In October 1962, my middle school principal announced an emergency plan: in case of attack, those of us who lived within a mile would walk home.
That is still the longest walk I never took; half a century later, I dream about it sometimes. It is like a faded, scratchy clip from a black-and-white episode of The Twilight Zone: empty streets; sirens echoing off walls.
Then a flash of light.
The New York Times has called the confrontation with North Korea “a ‘Cuban missile crisis in slow motion.’” But I haven’t had a chance to worry about that yet. I am still too scared by what happened on and after April 6, the day President Trump decided to throw cruise missiles at Syria. The use of military force against another country is a huge legal event. Trump has literally treated this solemn decision like a round of golf at Mar-a-Lago, and the courtiers and commentators have fallen into line.
The wise heads assure us that the Syria intervention is a good thing for all concerned. I have my doubts, but my expertise doesn’t run to the intricacies of Middle East policy.
But I do know something about law. What terrifies me about Trump’s apparently impulsive decision to strike at Syria is that it appears to be illegal under U.S. and international law; that the president will not deign to explain why he thinks his actions were within the law; and that the same wise heads TV and newspaper heads—the green-room crowd of lawmakers, think-tankers, and newspaper columnists who tell us all what to think—display no interest in the issue. Leaders of Congress display no enthusiasm for discharging their constitutional responsibility to decide when the country may go to war.
Instead of challenging the legal basis of the strike, the institutions we regard as “checks” on the president have simply fawned and simpered.
Military force is dangerous; its lawless use is even more dangerous. The constitutional and statutory constraints on the war power, as interpreted in practice over the past 75 years, already afford a president broad leeway to send American forces into harm’s way; but Trump has now blown past the few constraints that remain.
And nobody is calling him on that.
President Trump, after watching televised footage of a gas attack on the rebel-held city of Khan Sheikhoun, ordered U.S. forces to strike at a Syrian Air Force base. That was not an attack on the United States. Trump did not request authorization from Congress. He also did not seek authorization from the United Nations Security Council; he did not consult with the NATO allies who have been supporting U.S. military operations elsewhere in the Middle East.
Let’s be clear about the strike against Syria. It is not and cannot be part of the ongoing “war” the U.S. is waging against the successors of the Taliban and Al Qaeda. Syria’s armed forces aren’t part of Al Qaeda or any of its successors; the 2001 Authorization for the Use of Military Force doesn’t cover Syria. By launching missiles against Bashar al Assad’s military, Trump was crossing an important legal line.
Under the Constitution, the crossing of that line must, either at the time or soon afterwards, involve both of the “political branches” of the government—Congress and the President. Tiresome as it may be to reminded of this, Article I § 8 cl. 11 gives to Congress, not the President, the power “to declare war””—that is, to begin hostilities against another country. The President is designated by Article II § 2 cl. 1 as “commander in chief” of the armed forces. By implication—and, from what we can tell from the founding-era materials, by design—this gives a president power to respond to emergencies and what James Madison called “sudden attacks.” This, however, is a narrow, temporary exception to Congress’s plenary power over war and peace, not a backdoor to full-scale warfare.
Some people believe War Powers Resolution changes this constitutional calculus—“giving” the President power to commit military forces for up to 60 days. It doesn’t. The Resolution in its first section repeats that the president’s commander-in-chief powers are properly “exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The 60-day limit is an additional limit, not a blank check for short wars.
In a War Powers letter to Congress, Trump said, “I directed this action in order to degrade the Syrian military’s ability to conduct further chemical weapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons, thereby promoting the stability of the region and averting a worsening of the region’s current humanitarian catastrophe. I acted in the vital national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive.”
I don’t know about you, but I can’t extract a legal rationale from that. So far, the biggest nod to law that I have seen is a set of “talking points” issued to administration press relations officials.
Trump hasn’t bothered. And nobody in official Washington has made him pay the slightest price for it.
American domestic law is not the only limit on a president’s power. The United States is bound by the United Nations Charter (a treaty ratified by Congress and incorporated into U.S. law by statute) to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” without the explicit permission of the United Nations Security Council. The only exception is for immediate cases of “collective or individual self-defense” against armed attack “until the Security Council has taken the measures necessary to maintain international peace and security.” The attack on Syria was not authorized by the Security Council; the United States did not even ask for authorization. It is not a response to an armed attack against the United States; it’s not an act of self-defense by a collective body. In fact, what is most striking about the international aspects of the Syria mission is the utter contempt it displayed for the U.N., for America’s allies, and for NATO.
That matches the contempt Trump has shown for the American people. Bill Clinton and Barack Obama both crossed the line of executive authority in war matters—Clinton in Kosovo in 1999 and Obama in Libya in 2014. But at least, both presidents provided comprehensive public explanations of the legal authority they claimed for the strikes.
The first thing a president should do—and, as far as I can tell, every president before Trump has done after an intervention like this—is explain himself to the nation. What was the objective of the intervention? When will it end? How will we know whether it has succeeded? Administration officials’ explanations to the press have been varied and inconsistent: deterring new uses of chemical weapons, degrading Syria’s capability to produce more weapons, giving voice to international outrage to Assad’s crimes, and, finally (and most plausibly) simply expressing Trump’s personal outrage at televised images of dead children.
In fact, Trump seems to believe the use of force is his personal prerogative—involving his emotional needs and what he recently called “my military.” The closest thing we have gotten to a plan for the Syrian situation has come from U.N. Ambassador Nikki Haley: “If he needs to do more, he will do more.”
To be clear: there’s a case that Trump actually had the authority to take action in Syria. I don’t agree with it, but I respect those who do. There is, in my judgment, no case that Trump doesn’t need to explain to Congress and the nation what he has done with America’s armed forces, why he believes it was legal, what he plans to do next, and what he hopes to achieve.
On this matter, Congress and the preening “watchdogs” of the press and cable news have surrendered to Trump without firing a shot.
Why would he hesitate to do whatever he feels like the next time he is challenged?
That to me is as scary as that imagined long walk home.
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