMF authorizing the Iraq War to justify intervention well beyond what was originally contemplated. The result now is that the United States finds it fighting a “War On Terror” across not just the entire Middle East, but on two continents. Presently, there are American forces on the ground, and American drones in the air targeting alleged terror targets, in nations spanning an area from Affghanistan, Iraq, Syria, and Yemen to African nations such as Djibouti on the Horn of Africa and Niger in western Africa. With ISIS and al Qaeda now apparently engaged in exploiting the chaos that ongoing military operations have created in places such as Yemen, Syria, and Libya, those commitments are only likely to expand further and the likelihood is that American troops will increasingly come to find themselves in conflicts in nations most Americans have never heard of for reasons that our leaders don’t even bother to explain.

This isn’t entirely the fault of Presidents, of course. It has been accompanied by Congressional abdication over one of the most important of all policy areas. Matthew Yglesias said it well in a blog post written nearly seven years ago:

The one observation I would make about this, is that while the trend toward undeclared military incursions is often described as a kind of presidential “power grab” it’s much more accurately described as a congressional abdication of responsibility. Even if you completely leave the declaration of war business aside, congress’ control over the purse strings still gives a determined congressional majority ample latitude to restrain presidential foreign policy. The main reason congress tends, in practice, not to use this authority is that congress rarely wants to. Congressional Democrats didn’t block the “surge” in Iraq, congressional Republicans didn’t block the air war in Kosovo, etc. And for congress, it’s quite convenient to be able to duck these issues. Handling Libya this way means that those members of congress who want to go on cable and complain about the president’s conduct are free to do so, but those who don’t want to talk about Libya can say nothing or stay vague. Nobody’s forced to take a vote that may look bad in retrospect, and nobody in congress needs to take responsibility for the success or failure of the mission. If things work out well in Libya, John McCain will say he presciently urged the White House to act. If things work out poorly in Libya, McCain will say he consistently criticized the White House’s fecklessness. Nobody needs to face a binary “I endorse what Obama’s doing / I oppose what Obama’s doing” choice.

The other important point, of course, is that what the Constitution says about war powers at this point is largely irrelevant, what matters is nearly 200 years of tradition and history, during which Presidential authority to engage in military action without getting direct Congressional approval has gradually, but incessantly, expanded. It started in 1801 when Thomas Jefferson essentially declared war on the Barbary States(located, ironically enough, in what we now call Libya) for their piracy against American military and merchant vessels. In that instance, Jefferson did inform Congress of his actions, and they did issue what some might call an authorization for the use of force against the pirates. Later, in the 20th Century, Presidents sent forces of various sizes of Latin American nations such as Nicaragua to put down rebellions or maintain control. Then, once the Cold War started, the instances of unilateral action by the President increased exponentially, starting with the Korean War, a three-year-long engagement that was never directly authorized by the United States Congress. And, of course, its worth noting that the bloodiest conflict in American history was an undeclared war.

There are plenty of reasons to be concerned about the fact that we’ve strayed so far from the intended separation of powers when it comes to the power to make war. However, we are not just talking about a situation where President’s have grabbed power. This has been a willful abdication by a Congress that doesn’t want to get its hands dirty in the foreign policy arena and doesn’t want to take responsibility for the decisions that they should be making in that area. They ought to be ashamed of themselves.