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View Full Version : Bad Legal Arguments for the Syria Airstrikes




TheCount
04-15-2018, 11:08 AM
On Friday night, the United States, United Kingdom, and France launched a coordinated attack in Syria, reportedly aimed at sites related to Syria’s chemical weapons program. President Trump stated (https://www.vox.com/2018/4/13/17236862/syria-strike-donald-trump-chemical-attack-statement) that he “ordered the United States armed forces to launch precision strikes on targets associated with the chemical weapons capabilities of Syrian dictator Bashar al-Assad.” The president emphasized that “Assad launched a savage chemical weapons attack against his own innocent people,” noted that “[l]ast Saturday the Assad regime again deployed chemical weapons to slaughter innocent civilians near the town of Douma near the Syrian capital of Damascus, and stated that “[t]he purpose of our actions tonight is to establish a strong deterrent against the production, spread, and use of chemical weapons” (emphasis added).

As we wrote (https://lawfareblog.com/downsides-bombing-syria) before Trump’s announcement, there is no apparent domestic or international legal authority for the strikes. Although the United States has not offered a formal legal argument, a number of legal theories have been floated in recent days. We address them each briefly here.

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The administration’s position. The Trump administration does not believe that either the 2001 or 2002 AUMF is the domestic legal authorization for these strikes. Although it has offered no official legal argument for the strikes, Defense Secretary James Mattis made crystal clear (https://www.defense.gov/News/News-Releases/News-Release-View/Article/1493610/statement-by-secretary-james-n-mattis-on-syria/) that he believed Article II alone was the basis:

As our commander in chief, the president has the authority under Article II of the Constitution to use military force overseas to defend important U.S. national interests. The United States has an important national interest in averting a worsening catastrophe in Syria, and specifically deterring the use and proliferation of chemical weapons.


This is the very constitutional rationale that, as we explained in our prior (https://lawfareblog.com/downsides-bombing-syria) post, permits the president “to use air power unilaterally basically whenever he sees fit.”

https://www.lawfareblog.com/bad-legal-arguments-syria-airstrikes


And of course Congress will do nothing to correct the notion that the President is the sole arbiter of war. They have entirely delegated their Constitutional responsibilities.

Much more in-depth analysis at source.