President Trump has been warning that missiles “will be coming” against Syria’s government, which he accused of killing civilians with chemical weapons in the final rebel-held town of Douma near Damascus, although it is not clear when. But some legal experts warn an attack would be illegal.
Several scholars say the Constitution doesn’t allow Trump to attack Syria’s military because it did not first attack the U.S. or its troops, which would allow Trump to act without congressional authorization for 60 days under the War Powers Resolution of 1973.
The Trump administration is refusing to release documents justifying an April 2017 airstrike on a Syrian airbase ordered under similar circumstances, denying a glimpse into the likely legal rationale if Trump does order an attack.
On the outer limits of scholarly thought, Trump has plenty of legal basis to bomb President Bashar Assad’s military. Former George W. Bush administration attorney John Yoo said Trump is on firm footing, even without new congressional permission or an attack on U.S. troops.
Yoo, a University of California at Berkeley law professor known for writing memos to justify the post-9/11 use of interrogation tactics that opponents call torture, said the White House can cite unrepealed war authorizations for bombing Assad.
A 2001 war authorization passed to justify military operations against the Taliban and al Qaeda can be used, Yoo said, even though Assad’s government is fighting al Qaeda’s former affiliate in Syria and the Islamic State group, which once was associated with the terror network.
“I think that statutory authorization comes from the [authorization for use of military force] passed after 9/11, which allows the use of force with regard to any group connected to the 9/11 attacks, which includes ISIS (which is an offshoot of al Qaida). Because ISIS is operating in Syria, the U.S. can use force in Syria,” Yoo said in an email.
An unrepealed 2002 war authorization allowing for the invasion of Iraq to topple Saddam Hussein also can justify an attack on Assad, Yoo said, because that legislation “allows the use of force to stabilize Iraq, which the use of force against Assad could advance.”
“But my constitutional view is that the president does not need these statutory authorizations because as commander-in-chief Trump can deploy the armed forces on his own. Congress does not have to create the military, nor does it need to fund its operations,” Yoo said.
Tufts University law professor Michael J. Glennon said Yoo’s views are incorrect about the aging war authorizations and the Constitution, which says Congress has the authority to declare war.
“It’s essentially the theory he argued in the torture memos, that the president under Article II of the Constitution as commander in chief can disregard virtually any limitations or prohibitions that Congress puts in place and has independent authority to act as a monarch. That’s not a widely accepted view of the president’s consitutional power,” Glennon said.
Glennon said an attack on Assad “would be unconstitutional unless it were undertaken in response to the direct and imminent threat of an armed attack on the United States or its forces or facilities located abroad,” a viewpoint articulated in a series of Twitter posts from Rep. Justin Amash, R-Mich., who argued the public often misunderstands the War Powers Resolution’s 60-day window as a blank check for short-term actions.
The 60 days of military action allowed under the War Powers Resolution only covers instances where there’s congressional authorization or “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” Amash tweeted, citing the law.
There’s significant support for the view, but there’s also acknowledgment that most recent presidents have unilaterally conducted military attacks.
“I find no grounds in the Constitution or the War Powers Resolution that would authorize unilateral presidential use of military force against another nation that has not attacked the United States,” said Louis Fisher, a Constitution Project scholar who formerly worked as senior specialist for separation of powers at the Library of Congress. “That fundamental principle has been regularly violated by presidents from Truman [in Korea] through Obama [in Libya].”
“The president’s use of force against Syria wouldn’t be very different than what other modern presidents have done,” said Columbia University law professor Matthew Waxman. “President Obama asserted that he had constitutional power to take this kind of action, too. No doubt some members of Congress will say that the president is overstepping constitutional bounds, but Congress essentially ceded a lot of control in this area long ago.”
George Washington University law professor Peter Raven-Hansen said “the reality is that the president gets away with it, unless Congress acts after the fact to punish by withholding money or even impeachment … and the more often he does, the stronger the argument that such uses of force have become customary law.”
Raven-Hansen believes that Trump administration lawyers would look to international legal obligations to authorize a punitive strike on Assad.
Trump attorneys “would argue that his constitutional duty ‘to take care that the laws be faithfully executed’ [under Article II of the Constitution] gives him authority to executive our international legal obligations,” he said. “These primarily are treaty obligations, as well as some customary international laws. He’d argue that they include treaties against chemical weapons and customary laws prohibiting crimes against humanity.”
Raven-Hansen said, however, that “I think that most legal scholars would argue that any such ‘take care’ duty falls short of the use of force, because the Declaration Clause and the War Powers Resolution trump any conceivable obligation to use force.”
About 2,000 U.S. troops already are in Syria, supporting Kurdish and Arab groups, under the Obama administration’s controversial legal justification for fighting the Islamic State without specific authorization. The Obama administration argued the 2001 war authorization against al Qaeda covered the Islamic State — even though it was at the time engaged in a global struggle with the legacy jihadi group and fighting in Syria against al Qaeda’s official affiliate.
The Obama administration’s legal justification for fighting the Islamic State inside Syria currently is being considered by the U.S. Court of Appeals for the D.C. Circuit, which held oral arguments in October In a case filed in 2016 by then-28-year-old Army Capt. Nathan Michael Smith, an intelligence analyst deployed to Kuwait to support the campaign.
Smith, who supported the anti-Islamic State campaign but said he was concerned it was illegal, satisfied a narrow theory for standing to sue that was put forward by Yale University law professor Bruce Ackerman. Standing derails most war-powers lawsuits, but Ackerman reasoned an active-duty member of the military might succeed where others, such as members of Congress, failed. Smith lost before a district court, with U.S. District Judge Colleen Kollar-Kotelly ruling he lacked standing, and writing Congress had implicitly endorsed the war effort by approving funds.
Whether courts are an appropriate venue for settling constitutional questions about war is a point of contention. Fighting Smith’s lawsuit, a Trump administration attorney told a panel of federal appeals judges last year that even a clearly illegal war could not be reviewed by a court.
Smith, now living in Germany and preparing to enter an MBA program, left the military but remains on inactive “ready reserve” status. He said “cowardly” members of Congress have allowed war-making decisions to be exercised by the president without a vote, making members of the military to violate their oaths to uphold the Constitution.
“My fear about exactly this sort of unilateral military action being allowed in the future was possibly a contributing factor in my lawsuit,” Smith said.
“I continue to be disgusted by the relative apathy the public seems to have for our complete abandonment of our constitutional traditions on war power, and what seems to be a total disinterest in holding their congressional representatives accountable to doing the job they swore to do in their oaths of office and actually taking a vote either for or against military action as the Constitution clearly prescribes,” he said.
The group Protect Democracy, which is suing in federal court for access to the Trump administration’s legal justification for bombing Assad’s military in April 2017, filed a brief Monday citing possible military action as bolstering its legal case for disclosure.
“We are waiting on the judge’s decision. It has been fully briefed,” said Soren Dayton, the group’s communications and policy director.
Defense Secretary Jim Mattis acknowledged in February that “we do not have evidence” that Assad’s troops actually used sarin gas against a rebel-held town in northern Syria last year, even though that was the reason Trump launched 59 Tomahawk missiles at a Syrian airbase.
