Wednesday, April 26, 2017

Congress Demands Legal Justification for Trump's Syrian Missile Attack

by Nomad

Dear Mr. President

You might not have seen the joint press release from Congressman Adam Schiff and Senator Tim Kaine issued yesterday. It was in regards a letter they sent to the Trump administration concerning legal matters and the Syrian missile attack earlier this month.

An interesting letter it was, too.

Washington, DC Yesterday, Congressman Adam Schiff (D-CA), Ranking Member of the House Intelligence Committee, and Senator Tim Kaine (D-VA), a member of the Senate Armed Services and Senate Foreign Relations Committees, sent a letter to President Trump asking that he detail the legal basis for the strike against, which has yet to be provided to Congress and the American people.
Schiff and Kaine stated that a full understanding of the domestic and international legal basis for the strike is of great importance to Congress in exercising its constitutional responsibilities.

As the letter states, “By articulating a legal basis for military action, as well as laying out a strategic vision for such action, a president provides a justification for the use of the momentous power to commit American lives to a cause, but also an understanding of the limits of those powers.”
Both Schiff and Kaine believe that Bashar al-Assad must be held accountable for his atrocities and war crimes, but have argued that the missile strikes on the Syrian regime without congressional approval were unlawful.
The full text of the letter is below:

Dear Mr. President:

We write regarding the April 6 strike against the Shayrat military airbase in Syria. We share your horror at the chemical weapons attack on civilians carried out by the Syrian regime in Idlib province on April 4. This horrific act, in contravention of international law as well as human decency, is only the latest brutality visited upon the Syrian people by the Assad government, and its Russian and Iranian patrons.

It has now been over two weeks since you ordered the strike on the airfield, and your Administration has yet to put forward any detailed legal analysis or justification for that action under domestic and international law. 
While the Administration provided a notification to Congress, consistent with the requirements of the War Powers Resolution, that notice simply asserted that the strike was ordered, “Pursuant to my constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive.” The notification further informed Congress and the public that you might order, “Additional action, as necessary and appropriate, to further important national interests.”

These assertions of authority do not provide Congress with the information it needs to exercise our constitutional responsibilities. Nor do they provide comfort to a public that fears deeper involvement in a horrific civil war at a time when the U.S. troop presence in the region is already increasing. The legal justification for an attack on the Syrian government is not an afterthought, but rather a first order consideration, and something that is vital for the American people to understand at the outset.

The need for a fulsome explanation of your war-making power under these circumstances is all the more necessary as tensions rise in the Korean Peninsula, with the suggestion that a preemptive military strike or a retaliatory strike against North Korea are among the options "on the table." While the President has the authority to use force to defend our service members and allies from an imminent threat, a preemptive strike could easily spiral into a full-fledged war with a nuclear-armed adversary. It is precisely because the decision to go to war is such a momentous one for any nation that the Constitution provides Congress alone with the power to declare war.

President Obama took an expansive view of the President’s Article II authority and the scope of the 2001 AUMF. At times, we have been critical of his views, and the Congress for failing to exercise its constitutional duties to authorize and oversee the use of force. Indeed, when the Obama Administration considered launching military strikes against the Assad Regime in 2013, the President asserted independent authority to do so, even though he ultimately made the appropriate decision to seek Congressional approval. 

However, the Obama Administration, through the publications of analyses by the Office of Legal Counsel, in public speeches by senior administration officials, and statements by the President himself took care to provide the legal basis for his military actions, as well as the limits of those interpretations.

By articulating a legal basis for military action, as well as laying out a strategic vision for such action, a president provides a justification for the use of the momentous power to commit American lives to a cause, but also an understanding of the limits of those powers.

Accordingly, we ask that you provide a detailed analysis of the legal precedents and authorities supporting the action in Syria, and in particular an explanation of whether this action expands those precedents for action under Article II. We also ask that you instruct senior officials in the White House, Department of Defense, and Department of State to articulate the Administration’s legal rationales for military action on an ongoing basis to better inform the public and Congress. Thank you for your quick action on this request.


Adam B. Schiff                              
Member of Congress                      

Tim Kaine
U.S. Senator

In the National Interest

The letter speaks for itself. However, there is one more point to add. At a daily press conference, White House Press Secretary Sean Spicer was asked why the president had failed to obtain Congressional authorization or to even consult with key Congress members prior to the action. Spicer merely said that the president was not required to seek authorization "said that “when it’s in the national interest of the country the President has the full authority to act.”

Clearly, this reasoning- such as it is- comes with a major and fairly obvious problem. Who gets to decide what is in the national interest?
The president and the president alone?
The president should, at the very least, show to Congress how the missile strike sparked by an gas attack by a Syrian president upon his own people- was in the national interest of the United States.

Otherwise, say constitutional scholars, the unauthorized strike falls into a gray zone of legality. Despite the moral justification, Trump's action also was a breach of international law.

Louis Fisher, a scholar in residence at the Constitution Project, commented:
"President Trump has no constitutional authority to unilaterally commit the nation to war against Syria, which is the effect of launching cruise missiles against Syria."
As Fischer points out in a review of David J. Barron's book, Waging War: The Clash Between Presidents and Congress, t776 to lSlS
From 1789 to World War I[, Presidents who wanted to take the country from a state of peace to a state of war always came to Congress either for a formal declaration of war oor specific statutory authority. The pattern from the Korean War to the present is strikingly different. Presidents Harry Truman, BiIl Clinton, and Barack Obama took the country to war without seeking any congressional authorization. lnstead, they sought support from the UN Security Council or from NATO allies.

Barron concludes in his preface that "our past shows that constitutional crises have erupted in war only when presidents have struck out on their own and claimed an exclusive right to decide how war should be waged."
In fact, President Obama did seek congressional authorization when Assad first crossed the red line of using chemical weapons on his own people. Congress refused to grant that authority and the president respected that decision.

In Trump's case, the authority came neither from Congress nor from a UN mandate.

The Critical Trump

All of this wrangling is also more than a little ironic.
Back in 2013, Trump was fiercely critical of President Obama when he weighed the option of military strikes against President Assad.
We have been here before. When the US president faced the very same scenario- the use of chemical weapons on civilians.

Trump tweeted that Obama “must get Congressional approval,” and that it would be a “big mistake if he does not.”
It was the only time that Trump tweeted his opposition to any military involvement in the middle east.

Here are a few of his tweets. (Middle East Eye found 13 altogether.)
Now the shoe is on the other foot.

The Ticking Clock

There's another point worth mentioning. The War Powers Resolution of 1973 or the War Powers Act was supposed to legally curtail the president's power to commit the United States to an armed conflict without the consent of the U.S. Congress.

One of the requirements in The War Powers Resolution demands that the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without a Congressional authorization for use of military force (AUMF) or a declaration of war by the United States.

How many US troops are currently in Syria is not clear but there's no question that they are on Syrian soil. It is also unclear how long they have already been there. It is safe to assume they have been there longer than 60 days.

Earlier this month, after the missile launch, President Trump made an unusual and highly deceptive statement about the presence of US forces in Syria. He said that the US was "not going into Syria."

As ABC News reported, the reality is that the US has had a military presence in the country since early 2016. Officially, they are there in northern and eastern Syria to train and advise Kurdish and Arab rebel forces fighting ISIS.

One could argue this was a continuation of Obama's war. There's a problem with that. In early March, hundreds of more Marines arrived in Syria. Their mission was to provide artillery support to U.S.-backed Syrian rebels, which is much more of a combat role.
According to the War Powers Act, Trump's decision to increase the number of Marines without heeding the 48 hour rule was a violation. The clock is now ticking down on the 90 (60/30) day time limit.

The War Powers Act was born out of the Vietnam era to thwart "mission creep." In the age of the imperial executive office, it has also been rather routinely ignored by presidents both Republican and Democrat. (Obama's obedience to the law was something of an exception to the rule.)

The purpose of this law was insure that the collective judgement of both the Congress and the President will it came to military action and especially when it came to "boots on the ground." where, as the resolution states "imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations."

That's Syria in a nutshell.

Sooner or later, Trump is going to have to include Congress and, given his temperament, he is not going to like what the members may have to say.