//  4/10/17  //  Commentary

We don't lack for insightful analyses of why the strike Thursday evening was or was not lawful, under both domestic and international law.  Nor have we been deprived of assessments of the President's policy, political, and personal motivations for ordering the military into action.  If anything, as today's Take Care daily update proves, we're drowning in opinions.

My question, however, isn't why Trump's missile strike might in retrospect arguably be deemed lawful (or not), as filtered through a bevy of after-the-fact blog posts, op-eds, tweets, and TV appearances by the national security and international law commentariat.  Rather, it's why President Trump himself was of the fully reasoned opinion at the time he ordered the strikes that doing so was lawful under all applicable rules and conventions.  

And from this question, many others follow: What reasons did he in fact accept as persuasive?  What are the potential future implications of those reasons?  Through what inter-agency or inter-branch processes were they articulated, tested, and adopted?  And to what extent did distinctively legal considerations play any role whatsoever in the President's thought process, both with respect to ordering a strike at all and with respect to determining the nature of that strike?    

The answer to these questions is profoundly important.  When the President unilaterally decides that America will start bombing (and killing) people in foreign countries, the least we can expect is a sound justification for that action under domestic and international law.  The need for explanation is especially stark when the President's action is so remarkably at odds with many of his own prior statements and appears to have evolved on the fly over just a couple days.

Yet the Trump Administration has, thus far, disclosed essentially none of its reasoning.  As Jennifer Daskal has observed at Just Security:

Of particular concern, the failure to articulate a legal justification for the strikes yields speculation that the President acted without first assessing the domestic and international legal justification for his actions. If so, that would be terrifying. It would suggest a President that deemed himself empowered to engage in the uses of force without constraints imposed by the Constitution’s separation of powers. And it would suggest a President emboldened to use force outside of the constraints imposed by the UN Charter — constraints that recognize the gravity of using unconsented-to lethal force in another nation’s territory and are intended to limit such uses of force accordingly.   These are constraints that need to be considered.  No matter how right Trump was to respond to Assad’s horrific use of chemical weapons in this instance, next time it might not be so clear.

Alternatively, and much preferably, the President has evaluated and considered the legal constraints, but is hesitant to say too much.  This is a huge mistake.  To the extent President Trump believes he is on solid legal footing, he should explain why.  To the extent (as is it certainly seems) that he is offering a new theory of what constitutes a vital national security interest justifying the use of Article II authorities and/or a novel interpretation of international law, he should articulate that theory and set its parameters.  Inevitably, there will be discussion and dissent, and perhaps that is what President Trump wants to avoid.  But it is a healthy kind of discussion and debate.  And it is much preferable than a theory of unbounded authority that the absence of any articulated legal justification suggests.   That is not only damaging, it is dangerous. 

Or, as former white House Deputy National Security Advisor Avril Haines puts it:

Transparency concerning the legal frameworks that govern our use of military force is critical, as it supports the democratic process, promotes the legitimacy of our actions, and strengthens the sustainability of our operations while also promoting our own understanding and interpretations of existing international rules governing the use of force.  This is especially true in the case of the recent strike in Syria against the Assad regime, as the legality of our use of force will be debated and does not fit within the traditional international legal framework, thus it will be important, for example, to have a better understanding of the limitations the Administration perceives on such action going forward.  One hopes that these are limitations we can live with when applied on a reciprocal basis by other nations.

To date, though, the Administration has offered virtually no meaningful, formal explanation of how it comprehends the legal basis for its actions.  Instead, it sent a conclusory War Powers Resolution notice to Congress, which asserts (without explaining) the validity of its strikes on the ground that Trump “acted in the vital national security and foreign policy interests of the United States, pursuant to [his] constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive.”  This leaves open many domestic law questions, and doesn’t address international law issues. 

The importance of those questions is only enhanced by this striking sentence in the letter that Trump sent to Congress:  "The United States will take additional action, as necessary and appropriate, to further its important national interests."  To my knowledge, such language is not standard fare in War Powers Resolution notices, and might well signal that the Administration is seriously contemplating a unilateral escalation of American military involvement in Syria.  If that is true, it is all the more vital for us to understand the legal authority on which they believe they are acting (and the limits thereof). 

For instance, to the extent the Administration's reasoning under international law depends on the immensely problematic and controversial Kosovo precedent, as many commentators have suggested, which factors does the Administration consider most relevant, why does it believe that they are satisfied, what other considerations did it also deem relevant, what limits on escalation and scope does it believe that precedent imposes, and what limiting principle will hereafter separate Syria/Kosovo from other analogous situations calling out for intervention?  And more basically, why does Trump believe that the Kosovo precedent is sound authority?   

On Saturday, Take Care published a post by Marty Lederman revealing and analyzing press guidance provided to Administration spokespeople, which contained the outlines of some legal reasoning.  It’s unclear, though, whether this actually reflects the Administration’s full legal justification and whether these reasons were arrived at before Trump ordered the strike.  What’s more, this press guidance is the bare skeleton of actual legal reasoning—and as any good lawyer knows, the details really do matter. 

Accordingly, there remains a vital need for the Administration to identify to the public its legal rationale—the one upon which Trump actually relied when he pulled the trigger, and upon which he might rely again.

This is something the Administration should do for many, many reasons.  But since it has not yet occurred, I applaud efforts to pressure or compel Trump’s advisors to do the right thing.  Notably, the new group United to Protect Democracy has submitted a battery of FOIA requests on this issue.  It has written to White House Counsel Donald McGahn II to “request that [he] publicly disclose the legal opinion justifying the President’s authority to order military strikes against the Syrian regime on April 6, 2017.”  While I am no FOIA expert and won’t opine on the merits of these requests as a legal matter, the underlying point of their requests and contentions is compelling—and important to preserving democracy.

I can only hope that soon, the Trump Administration’s legal justification for the Syria strikes is made clear to the U.S. public and the international community.  Time matters here, so every passing days compounds the problem.  For obvious reasons, it’s difficult for the many checks and balances that operate on the Executive Branch to function properly when the President cloaks his legal reasoning in shadow, allowing it to dribble outward only in conclusory assertions and half-baked talking points.  Congress, and the American public, deserve better.  

In this field, more than almost any other, we rely on the Executive Branch itself to “take Care that the Laws be faithfully executed.”  Evidence of how it did so—and that it did so—is the least Trump owes the public.   


Versus Trump: Versus Whitaker, In-Depth

12/6/18  //  Uncategorized

On this week's episode of Versus Trump, the gang is re-united, and they discuss the Supreme Court motion contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Are We All Textualists Now?

12/5/18  //  Commentary

Trump's executive order closing the government today out of respect to George H.W. Bush violates the plain text of a federal statute. If we really were all textualists now, that would be taken seriously.

Neil J. Kinkopf

George State University College of Law

Thoughts on Roberts and Trump

11/26/18  //  Quick Reactions

We have at once a highly political appointment process and a strong judicial ethos of being above politics.

Zachary Price

U.C. Hastings College of the Law