Cross-posted at Just Security

The following document has begun to circulate outside the government.  It is said to have been developed within the Administration.  I have not confirmed, however, whether it is a final, approved draft, who its authors are, and/or whether it will receive a more formal distribution.

Basis for Using Force

Domestic

As Commander in Chief, the President has the power under Article II of the Constitution to use this sort of military force overseas to defend important U.S. national interests.  The United States has a strong national interest in preserving regional stability, averting a worsening of the humanitarian catastrophe in Syria, and deterring the use and proliferation of chemical weapons, especially in a region rife with international terrorist groups with long-standing interests in obtaining these weapons and using them to attack the United States and its allies and partners.  This domestic law basis is very similar to the authority for the use force in Libya in 2011, as set forth in an April 2011 opinion by the Department of Justice’s Office of Legal Counsel.   Consistent with the War Powers Resolution, the President will notify Congress of the use of force.  Key congressional leaders received oral notifications yesterday evening.

International

The targeted U.S. military action against the Syrian military targets directly connected to the April 4 chemical weapons attack in Idlib was justified and legitimate as a measure to deter and prevent Syria’s illegal and unacceptable use of chemical weapons.  The U.S. action was only taken after careful consideration of the following:

–Severe humanitarian distress, including the suffering caused by this and other previous unconscionable chemical weapons attacks by the Syrian military;

–Widespread violations of international law by the Syrian government, in particular the repeated use of banned chemical weapons against civilians in direct violation of its obligations under the Chemical Weapons Convention, which it acceded to in 2013, as well as UN Security Council Resolution (UNSCR) 2118, which was adopted by the Security Council under its Chapter VII authority, and which required Syria to cease using chemical weapons and eliminate its chemical weapons program in its entirety;

–Syria’s contempt for multiple UNSCRs including UNSCR 1540 and those seeking to give effect to UNSCR 2118, specifically UNSCRs  2209, 2235, 2314, and 2319.

The recognition in UNSCRs that the proliferation and use of chemical weapons is a serious threat to international security and a violation of international law;

–Syria’s indiscriminate use of such banned weapons to kill and inflict other horrific injuries on civilians in violation of the law of armed conflict, which tragically has been something that Syria has shown little respect for;

–Regional destabilization and international security concerns produced by the Syrian government’s actions, which include large and growing flows of refugees and the potential proliferation of chemical weapons;

–Widespread international condemnation of the Syrian government’s conduct, including its use of chemical weapons;

–A convincing body of reporting that the Syrian Government has committed widespread violations of international law during the conflict;

–The exhaustion of all reasonably available peaceful remedies before using force, including extensive and intensive diplomatic efforts both to end armed conflict in Syria and to eliminate Syria’s chemical weapons stockpile;

–The U.S. use of force is necessary and proportionate to the aim of deterring and preventing the future use of chemical weapons by the Syrian government; and

–The U.S. efforts to minimize civilian casualties in the planning and execution of the strike.

A few quick reactions:

1.  There is no indication which government attorneys, if any, were involved in writing this document; nor whether OLC, State L, and/or other lawyers advised the President before the strikes took place, based upon these “arguments” or otherwise, that the proposed military action in Syria would be lawful.

2.  The section labeled “International” offers a very compelling case for why the U.N. Security Council ought to authorize some sort of effective, collective action against Syria to stop its barbaric and unlawful use of chemical weapons.  (Of course, the Russian veto will preclude any such UNSC action.)

That account does not, however, explain why the United States can (or should) lawfully respond with a use of force unilaterally, without Security Council approval or even (as in Kosovo 1999) the ex ante approval of a broad set of allies and states within the region, and to do so in apparent breach of Article 2(4) of the U.N. Charter.  (As I wrote yesterday, there is a very widespread, if not quite universal, consensus, that the strikes were a breach of Article 2(4).)  The document does not even mention the Charter, nor suggest that the United States has not violated it.  It does not even suggest any implied theory as to why there was no breach here.  Indeed, it does not purport to be a legal argument at all:  The words “international law” and “Charter” do not appear.  Instead, it sounds more in the register of an explanation of why President Trump decided to put the U.S. in breach of the Charter — although, oddly, it does not even mention that the Russian veto would preclude UNSC action, a factor that presumably would be central to any such attempted justification.

3. The section labeled “domestic,” standing alone, appears to be a fairly reasonable, if very summary, application of what I’ve called the Clinton/Obama “third way” understanding of the political branches’ relative war powers, which has effectively governed post-Korea practice.  As I’ve written, this framework is best articulated in Walter Dellinger’s OLC opinions on Haiti and Bosnia, and in Caroline Krass’s 2011 OLC opinion on Libya.  The gist of this middle-ground view (this is my characterization of it) is that the President can act unilaterally if two conditions are met:  (i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the 2011 Libya opinion).

As for the first of the two conditions for unilateral presidential use of force, the Trump document cites “a strong national interest in preserving regional stability, averting a worsening of the humanitarian catastrophe in Syria, and deterring the use and proliferation of chemical weapons, especially in a region rife with international terrorist groups with long-standing interests in obtaining these weapons and using them to attack the United States and its allies and partners.”  As I’ve noted before, I’m wary of resort to the interest in “regional stability,” which has never been used as a stand-alone justification for unilateral executive action.  The other two purported interests, however–averting a worsening of the humanitarian catastrophe in Syria, and deterring the use and proliferation of chemical weapons by a state that has demonstrated a willingness to use them–would appear to be fairly compelling.  Even so, they raise difficult concerns because they do not have the historical pedigree of the interests that have supported past presidential uses of force.  As I wrote in 2013:

For almost a century the U.S. has worked assiduously, with many other nations, to eliminate the scourge of chemical weapons.  If Syria’s use of such weapons were to remain unaddressed, that might seriously compromise the international community’s hard-won success in establishing the norm that such weapons are categorically forbidden, and should not even be contemplated as instruments of war.  As Max Fisher has written, “it’s about every war that comes after, about what kind of warfare the world is willing to allow, about preserving the small but crucial gains we’ve made over the last century in constraining warfare in its most terrible forms.”

Preventing that degradation of the strong international norm against use of chemical weapons is, indeed, an important national (and international) interest of the first order.   And perhaps that should be enough to justify discrete, unilateral presidential action short of “war in the constitutional sense.”  But if so, it would nevertheless be an unprecedented basis for unilateral executive action, and it would open up a whole new category of uses of force that Presidents might order without congressional approval, even where such actions could have profound, longstanding consequences:  Most obviously, think, for example, of possible strikes on Iran in order to degrade its nuclear capabilities. . . .   At a minimum, it’s a profound, and heretofore unresolved, question, one that any President should be wary of raising.

Even if those two interests would satisfy the first prong, however, the Trump document does not expressly address the second criterion, namely, that the operation must not be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause.”  To be sure, from what we know thus far, the operation was very discrete and limited in scope and duration.  And in some respects, its “nature,” too, did not (at least not thus far) resemble the sort of full-fledged “war” that the Framers presumably had in mind:  There was, for example, little (immediate) risk to U.S. armed forces or Syrian civilians.

Nevertheless, the document fails to deal with at least two other very important things that might well materially affect the “nature” of this operation for purposes of constitutional analysis.  The first is the possibility of escalation, and, especially, military engagement with Russia.  (I’m not saying that the risks of such escalation were not considered–only that they should have been, and that if the anticipated risks of such escalation were high, that factor ought to have been taken into account in the legal calculus.)

Second, and perhaps more importantly, the document’s constitutional analysis appears to proceed on the assumption that the U.S. would not be breaching the Charter and thereby setting a very significant precedent for future state action that could seriously undermine the Charter system that’s been in place for 70 years–or perhaps it proceeds on the assumption that the treaty-compliance question is irrelevant to the constitutional question.  In a post Thursday evening, I explained that I think that is a fundamental mistake–that, in my view, the President does not have the constitutional authority to cause the nation to breach its treaty obligations, absent legislative authority to do so.  (And that is so not only because the treaty binds the U.S. as a matter of international law, but also because it binds the President as a matter of domestic law.)

In this respect, the Trump document goes very wrong when it contends that the “domestic law basis” it describes “is very similar to the authority for the use force in Libya in 2011, as set forth in an April 2011 opinion by the Department of Justice’s Office of Legal Counsel.”  The Libya operation in 2011 was multilateral, and was pursuant to UNSC authorization.  Accordingly, that operation ratified the primacy of the Charter system, and did not threaten the United States’s position among other nations.  Understandably, then, the 2011 OLC opinion relied heavily upon the U.S. interest in “preserving the credibility and effectiveness of the United Nations Security Council.”  The strikes against Syria, by contrast, were unilateral (in the sense of being done by the U.S. alone), and they violated the Charter, a treaty largely drafted and championed by the United States and to which every state in the world has agreed.  Far from “preserving the credibility and effectiveness of the United Nations Security Council,” then, Thursday’s actions, if anything, undermined the stability and efficacy of the Charter system.

[UPDATE: Charlie Savage reports that it is press guidance that has been provided to Administration spokespeople. Not yet clear whether it is based upon any formal legal advice.]

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