Last month, the administration responded to new reports that Bashar al-Assad had used chemical weapons with another missile strike on Syria. Defense Secretary James Mattis stepped up to offer a constitutionally preposterous justification: “As our commander in chief, the president has the authority under Article II of the Constitution to use military force overseas to defend important United States national interests. The United States has vital national interests in averting a worsening catastrophe in Syria, and specifically deterring the use and proliferation of chemical weapons.”
Um, no, Mr. Secretary, not so much. In my judgment, under both the Constitution and the War Powers Resolution of 1973, the president may legally use military force only when authorized to do so by Congress, or in immediate response to an attack on the United States, its forces abroad, or our treaty partners. By that measure, the Syria strikes were flatly unconstitutional.
Such authorization as our current military efforts possess comes from statutes passed by Congress in 2001 and 2002. The 2001 Authorization for the Use of Military Force authorizes force against “nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the 9/11 attacks, or who “harbored” those attackers. The 2002 AUMF authorizes the president to use “necessary and appropriate force” to “defend the national security of the United States against the continuing threat posed by Iraq” and enforce United Nations resolutions “regarding Iraq.”
Neither resolution mentions Syria; neither mentions new terrorist groups—such as ISIL—formed after the 9/11 attacks. Thus the Obama administration’s operations against ISIL, including those inside Syria, were already pushing the law to the breaking point. Trump’s direct attacks on Syria push them, as we say back home, way yonder too far.
Corker-Kaine seeks to remedy the fuzzy legal situation of our battle against nonstate organizations like ISIL. At the same time, it seeks to ensure that operations against terrorist groups cannot be leveraged into attacks on foreign states or governments.
As negotiated by the two senators, the bill would partially repeal the 2001 AUMF, leaving in place only the authorization of “necessary and appropriate force” against a few nonstate groups. The current 9/11 AUMF includes “nations” as potential targets if they “harbor” terrorist groups: This one explicitly says that terror groups targeted cannot include a “sovereign state.” Corker-Kaine would also completely repeal the 2002 AUMF. That statute mentions Iraq; creative executive-branch lawyers might use it as authority to attack a neighboring nation—say, Iran or Syria—the administration accuses of interfering in Iraq.
The bill also authorizes the use of force against a specific list of five additional terror groups, called “associated forces” because they must in some way be associated with the current groups and be fighting alongside them. (Thus, the president could not designate a South American guerrilla group, or the North Korean cheerleading squad, as an “associated force.”) Three of the groups are newish offshoots of Al Qaeda (in Arabia, Syria, and northwest Africa); also included are Al Shabaab, based in Somalia, and the Haqqani Network, which is based in Pakistan and fights in Afghanistan. The president can also designate other groups as “associated forces” within 30 days of passage of the resolution. The president can use force against these groups in Afghanistan, Iraq, Syria, Somalia, Yemen, or Libya. The president must report to Congress promptly if he chooses to designate any new group as an “associated force,” or chooses to authorize the U.S. military to combat “associated forces” in any other country.