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.

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

FILED UNDER: Donald Trump, Law and the Courts, National Security, Politicians, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. legion says:

    and because the attack would carry little risk of escalation.

    Wat? The extreme likelihood of engaging Iranian or Russian (or both) air, ground, and anti-air assets during such an attack makes that statement infantile in its falseness and lack of connection to reality.

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  2. Andy says:

    And Congress, as per usual, will continue to abrogate its responsibility.

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  3. Daryl and his brother Darryl says:

    @legion:

    The extreme likelihood of engaging Iranian or Russian

    More likely Dennison had already cleared the attack with Putin.

    “Look, Putey-Poot, I need to do something to look tough…so get your stuff out of the way and we’ll lob a couple missiles…and it’ll be over. Easy-peasy.”

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  4. de stijl says:

    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.

    That’s the truth. That AUMF passed at all is horrible, that it is still in effect is monstrous.

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  5. al Ameda says:

    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.

    ‘not essentially different from … ” It seems to me that in 2013 Obama went to Congress to seek congressional authorization to launch missile strikes in Syria, and that all but a handful of Republicans declined to give him that authorization.

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  6. michael reynolds says:

    I’d be more upset but so far Trump’s ‘attacks’ have been toothless and irrelevant.

    But I’ll chime in with others on this being Congressional abdication. They’ve discovered that the very best way to get re-elected is to do nothing. So they’re going to go on doing nothing.

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  7. Daryl and his brother Darryl says:

    @al Ameda:

    It seems to me that in 2013 Obama went to Congress to seek congressional authorization to launch missile strikes in Syria, and that all but a handful of Republicans declined to give him that authorization.

    Including Turtle Face, who would later criticize Obama for not doing more on Syria.

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  8. @Daryl and his brother Darryl:

    and

    @al Ameda:

    It was more than just Republicans who were opposed to attacking Syria over crossing former President Obama’s ill-advised “red line.” Many Democrats also opposed it.

    Additionally, I’d note that the same President Obama went forward with the mission in Libya without seeking Congressional authorization. It was also the same President Obama who argued that it had the authority to send ground troops to Syria to advise and assist the Syrian rebels based on the 2001 and 2002 Authorizations For The Use Of Military Force and his Administration asserted that it did not need any further authorization for that deployment.

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  9. de stijl says:

    @Doug Mataconis:

    No one disputes that. His biggest wrong that he acknowledges.

    This isn’t gotcha nonsense. It is a very bad law that has existed for way too long.

    D or R controlled House and Senate, Presidents – all complicit.

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  10. James Joyner says:

    Presidents have, for decades, asserted the right to conduct limited strikes on their own authority. Since I’ve been paying attention, roughly Reagan forward, there have been more instances than I can list here: Grenada, Libya, Panama, Somalia, Bosnia, Kosovo, Haiti, Yemen, Libya (regime overthrown edition), Somalia (pirates edition), and Syria (multiple). So far as I can recall, none of those had Congressional authorization and only Yemen among those could reasonably have been derived from the GWOT AUMF.

    One of the few good things to come from the Trump presidency is to demonstrate the dangers of such an expansive view of Executive authority. It turns out that even really awful presidents get to use that power.

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  11. Tony W says:

    I have never understood the congress-critter who gets elected and then chooses to do nothing, simply so that they can be re-elected (to continue doing nothing).

    I’d much rather be a one-term house member or senator who took a stand and made a difference, than a 6-termer who spent my years in the Congress carefully working my way to the front of the chamber by doing whatever leadership asks.

    What is the point of power if you don’t use it? For people in those circles, there are much better jobs available.

    Most elected officials don’t get bold until they announce retirement (Paul Ryan notwithstanding). Imagine a world where Jeff Flake, et. al. shows a spine from the beginning.

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