Outside the Beltway

Trump Administration Claims It Needs No Legal Authorization To Keep Troops In Syria

Continuing a long-standard tradition, the Trump Administration claims it doesn't need to get legal authorization to keep American troops in Syria.

Doug Mataconis · Thursday, February 22, 2018 · 10 comments

Last month, the Trump Administration announced that it was preparing to keep American ground troops in Syria beyond the apparent routing of ISIS inside the country and provided no timeline for when those troops might be withdrawn or the circumstances under which a withdrawal would be considered. As I noted at the time, the legal basis for any such post-ISIS mission was difficult to see, meaning that it is apparent that Congress would need to act to authorize any extended mission inside Syria. Instead of going that route, though, the Trump Administration is claiming it needs no further legal authorization:

WASHINGTON — The Trump administration has decided that it needs no new legal authority from Congress to indefinitely keep American military forces deployed in Syria and Iraq, even in territory that has been cleared of Islamic State fighters, according to Pentagon and State Department officials.

In a pair of letters, the officials illuminated the Trump administration’s planning for an open-ended mission of forces in Syria beyond the Islamic State fight. Secretary of State Rex W. Tillerson foreshadowed the plan in a speech last month, saying that troops will stay in Syria to curb Iran and prevent the Syrian government from reconquering rebel-held areas.

Though Mr. Tillerson also cited a need to mop up the remnants of the Islamic State and keep from leaving a vacuum in which the group could regenerate, other administration officials put far greater emphasis on the extremists. In the letters, they said that the continued potential threat from the Islamic State provided a legal rationale for the Trump administration to keep American troops deployed there indefinitely.

“Just as when we previously removed U.S. forces prematurely, the group will look to exploit any abatement in pressure to regenerate capabilities and reestablish local control of territory,” wrote David Trachtenberg, the deputy undersecretary of defense for policy.

About 2,000 American troops are in Syria, where nearly all the territory once held by the Islamic State has now been liberated. Mr. Tillerson deemed the group “substantially, but not completely defeated,” warning that the insurgents remained a threat.

Mr. Trachtenberg wrote the letter to Senator Tim Kaine, Democrat of Virginia, who had asked the Trump administration to explain its understanding of its authority to stay on in Syria. The State Department sent him a similar letter, which also argued that international law provided a basis for American forces to remain in Syria — despite the lack of consent from the Syrian government — to protect Iraq and the United States from terrorists.

And both letters said American troops may strike at Syrian government or Iranian forces deemed to threaten Americans or Syrian rebel groups that are assisting the United States in fighting the Islamic State, also known as ISIS.

“The United States does not seek to fight the government of Syria or Iran or Iranian-supported groups in Iraq or Syria,” wrote Mary K. Waters, the assistant secretary of state for legislative affairs. “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.”

American troops carried out strikes against forces loyal to President Bashar Assad of Syria several times in 2017 in the name of defending American-supported rebel groups.

In a statement, Mr. Kaine said the executive branch was stretching its interpretation of its war authority too far. He called on the Trump administration to seek new authorization for any continued, long-term mission in Syria and Iraq — especially “to strike pro-Assad forces in areas devoid of ISIS to protect our Syrian partners who seek Assad’s overthrow.”

He also criticized the basis on which the administration ordered strikes on a Syrian government air base last April as punishment for using chemical weapons. At the time, President Trump claimed powers as commander-in-chief to issue the strikes rather than on any theory of congressional authorization.

The senator accused Mr. Trump of “acting like a king by unilaterally starting a war.”

The executive branch’s core legal theory that it is authorized by Congress to fight the Islamic State in both Iraq and Syria was first put forward by the Obama administration in 2014, when ISIS swept out of Syria and began rapidly conquering portions of Iraq. The United States started bombing Islamic State forces to curb their advances.

Under both Mr. Obama and Mr. Trump, the executive branch has argued that the war against the Islamic State is covered by a 2001 law authorizing the use of military force against the perpetrators of the Sept. 11 attacks and a 2002 law authorizing the invasion of Iraq.

That theory is disputed. While ISIS grew out of an offshoot of Al Qaeda, the two groups by 2014 had split and became warring rivals. Before the rise of ISIS, the Obama administration had deemed the Iraq war over and largely withdrawn American troops.

The Trump Administration’s position, of course, should be a familiar one because it is basically the same as the one that the Obama Administration advanced to justify its decision to send American advisers and troops to Syria in the past when the pushback against ISIS was still in its infancy. Basically, both Administrations are relying on interpretations of resolutions authorized by Congress more than a decade ago to authorize something that was clearly not contemplated by Congress at the time that either resolution was passed.  In what was to say the least a very generous legal interpretation, the Obama Administration argued that it was authorized to pursue the fight against ISIS by virtue 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. This justification relied on the rather vague and tenuous 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 Obama Administration argued that the fight against ISIS was 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 you accept those arguments with respect to the action against ISIS, though, there is simply no way to interpret either document to authorize a continued military presence in Syria that is separate an apart from the fight against ISIS. Given that, it seems clear that such a presence would be illegal and unconstitutional absent Congressional authorization. Unfortunately, it seems as though nobody in Congress cares about this issue outside of Senators like Tim Kaine and Rand Paul, and that the majority of Congress is content to let the President committed the United States to yet another war without a foreseeable end, or a winnable objective.

The Trump Administration’s determination that it can unilaterally commit the United States to a long-term troop presence in Syria without having to seek Congressional authorization is hardly a new or shocking development in American history. Since at least the end of the Second World War and arguably well before then, Congress has slowly ceded whatever authority it had over the conduct of American foreign policy and the power to commit military forces to unlimited missions. As a result, Presidents of both parties have been more than willing to step into the gap and act however they see fit while giving mere lip service to the provisions of the Constitution that give Congress the power to declare war and the power to fund, and presumably defund, military missions and operations.  The Korean War, for example, was justified by claiming it was conducted under the authority of the United Nations, and there was no real effort by either the Truman or Eisenhower Administrations to seek a formal declaration of war from Congress. The same can be said of the Vietnam War, which was preceded by a gradual increase in the number of American advisers and troops in South Vietnam to the point where the United States had become so committed that backing out was no longer a viable option,

Congress did pushback to some degree after the Vietnam War with the  War Powers Act, which purports to place limits on the President’s ability to unilaterally commit troops. However, that law has been largely ignored by subsequent Presidents, and Federal Courts have largely declined to accept cases brought by Members of Congress in response to the deployment of American troops in places such as Lebanon or the commitment of American forces to conflicts such as the civil wars in what used to be Yugoslavia in the 1990s. This pattern has become even more apparent in the wake of the September 11th terrorist attacks. In the sixteen-and-a-half years that have followed, three successive Presidents have used the fig leaf of the October 2001 AUMF 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 in other parts of Asia as well as in Africa. 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. As Matthew Yglesias said 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, but it occurred long after the time that the mission was launched and was presented to Congress as something of a fait accompli. 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. The fact that we’ve ended up where we are now, while distressing, is really just the inevitable result of more than two centuries of gradual Congressional abdication combined with an Executive Branch that was all too eager to assume new powers unto itself.

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.

Here is the correspondence between Senator Tim Kaine and Defense Secretary Mattis and Secretary of State Tillerson:

Kaine War Powers Letters by Doug Mataconis on Scribd