Short answer: Probably not. And no, not really.
The strike on Syria may already be old news, but I doubt it’s the last time in this presidency we’ll have to ask ourselves, was that legal? Below, I explore a few questions about Executive war powers and international law, and the biggest question of all: does the law even matter?
Who decides whether the U.S. should launch a strike against a foreign target – the President or Congress?
The complex relationship between Congressional and Presidential war powers is summarized nicely by Cornell’s Legal Information Institute. The President is the commander in chief of the armed forces and has implied authority to act in response to a national emergency, but only Congress has the authority to declare war, under Article I, Section 8, Clause 11 of the Constitution, and has additional say over use of force through the War Powers Resolution. This is meant to put a check on the Presidency and prevent any one person from embroiling the US in foreign engagements that may not be in the country’s best interests.
But none of this really matters. In practice, Presidents have routinely bypassed Congress and taken unilateral, unauthorized military action. There is some justification for this from a purely pragmatic, if not strictly legal, perspective. From The National Review:
“The Framers realized the obvious. Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by preexisting legislation. Instead, they can demand swift, decisive action — sometimes under pressured or even emergency circumstances — that is best carried out by a branch of government that does not suffer from multiple vetoes or that is delayed by disagreements.”
The problem here is that we are neither at war with, nor under threat of attack from, Syria. When Obama faced the same decision in 2013, following the first chemical weapons attack by the Assad regime, he chose to seek Congressional approval. I suspect that he was not driven solely by a constitutional scholar’s respect for checks and balances. It was likely a combination of legally covering the administration’s ass – because even Obama couldn’t find solid legal ground for a strike – and a pragmatist’s anticipation that Congress would refuse to grant approval, providing Obama an easy out from a potentially complex and protracted intervention. Either way, procedurally, it was the right way to go.
Did the strike violate international law?
Almost certainly, yes. International law is far less ambiguous and nuanced than our domestic rules on military engagements. (Opinio Juris: “almost everyone … thinks the strike violates the UN Charter and many think it also violates the US Constitution.”)
Article 2, Section 4 of the UN Charter states unequivocally that:
“all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other matter inconsistent with the purposes of the United Nations.”
In other words, UN member states have agreed to stay out of each other’s business and refrain from use of force – except in two very limited circumstances:
1. If the UN Security Council determines that sanctions or other diplomatic efforts aren’t working to resolve a conflict, it can authorize the use of force. (Article 42.)
2. Individual or collective self-defense. (Article 51.)
Here, there was no UN Security Council resolution, and self defense is not a valid justification, because Article 51’s self-defense provision applies only if an armed attack occurs against a member state. This is a civil war – Assad did not invade or attack a UN member state.
For the same reasons, Trump also can’t prevail on the argument that Assad has violated international human rights law, even though he most certainly has. The UN Charter simply doesn’t allow even humanitarian intervention without Security Council authorization.
Bottom line: no argument passes muster.
Does the legality of the strike even matter?
Ok, so Trump very likely acted beyond the scope of his Constitutional authority and violated the UN Charter. So what? Does the law matter, when presidents have routinely bypassed Congressional approval and ignored or “creatively interpreted” international law in practice?
Is it illegal to speed? Do people do it all the time?
Laws are only as binding as the capacity to enforce them. Beyond strong rhetoric and vague threats of consequences, there has been no meaningful pushback from the international community, and that’s the way it has always been.
What is the practical effect of the strike?
The strike seems unlikely to turn the tide of Syria’s civil war. (N+1 Magazine has a great background on the conflict and where it’s headed.) So long as Russia, among others, props up the Assad regime, a single strike isn’t going to change anything. If the goal was to send a warning shot, it will be useless unless we’re prepared to follow up, and that risks precisely the kind of protracted engagement that Trump has vowed to avoid.
For now, the strike has served only to unsettle our allies and frenemies alike, as a demonstration of Trump’s apparent impulsiveness, even if it comes from a genuine desire to end the Syrian people’s suffering. From the Times:
“Mr. Trump’s advisers framed his decision in the dry language of international norms and strategic deterrence. In truth, it was an emotional act by a man suddenly aware that the world’s problems were now his — and that turning away, to him, was not an option.”
And this makes me nervous. As much as inaction pains me, I side closer to Obama’s overly-cautious approach and prefer process over bluster. The President does not, and should not, have unilateral powers to attack in the absence of a national emergency.
Yours truly, one strike at a time,