In contrast, if the Constitution was enforced, if the rule of law prevailed and the president was constrained from doing anything that the 2001 AUMF didn’t allow, Congress would have long ago revisited the subject of where America ought to be waging war abroad, and U.S. foreign policy would have more democratic legitimacy. If Petraeus really values those things—and I believe that he does—he should stop praising extra-Constitutional uses of force like the missile strike on Syria.
Update: A representative of David Petraeus writes on his behalf to object that there is no contradiction between valuing the congressional power to declare war and praising Trump’s decision to bypass Congress when ordering an airstrike on Syria. In Petraeus’s view, the president possessed inherent authority to launch the strike.
Here is the representative’s full response:
Your column of June 30th raises an issue of considerable importance to our nation as our brave men and women in uniform engage our enemies around the globe. Thank you for clearly noting General Petraeus’ high regard for the Constitution and for the indispensable role of the US Congress in authorizing the use of military force abroad. He has long believed Congress should update the 2001 Authorization for the Use of Military Force (AUMF) and that in the absence of a new AUMF, both Presidents Obama and Trump have stretched the legal interpretations of the 2001 AUMF far beyond all recognition. In his testimony before the House Armed Services Committee in February 2017, General Petraeus called on Congress to meet its constitutional responsibilities to debate and pass a new authorization for the use of military force to combat the Islamic State in Syria and elsewhere.
However, you seem to misunderstand General Petraeus’ comments on the missile strikes in Syria. The announced legal basis for the strikes on the Syrian airbase from which the chemical attacks emanated was not the 2001 AUMF, but the President’s constitutional (Article II) authority as “Commander in Chief and Chief Executive, for foreign and military affairs, as well as national security.”
Here is the relevant portion of the President Trump press release:
“Tonight, I ordered a targeted military strike on the airfield in Syria from where the chemical attack was launched. 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.
Years of previous attempts at changing Assad's behavior have all failed, and failed very dramatically. As a result, the refugee crisis continues to deepen and the region continues to destabilize, threatening the United States and its allies.”
Thus, the central constitutional issue is whether the President has authority under Article II to unilaterally conduct limited (in scope, scale, duration) military operations to defend the national interest (narrowly defined as the protection of US persons and property). It should be noted that this is an area of contested law. A more expansive interpretation of US national interest has included regional stability, protection of allies, and enforcement of norms against WMD use.
Although the Trump administration did not specifically reference US military members in Syria as justification for the missile strike against the Syrian air base, protecting US soldiers on the ground against future chemical weapons attack would be sufficient justification for unilateral Presidential action under existing Office of Legal Counsel interpretations of Article II powers. Importantly, the number of US troops on the ground has increased since 2013 when the Obama administration’s OLC considered strikes legal and justified.
Thus, General Petraeus’ position is not inconsistent. It is possible to praise a President’s decisive use of Article II authority to protect national interests while also calling for Congress to assert its authority (Article 1, Sec 8 ) to authorize the use of military force abroad. Congress should assert its constitutional prerogatives to define and delimit the use of military force abroad. And the President should continue to use his constitutional authority to protect our service members, allies, and national interests in Syria and elsewhere.