On the Timing, Legality, Strategy, and Effect of the Strike on Syria

Yesterday, the US launched 59 Tomahawk cruise missiles against Syria, striking an air base that President Trump alleged played a direct role in the gruesome nerve gas attack of Tuesday. The attack prompted the usual questions: Why now? Is it legal? What effect will the strike have on Syria? On the US’s role in the Syrian civil war?

Why now? If we take President Trump at his word, the horrific nature of the effects of nerve gas, likely coupled with the video evidence of children gasping for their last breaths, altered his assessment of the wisdom of leaving the Assad regime in place or allowing it to conduct chemical weapons attacks unpunished. That the strike occurred two days after the chemical attack and (for now) seems to be limited to a single air base claimed to be involved in some way (whether that means there is a chemical weapons facility there or simply that the planes that dropped the chemical agents launched from there is as of yet unknown. The New York Times has a nice feature on the targets) supports the logic that this represents a specific response to a specific event.

Past presidents have spoken of seeing all the horrors and miseries of the world and realizing that they actually had the power and tools to do something about them (not necessarily to solve them, however). Seeing starving Somali children on (what was then the relatively new) CNN was, in most accounts, motivated President George H. W. Bush to intervene in Somalia. Watching the video of the attack is undeniably horrifying and it’s perfectly reasonable to believe that Trump, who almost certainly has never seen or even thought about such things before, was shocked to his core and felt he had to act.

But, could the attack be a diversion? It’s no secret that things haven’t been going well for the Trump administration lately, and it’s also no secret that military actions tend to produce an immediate upsurge of public support–the so-called “rally-around-the-flag effect”–for the president. It’s not impossible, but I see it as unlikely. Presidents often face bad timing when they seek to use military force. Recall President Clinton’s air strikes against Iraq in Operation Desert Fox on the eve of his impeachment trial. It’s hard to imagine the Joint Chiefs, the theater commanders, the Secretary of Defense, and the National Security Adviser all going along with a military strike that has no perceived value or is motivated solely by domestic political concerns. That’s not to say that the use of force won’t benefit Trump in the court of public opinion; I’m just skeptical that it’s the primary motivation.

Was it legal? Does the president of the United States have the right to attack another sovereign state with which the US is not at war and that does not pose an immediate, direct threat to the US or US citizens? Article I, Sec. 8 gives Congress the power “to declare war” but it does not declare what that power encompasses? Put simply, are all uses of force “war” in a legal sense that require congressional authorization? If not, can the president use force whenever and wherever he sees fit? (NOTE: as I’m not really a scholar of international law, I’ll leave the question of whether the attack was legal under IL to others. If you’re interested, you can find good analyses here (in favor) and here, here and here (against).

Most critics of an expansive view of presidential war powers argue that “declare war” does indeed cover all uses of force, and therefore any use of force without a specific congressional authorization are unconstitutional. To with, Representative Justin Amash tweeted that “Airstrikes are an act of war. Atrocities in Syria cannot justify departure from Constitution, which vests in Congress power to commence war,” Senator Rand Paul argued that “The President needs Congressional authorization for military action as required by the Constitution” and Atlantic commentator Conor Friedersdorf claimed that “Trump’s Syria strike was unwise and unconstitutional.”

I disagree. The Declare War clause was not intended by the framers of the Constitution, and has not been interpreted by courts, by any president, or even by Congress to cover all uses of force. Rather, as I have argued in several articles and my book (the shortest and clearest explanation of my argument is here), the congressional war power is meant to protect the domestic sphere from executive overreach during times of war, not control whether the president can use force abroad. This is mostly a result of the president’s Article II powers as commander in chief.

But even a broad understanding of presidential war powers under Article II might have its limits (I say might…these arguments don’t convince me, but they do convince other smart people). As Jack Goldsmith notes over at Lawfare, Article II arguments still should have to have a tangible connection to national interest; that is, is the national interest sufficiently threatened to justify allowing the president to use force unilaterally?

In his remarks last night, President Trump outlined how he sees the US national interest here: “It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons. There can be no dispute that Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention and ignored the urging of the U.N. Security Council. … As a result the refugee crisis continues to deepen and the region continues to destabilize, threatening the United States and its allies.” As one who takes a broad understanding of the war powers of the president (perhaps the broadest), this is squarely within the realm of precedent and law. I have no doubts that the strikes were legal, that congressional approval was not needed, and that, despite much bleating, Congress has no interest in actually being involved in approving such action.

[NOTE: I’m happy to go into more detailed explanations of my arguments about presidential war powers. Please ask any questions in the comments and I’ll answer as soon as I can.]

What effect will the strike have on Syria? Probably not much. This seems to be a limited strike, designed to send a small message of punishment along with a stronger message of deterrence (don’t use CW again!). Attacking one air base is unlikely to have any significant impact on Assad’s military capability or on Assad’s rule.

What effect will the strike have on the US’s role in the Syrian civil war? Again, the answer is probably not much. Secretary of State Tillerson is already claiming that this was a one-off and will have no long-term impact on how the US understands its interests in Syria. In a way, that’s a good thing. Long-term strategic policy should not turn on a single instance of emotion. If Trump believes, as did Obama, that the US has no vital interests in intervening in Syria, that would be exceedingly dangerous for that belief to be altered by the gas attack. But a limited strike doesn’t represent that kind of change in interest. Rather, it shows that the US does have interests in deterring the use of WMD and punishing indiscriminate and horrific attacks against civilians. Obama’s defense of his decision to not enforce his “red line” against previous uses of WMD by Syria was a red herring; it’s possible to take limited actions to pursue limited interests without risking mission creep or unlimited involvement. Furthermore, the strikes send a powerful message to American allies, who likely have been doubting the commitment of the Trump administration to the traditional American role in the international system. While this is only one strike, and a limited one at that, it demonstrates that the US will continue to stand for international norms, enforce (to some degree) the rules of the system, and will remain engaged in the world.

The real effect will be determined by how the US follows up on the cruise missile strike. Will Trump undo the gutting of US diplomacy and come to understand that, while force has its place, it also has its limits? There might not be a military solution that the US can bring to Syria, but there’s no reason that the US should not keep pushing for cease-fires, humanitarian aid, and diplomatic solutions. But the US will need a staffed and funded Department of State for that, something Trump has, so far, been unwilling to provide.

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2 thoughts on “On the Timing, Legality, Strategy, and Effect of the Strike on Syria”

  1. Thank you for explaining your thoughts on the legality and constitutionality of this. One of my concerns is how Russia will react. Do you think they knew about this all along, and they are playing at being outraged so that they don’t look too close to the Trump administration? Or is Putin truly upset? Does it matter?

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  2. I don’t think Russia knew and I think they’re pretty upset about the attack. The strongest evidence for this is that Russia has suspended air coordination operations over Syria (https://www.nytimes.com/2017/04/07/world/middleeast/missile-strike-syria-russia.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=a-lede-package-region&region=top-news&WT.nav=top-news). This means that Russia will no longer work with the US to “de-conflict” the airspace over Syria, which could lead to accidents like collisions between air platforms operating in close proximity, Syrian air defenses targeting and launching at US planes, or even conflict between US and Russian planes. I’m not saying that these things will happen, just that suspending coordination is a costly and meaningful move. Russia wouldn’t have done that if they were on board or not upset.

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