I previously argued that the Trump ordered missile strike against Syria was not permissible under international law. This article will evaluate the question from the perspective of United States law.
Three provisions of our Constitution act in tension with each other. Article I Section 8 of the Constitution gives the United States Congress the sole authority to declare war. Article II, Section 2 designates the President “Commander in Chief” of the military. Article VI declares that the “Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”
I emphasized “all treaties made” because the U.N. Charter is a treaty that was ratified by the United States Senate. Accordingly, if my prior analysis that the attack violated the U.N. Charter is correct then it also violated what our Constitution defines as “the supreme law of the land.” However, this article will otherwise ignore international law authority and evaluate the question solely from the perspective of whether Trump’s decision was legal strictly with reference to American law.
At least one interpretation of the Article I vs. Article 2 provisions mentioned above is that Congress decides whether force is used and the President decides how. That is Congress makes the decision to fight, and the President as Commander in Chief decides how American forces will engage in the fight.
In fact, even from earliest times of our Republic, American Presidents have used military force without Congressional approval. As events moved faster in modern times the need to use the military quickly, without the delay of Congressional debate and action, intensified. The tension between the Constitutional provisions became a national debate after Presidents managed to drag America into the deadly mire of the decade long, but undeclared, Vietnam War.
The War Powers Act.
Shortly after the Vietnam War, to clarify the mutual boundaries of power Congress passed Wars Powers Act of 1973, overriding President Nixon’s veto to do so. The War Powers Act is rather clear on this question.
Pursuant to 50 U.S.C. 1541 the President has the authority to (without Congressional declaration of war or other approval) “introduce United States Armed Forces into hostilities” only when there is “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
That’s it. Put simply, the President was authorized under the War Powers Act to attack Syria only if Syria attacked the United States or our armed forces. That didn’t happen. Accordingly, the Trump’s unilateral decision to attack Syria plainly violated The War Powers Act.
It should be noted that Section 1542 of the Act requires “The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities.” That didn’t happen either.
Other provisions require reports to Congress and eventual Congressional approval if American forces are introduced to hostilities and eventual Congressional approval to keep them there. However, these provisions presume that the introduction of forces was justified to begin with. In this case, they were not.
Interestingly, in 2013 Trump knew Congressional approval was required for this sort of thing, he just seems to unlearned that.
History the War Powers Act Since Passage.
Trump’s violation of the War Powers Act is certainly not the first by an American President. Clinton arguably violated it in the Kosovo bombing campaign. Clinton’s stretching of the War Powers Act was challenged in the case of Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). The court essentially ruled the matter was a non-justiciable political question beyond the reach of court adjudication.
Perhaps the most clear violation of the War Powers Act was committed by President Obama in the campaign against Libya in 2011. The House of Representatives in June 2011 voted to rebuke President Obama for this violation, but no further action was taken.
Will Anything Be Done?
Given this history, Congress is unlikely to take action against Donald Trump for this plain violation of American law, unless he continues to attack Syria. In my view it is unlikely Trump will continue attacking Syria.
As I said before, this attack was for show. A strike on a single airbase is not militarily significant in changing the balance of power in Syria. The recent news that the United States warned Russia (and thereby the Syrians were also warned) beforehand, further reduced the military effectiveness and relevance of this attack.
Trump needed to undo his own mistake of suggesting to Assad that the United States was on his side. With the message of that blunder reversed, Trump will stop.