Outside the Beltway

Trump Administration Argues It Didn’t Need Congressional Authorization To Attack Syria

Echoing the Obama Administration, the Trump Administration is arguing that it did not need Congressional authorization to attack Syria earlier this year.

Doug Mataconis · Monday, June 4, 2018 · 11 comments

The Trump Administration is arguing that the President had the authority to attack Syria without seeking authorization from Congress:

WASHINGTON — More than a year after President Trump first ordered the American military to bomb Syrian government forces as punishment for using chemical weapons, the Justice Department has claimed that he wields broad constitutional power to order such limited acts of warfare without congressional approval.

In a 22-page legal opinion disclosed late Thursday, the Justice Department’s Office of Legal Counsel declared that Mr. Trump could lawfully and unilaterally direct airstrikes targeting Syria installations because he determined that doing so would be in the national interest, and because the attack would carry little risk of escalation.

“Given the absence of ground troops, the limited mission and time frame and the efforts to avoid escalation, the anticipated nature, scope and duration of these airstrikes did not rise to the level of a ‘war’ for constitutional purposes,” wrote Steven A. Engel, the assistant attorney general for the Office of Legal Counsel.

That claim was rejected by Senator Tim Kaine, Democrat of Virginia, who has regularly argued that Congress is failing to live up to its constitutional role in making decisions about war and peace. He called the argument that firing missiles at a foreign nation was not “war” nonsense.

“Is there any doubt that America would view a foreign nation firing missiles at targets on American soil as an act of war?” Mr. Kaine said. “The ludicrous claim that this president can magically assert ‘national interest’ and redefine war to exclude missile attacks and thereby bypass Congress should alarm us all. This is further proof that Congress must finally take back its authority when it comes to war.”

Mr. Engel signed his memo on Thursday, but it said he had earlier orally given the same advice to Donald F. McGahn II, Mr. Trump’s White House counsel, before airstrikes on Syrian chemical weapons facilities in April 2018.

The memo does not say whether the Office of Legal Counsel was consulted in April 2017, the first time Mr. Trump attacked Syria for having used chemical weapons. After those strikes, the administration made no public rationale for what legal authority it had to carry out that attack.

Taken in conjunction with the position taken by the President’s lawyers with respect to the Russia investigation, this is an incredibly expansive and dangerous view of the nature of Executive Branch authority when it comes to foreign policy. Essentially, it means that the President has the legal and Constitutional authority to take actions that could involve the nation in a broader war without first seeking authorization from Congress. Unfortunately, it’s a position that isn’t unique to the Trump Administration.

With respect to military intervention in Syria, the Trump Administration is taking a position that is not essentially different from the one that was taken by the Obama Administration. It’s a position that depends on interpretations of the resolutions that were passed by Congress more than a decade and a half ago to authorize something that was clearly not within the contemplation of any of the members who voted on the measure, many of whom aren’t even in Congress anymore. Additionally, it’s a position that essentially requires one to concede that Congress is, or at least become, entirely irrelevant when it comes to the authorization of military action overseas.

In both cases, President Trump and his predecessor have argued that their actions were justified by what can only be called a very generous legal interpretation, of the Authorization for Use of Military Force that authorized the Afghan War aimed at al Qaeda and the AUMF that authorized the Iraq War. Both arguments rely on the argument that ISIS is in some sense an offshoot of al Qaeda in that it had originated as part of that organization in the wake of the invasion of Iraq and the toppling of Saddam Hussein’s regime. Due to this, the argument claims, the fight against ISIS is part of the so-called War On Terror that began in the wake of the September 11th attacks.

This argument relied on the argument that ISIS was in some sense an offshoot of al Qaeda in that it had originated as part of Al Qaeda in Iraq, which didn’t manifest itself until after the 2003 American invasion and the toppling of the regime of Saddam Hussein. Because of this, the argument goes, the fight against ISIS is part of the so-called “War On Terror” that began in October 2001. The Obama White House also took the position that the AUMF authorizing the Iraq War provided further legal justification for military action against ISIS due to the connections between ISIS and that war. Even if one accepted that argument, though, there is no way to credibly interpret either AUMF to authorize a continued military presence in Syria separate and apart from the fight against ISIS or an attack on Syrian government targets in retaliation for the use of chemical weapons. In the later case, while it is true that the use of such weapons is banned by treaties that stretch back to the end of World War One, none of those treaties can credibly be interpreted as authorizing unilateral military action, nor do they give the President the authority to act without authorization from Congress.

As I’ve discussed before, none of this is new. There is a long history of Congress appeasing the President and shirking its Constitutional duty when it comes to war powers and foreign policy. Since at least the end of the Second World War and arguably well before then, Congress has slowly ceded whatever authority it had over foreign policy and the power to commit military forces to unlimited missions to the Executive Branch. As a result it’s hardly surprising that Presidents of both parties have felt free to step into the gap and act in whatever manner they see fit while giving mere lip service to those parts of the Constitution that clearly vest Congress with the power to declare war and the authority to fund, and presumably defund, military missions and operations.  This was true with respect to the Korean War, the Vietnam War, and numerous other interventions around the world that have been done under Presidential authorization with either only pro forma consultation with Congress or no consultation at all.

This practice only accelerated in the wake of the September 11th attacks, which resulted in other vast expansions of Executive Branch authority such as the passage of the PATRIOT Act and the establishment of the Department of Homeland Security. In the nearly seventeen years since those attacks, three successive Presidents from both political parties have used the fig leaf of the 2001 AUMF and the 2002 Iraq War AUMF to justify intervention significantly beyond what was originally contemplated at the time. As a result, the United States now finds itself fighting a so-called “War On Terror” not just across the Middle East but also in other parts of Asia and, most recently, in parts of Africa where the United States clearly has no understanding of the political, ethnic, and tribal factions driving politics on that continent. As a result, 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. As Matthew Yglesias said in a blog post written 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.

n this particular case, the fig leaf that the Obama and Trump Administrations have relied upon to justify military action against the Assad regime is clearly an illusion. Even if you accept the argument that the original post-9/11 AUMF authorized action against ISIS and al Qaeda far beyond the borders of Afghanistan, there is simply nothing in the text of that AUMF, or the one that authorized the Iraq War, that can legitimately be said to justify attacking the government of Bashar Assad. Assad was not part of the attacks on the United States on September 11th, and his government played no role in maintaining Saddam Hussein’s grip on power. As a matter of law, therefore, any attack on Syria that is not authorized by Congress beforehand would clearly be illegal, contrary to international law, and unjustified. This means, of course, taht the legal position taken by the Trump Administration here is without merit, but unlikely to ever be significantly challenged by Congress. The result, inevitably, will be that this President, and those who follow him, will simply continue to act on their own regardless of what the law says.

Here’s the memorandum from the Office of Legal Counsel:

Trump Administration Memo On 2018 Attack On Syria by Doug Mataconis on Scribd