The Administration Must Acknowledge Limits on its Power to Start a War.
Cross-posted at Lawfare
Just over a month ago, the Administration launched missile strikes against the Assad regime in Syria. The strikes followed a brutal chemical attack that killed scores of innocent civilians. We are all disturbed by Bashar al-Assad’s horrific attacks on his own citizens. But that cannot obscure the question of what the President’s legal authority was for the missile strikes, or whether he usurped power that belongs to Congress.
This is not an academic question. Our Constitution divides war-making powers between Congress and the President to avoid a situation where it is too easy for one person to take our country to war. In the absence of congressional authorization or any U.N. Security Council resolution, there is no readily apparent legal basis for the military strikes on Syria. And just over 100 days into his term, the President has asserted that he could take further military action against Syria and has warned that a “major, major conflict” with North Korea could be coming. It is critical that the public, Congress, and other nations understand the President’s legal rationale for the strikes and the constraints he recognizes on the Executive’s use of force.
In the immediate aftermath of the Syria strikes, Protect Democracy submitted a series of open records requests to the Department of Justice, Department of State, and Department of Defense seeking the legal authority that the Administration relied on in launching the strikes. Members of Congress have also called on the Administration to explain the legal basis for these strikes. To date, the Administration has failed to provide any legal opinion justifying its actions.
Today, in light of the Administration’s decision not to disclose its legal justification, we filed suit under the Freedom of Information Act against the Department of Justice and other federal agencies.
In a democracy, the public should not be kept in the dark on the President’s views about his authority to initiate a new military conflict. Any time we use force against a new adversary, it creates the potential for a prolonged conflict placing American lives at risk. When the Administration contemplates sending Americans into harm’s way, the public deserves a clear explanation for how our government is acting consistent with the law. The domestic and international legal constraints on the Executive’s ability to start a conflict will, in practice, only be enforced through the political process. Explaining the legal justification is particularly critical the first time a new Administration initiates a conflict without Congressional approval — as this can establish the precedent for how it views its legal authority for future actions elsewhere.
While the precise demarcation has been long contested, our Constitution divides authority for the use of force between Congress and the Executive. But Congress cannot exercise its own constitutional obligations if it doesn’t know where the Executive thinks its power ends and Congress’ begins. As Senator Tim Kaine and Congressman Adam Schiff explained in a recent letter to the President, the Administration’s “assertions of authority [for the Syria strikes] do not provide Congress with the information it needs to exercise our constitutional responsibilities.” In 2011, when President Obama approved military strikes in Libya without prior Congressional authorization, the Justice Department’s Office of Legal Counsel published a detailed legal opinion setting forth the legal rationale. That allowed members of Congress to assess the Administration’s rationale, hear from citizens, and decide whether or not to use its own authorities. That debate continues to this day. But it is only possible because the legal opinion was made public.
Transparency about how the American government views the law also advances our diplomatic efforts and international leadership. America will be stronger if we work alongside our allies in new conflicts; gaining their support requires convincing them of the legal justification for action. At the same time, countries around the world look to the actions of the United States as a guide to the limits of international law. Whatever precedent we set in initiating hostilities against a new adversary may be used against us by a less friendly country. In the absence of a cogent explanation of our international legal basis for using force, we will abdicate our leadership role in defining and enforcing the international rules that govern the use of military force. The U.S. government must publicly articulate its legal theory in order to uphold the international legal framework we have relied on for so many years as a constraint on other states.
Members of the Administration have offered a plethora of inconsistent rationales for the strikes. Most recently, Commerce Secretary Ross described it as no-cost “after-dinner entertainment” for the President’s guests at Mar-a-Lago. The President referenced chemical weapons as justification. The Secretary of State referred to enforcing violations of international commitments. White House spokesman Sean Spicer made the astounding claim that the Constitution gives the President “the full authority to act” whenever military force is “in the national interest.” The Administration released some anonymous bullet points as “Press Guidance.” But as commentators have pointed out, these sparse points are deeply flawed substantively because they fail to acknowledge the absence of U.N. Security Council authorization. Moreover, the “Press Guidance” lacks the hallmarks of adequate legal process, such as which lawyer or legal office developed it and whether any would stand behind it.
The only formal written account from the Administration is a short letter sent to Congress pursuant to the War Powers Resolution. That letter offers vague platitudes — “I acted in the vital national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive.” But it lacks any statement of applicable legal standards and does not address the international legal basis for the strikes. More worrisome, it declares that: “The United States will take additional action, as necessary and appropriate, to further its important national interests.” The letter conspicuously fails to say that the President recognizes domestic and international law constraints on his authority.
The Administration’s refusal to disclose the legal basis for its action suggests one of two things is going on – each of which would be disturbing.
One possibility is that the President never received clear legal guidance that set out the governing domestic and international law standards for initiating hostilities against a new adversary, and never rigorously made an assessment about the legality of the Syria strikes. Experienced lawyers throughout the Executive Branch have substantial expertise on the domestic and international law standards that govern the use of force. Launching a new conflict without seeking their advice would be a substantial departure from sound rule of law procedures and indicate a dangerous disregard for the rule of law.
The other possibility is that the Administration has a legal rationale that they just refuse to share. The Administration has discussed the operation widely, however, so there can hardly be concerns about secrecy, and any references to intelligence community sources and methods could be redacted easily. The only possible explanation for refusing to disclose a legal opinion would be to keep the American people and the Congress in the dark — to prevent informed debate and oversight of the President’s ability to take the United States into a new armed conflict with another country. In our democracy, that is simply unacceptable.
We’re all horrified by Bashar al-Assad’s appalling attacks on his own citizens. People of good faith can differ in their views of the policy merits of America taking military action on its own against the Syrian regime. But we should all agree that in our constitutional democracy, the Executive’s ability to attack another country is constrained by the law. Some countries may tolerate a head of state launching a new conflict without offering a clear legal justification, but we should not.
Justin Florence is the Legal Director of Protect Democracy. He previously served in the White House Counsel’s Office as Associate Counsel and Special Assistant to the President.