A Syria Strike in 24-48 Hours: What’s the President’s Legal Authority?

President Trump said yesterday he’d make a decision in 24-48 hours on launching additional U.S. military action against Syria.  Before he does, the press, public, and Congress need to ask: would that be legal? Our President is constrained by the U.S. Constitution and laws and treaties adopted pursuant to that Constitution.  Before he can take military action he needs to have both domestic and international legal authority to do so. The typical foundations of legal authority to use force – a congressional use of force authorization and a U.N. resolution – are absent here.  So what legal basis does the Administration have and why are they hiding it from Congress and the public?

The Administration has been stonewalling Congress and the public on what the President’s legal authority to go after Syria is for a year now.  At Protect Democracy, we’ve been seeking the Administration’s legal justification for its April 2017 strikes through an ongoing FOIA lawsuit. (You can read more about that here on our website and in a pair of Lawfare posts here and here).  The same legal questions applicable to the April 2017 strike presumably apply here as well.

Here’s what we have learned through our FOIA suit:

Just before the April 2017 strikes against the Assad regime, Administration lawyers prepared an interagency legal opinion assessing the President’s legal authority. They also released anonymous talking points, but have refused to confirm whether they are authentic. In response to our FOIA suit, the government has acknowledged that the legal analysis in that opinion is not classified; only a few facts about the chemical weapons attacks are. The Administration has also used that April 2017 legal memo to provide advice to senior officials on potential future military strikes. The Administration has rebuffed requests from Congress as a whole and individual Senators for information on the legal opinion.  Congress enacted a provision requiring a report on Syria disclosure and the Administration has failed to meet the deadline.  Individual members including Senator Kaine have also had to repeatedly request the memo. All in all, the Administration has offered just a few conclusory and open-ended sentences, invoking the President’s inherent Article II executive authority to act in the national interest.  This inadequate phrasing from an April 2017 letter to Congress required by the War Powers Act was repeated in a recent report on legal and policy frameworks Congress had demanded. The Administration’s failure to share its legal opinion stands in stark contrast to how prior Administrations have handled these situations.  They have regularly made public legal opinions explaining the authority for the use of force.  This allows Congress and the public to assess and respond to the Administration’s claims of unilateral legal authority.

Syria presents extremely hard moral and policy questions.  Assad has committed some of the gravest crimes against humanity we have seen and the world must come together to confront his horrific butchering of children and civilians. But we can’t lose sight that we are a country of laws and that the President’s policy options are constrained by the law. The President cannot send our military against a foreign regime without justification under U.S. and international law, and without public debate about its merits.  There are many — us included — who would like nothing more than to see Assad be stopped and pay for his crimes. But if President Trump claims unilateral authority to decide to strike Assad, he may claim similar authority to unilaterally strike North Korea, or Iran, or France, and that’s not the way our system does or should work.

So the President, White House press secretary, and other Administration officials need to be asked:

What is the legal authority under U.S. domestic law for the President to direct strikes against Syria in the absence of any congressional authorization? What is the legal authority under international law in the absence of any U.N. resolution? Why won’t the Administration give Congress and the public its legal opinion from 2017, which it has admitted is not classified? Does the Administration have other secret legal opinions on the President’s authority to use military force against other countries — for example, North Korea or Iran — and why won’t it share them with the public?