Table of Contents
On April 6, 2017, at 8:40 PM EST, U.S. warships stationed in the Eastern Mediterranean fired fifty-nine Tomahawk cruise missiles at the Shayrat military airfield in Syria. U.S. intelligence indicates that Syrian forces located there were responsible for the recent chemical weapons attack perpetrated against Syrian civilians in a rebel held city. One week later, a U.S. air force cargo plane dropped the Mother of All Bombs on an Islamic State tunnel, bunker, and minefield complex in Eastern Afghanistan. Because the fighters were concentrated in one location for the group’s evening prayer service, dozens of mid-level Islamic State militants were killed in the blast.
House and Senate leaders were briefed on the missions beforehand. However, a bipartisan group of lawmakers is questioning the domestic and international legality of the strikes.
Senator Tim Kaine (D-VA) argued that the administration’s “failure to seek congressional approval is unlawful.” Congressman Justin Amash (R-MI) stated that the “airstrikes [were] an act of war” and that Trump needed formal congressional authorization before initiating hostilities. Former Justice Department Legal Adviser, Marty Lederman, has concluded that the administration’s actions violate the U.N. charter’s proscription on the use of force.
These critiques fall flat. Trump’s Syrian airstrikes and Afghanistan bombing violate neither domestic nor international law. The President had statutory, constitutional, and international authority to conduct these missions.
STATUTORY AUTHORIZATION
Congress can provide the President legal authority to conduct a military raid with (1) a formal war declaration, (2) a separate Authorization for Use of Military Force (AUMF), or (3) a treaty, statute, or joint resolution that (a) recognizes the existence or potential existence of hostilities and, (b) does not mandate an immediate ceasefire.
Congress did not declare war against the Assad regime or Islamic State before the Shayrat strikes and Afghanistan bombing. Formally declaring war is not a necessary condition for ensuring a military operation’s legality.
The United States has only declared war five times in its two hundred and twenty-six year history. However, Presidents have unilaterally initiated conflict in over two hundred actions in order to protect American property, citizens, and interests abroad. This conclusion is consistent with the constitution’s original meaning. The framers established a system that was designed to simultaneously encourage presidential initiative in war and limit congressional oversight through the appropriations and impeachment process. During the late eighteenth century in Europe, a declaration of war was simply a public act that allowed un-enlisted civilians to engage in hostile operations and seize enemy property without violating international law. Early modern European states treated declarations of war as matters of convenience that allowed diplomats and foreigners to draw distinctions between limited, private hostilities and all-out public conflicts. Nothing more, nothing less.
Congress has, however, passed one joint resolution authorizing the Shayrat strikes and Afghanistan bombing. The 1973 War Powers Act requires the President to file a report with Congress when the Commander-in-Chief introduces U.S. forces into hostilities without express congressional authorization. The Resolution’s substance, structure, and text implicitly assumes that the President has authority to initiate short, limited military operations, such as the Shayrat strikes, whenever and wherever he pleases. Since the Nixon administration, every President has argued that this is the War Powers Act’s proper meaning.
CONSTITUTIONAL AUTHORIZATION
The President is the Chief Executive and Commander-in-Chief. He has constitutional authority to conduct the nation’s foreign relations and initiate military action without congressional approval so long as two conditions are met. First, the planned strike must advance significant national security interests. The President is afforded much deference in determining what constitutes a sufficiently important national interest justifying immediate or short term military action. Second, the strike must be unlikely to precipitate extensive conflict requiring a prolonged presence of ground forces.
In this case, both criteria are met. Striking Shayrat military airfield (1) preserves Western Asia’s regional stability, (2) deters the proliferation and use of deadly chemical weapons by groups like Al Nusra and ISIL, and (3) limits the humanitarian catastrophe against Syrian Yezidis. Short air campaigns involving cruise missiles or drones also present practically no opportunities for American casualties or prolonged ground troop commitment.
INTERNATIONAL AUTHORIZATION
Syria and the United States are now involved in an international armed conflict. Common Article 2 of the 1949 Geneva Conventions and U.S. Defense Department’s War Manual clearly state than an international armed conflict exists when there are hostilities between states. This categorization is significant because American military operations must comply with international humanitarian law during armed conflicts.
Because the President does not have the constitutional authority to cause the nation to breach its treaty obligations without prior congressional authorization, the U.N. Charter provides the appropriate framework for assessing the administration’s recent actions. Both operations were permitted under international law so long as they were (1) acts of self-defense, (2) approved by the Syrian or Afghan government, or (3) a humanitarian intervention mission.
First, Article 51 of the U.N. Charter provides that states have an inherent right to individual and collective self-defense against armed attacks. This rationale, however, does not justify the Shayrat foray because Syria’s chemical weapons strikes were not directed at American nationals or their property. Moreover, preemptive self-defense claims also fall flat because there was no reason to believe that Syria was planning a chemical weapons attack against the United States in the near future. Since 2001, however, State Department has argued that the U.S. has a right to conduct retaliatory and preemptive strikes and bombings to defend itself against attacks from Al Qaeda and the Islamic State.
Second, while Syria, did not consent to Trump’s tomahawk airfield strikes, Afghan President Ghani approved the administration’s operation because he believed it would support joint Afghan-U.S. clearance projects in the region. Ghani’s acquiescence and the State Department’s self-defense claim provide international authorization for the MOAB bombing. All that remains, therefore, is the Shayrat incursion.
Several prominent international legal scholars argue that the U.N. charter’s prohibition on armed force implies an exception for collective humanitarian intervention. After all, armed conflict bans are supposed to maintain international peace and security and promote respect for human rights, not shield tyrants from responsibility for wanton murder. Under this theory, the Shayrat operation could be classified as a humanitarian mission as long as three conditions were met. First, Syria’s sarin and chlorine attacks must have disturbed international peace and security. Second, the Security Council must be unable to remedy the situation. Finally, the intervention operation must be a limited and proportionate response to the humanitarian catastrophe.
Bashar al-Assad’s tactical decisions have promoted chemical weapons proliferation, precipitated massive refugee outflows, and destabilized regional peace and security. Russia and China have blocked U.S. efforts to secure a Security Council resolution authorizing military force against Syria. And U.S. cruise missiles were only fired at facilities directly connected to chemical weapons strikes. In other words, Trump clears every hurdle.
