It has become normal over the past 15 years for the morning news to report that the president has bombed an obscure terror group in a far-flung region of the world. These attacks take place without any public debate or a vote in Congress — despite the fact that the Constitution gives Congress alone the power “to declare war.”
President Bush and President Obama argued, with little pushback, that they could target a wide array of terror groups, thanks to the resolution Congress passed in the wake of 9/11 that allows the president to use “necessary and appropriate force” against those who “planned, authorized, committed, or aided” the al Qaeda terror attacks.
The 2001 resolution has since been used to justify bombing seven countries, deploying troops from Cuba to the Philippines, and conducting wars against groups with loose or nonexistent ties to al Qaeda.
But almost all experts agree that it cannot be utilized as the legal basis for Trump’s Thursday-night cruise missile attack on Syria. While Assad is a butcher and brutal dictator, he has no connection to the 9/11 attacks, and in fact his forces are fighting al Qaeda’s largest affiliate in Syria.
Jack Goldsmith, a Harvard Law School professor and head of the Justice Department’s Office of Legal Counsel during the Bush administration, sardonically tweeted that whatever the legal basis for the strikes is, it “exceeds all prior precedents under domestic and international law.”
Goldsmith’s perspective was the same in 2013 when the Obama administration was considering bombing Syria’s government for similar reasons. The available legal justifications, Goldsmith wrote, were so extreme that they would provide “no limit at all on the president’s ability to use significant military force unilaterally.” (Obama eventually sought congressional approval, while simultaneously insisting that he didn’t really need it.)
Louis Fisher, a scholar in residence at the Constitution Project, reacted similarly to Trump’s strike, saying that “President Trump has no constitutional authority to unilaterally commit the nation to war against Syria.”
Hina Shamsi, a top national security lawyer for the ACLU, tweeted that Trump’s strike has “no legit[imate] domestic or international law basis.” Fionnuala Ni Aolain, a professor of human rights law at the University of Minnesota Law School, wrote that the attack was “a slide into self-justificatory unilateralism by the United States [that] should not be celebrated nor validated.”
One dissenter among these legal voices is Harold Koh, a Yale Law School professor and former Obama administration lawyer. In 2011, after Congress voted not to authorize Obama’s intervention in Libya, Koh wrote a memo attempting to make the case that the U.S. bombing campaign was nonetheless congruent with the War Powers Resolution, a 1973 congressional attempt “to fulfill the intent of the framers” by keeping the power of introducing the armed forces “in hostilities” in the hands of the legislative branch.
Koh creatively argued that U.S. actions didn’t rise to the level of “hostilities,” largely because Obama was only bombing the country, and the Libyan military was unable to shoot down U.S. planes.
In a later paper for the Houston Law Review, Koh wrote that under his own criteria, he “would guess that few humanitarian crises will rise to the level of sustained ‘hostilities,’” and hence would not need congressional approval.
The White House and the Pentagon have yet to attempt to make a formal case that the strikes were legal. At Mar-a-Lago, Trump told reporters that “it is in the vital national security interest of the Untied States to prevent and deter the spread and use of deadly chemical weapons.” A Pentagon press release echoed his comments, saying “the use of chemical weapons against innocent people will not be tolerated.”
In the past, the U.S. has made self-defense a justification for its strikes. But both statements suggest the aim of the strike was to punish Assad, not to defend the United States.
Moreover, the Trump administration is indicating they may launch further attacks against Assad without waiting for congressional approval. At a UN Security Council meeting Wednesday, U.S. Ambassador Nikki Haley said the U.S. is “prepared to do more” in Syria. Secretary of State Rex Tillerson said Thursday that “steps are underway” to form a coalition of nations that would look to remove Assad from power.
The administration also appears to be ignoring all issues of international law. Days before the strike, Haley touted the fact the U.S. would not seek Security Council approval. “When the United Nations consistently fails in its duty to act collectively,” she told the council on Wednesday, “there are times in the life of states that we are compelled to take our own action.”