16 April 2018
Keeping secret the legal justification
for bombing Syria undermines democracy
Yesterday, The Intercept reported that President Trump’s decision to order air strikes on Syria’s chemical weapons infrastructure is based on some kind of legal justification that’s being withheld from Congress:
On Friday night, President Donald Trump ordered the U.S. military to conduct a bombing attack against the government of Syria without congressional authorization. How can this be constitutional, given the fact that Article I, Section 8 of America’s founding document declares that “the Congress shall have Power … To declare War”?
The deeply bizarre and alarming answer is that Trump almost certainly does have some purported legal justification provided to him by the Justice Department’s Office of Legal Counsel — but no one else, including Congress, can read it.
There’s been little outcry over this, probably because there’s a general sense that notwithstanding the legality of the air strikes, Syria deserved the punishment. At Reptile Dysfunction, William Skink rightly observed:
No authority sought from Congress. No vote from the UN Security Council. No conclusive evidence of claimed gas attack or time for a thorough investigation. No outcry from the resistance. No critical corporate media reporting framing this as a violation of international law.
Whether much if any real punishment was administered was addressed by Eliot Cohen in The Atlantic. Aviation Week has a good summary of the military aspects of the air strikes, which comprised approximately 100 cruise missiles carrying 450 kilogram warheads. The missiles cost approximately one million dollars each (and burn fuel costing $25/gal), so the mission probably cost $150 million or so.
That amount of money would help quite a few Syrian refugees, but helping Syrian refugees is not what the United States does these days.
At Justsecurity, two articles, one by Harold Koh, the other by Jack Goldsmith and Oona Hathaway, discuss the legality of the attacks. At Lawfare, John Bellinger and Laurie Blank have articles on the legality of the strikes.
There may be an argument that the attack was technically illegal but morally justified on humanitarian grounds. I find that proposition dubious, but I’m willing to consider it. But that’s not the argument Trump is making. Instead, he’s asserting that his constitutional status as Commander in Chief gives him unlimited power to initiate military action unilaterally even when there is no clear and present danger to the United States, and that he has no constitutional obligation to inform Congress or the nation of his reasoning.
That’s an assertion of dictatorial power, of extra-constitutional authority, that if unchallenged will gravely wound our democracy. Americans and their representatives in Congress have the right, the need, and the responsibility, to read and review the administration’s legal rational for acts of war. It’s time for our representatives in Congress, for our candidates for public office, for all concerned citizens, to stand up and say so.