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:
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: