Unless you have been sleeping under a rock, by now you know that on Thursday night, President Donald Trump authorized and the US military carried out a strike against a Syrian air base using 59 Tomahawk missiles.
“On Tuesday, Syrian dictator Bashar al-Assad launched a horrible chemical weapons attack on innocent civilians using a deadly nerve agent. Assad choked out the lives of helpless men, women, and children,” Trump said from his Mar-a-Lago Resort in Florida. “Tonight, I ordered a targeted military strike on the airfield in Syria from where the chemical attack was launched. It is in the vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.”
We are not a foreign diplomacy blog. While we try to understand the players and their actions, we do not pretend to have the knowledge or understanding in everything that happens. For that we turn to other sources such as The Diplomad, who served in the State Department both here and abroad and across several administrations. Prior to the attack, he wrote:
Before we do “something” about Assad, let’s hope that the President is getting good intel about what is and is not happening in Syria. Perhaps our intel agencies can be distracted from what apparently has been their primary mission for the past eight years, i.e., listening to every phone in America and smearing the Democrats’ political opponents, to developing as accurate a picture of events in Syria as possible. I don’t want us marching into a war on the basis of NGO and press reports–please, remember to “Remember the Maine!”
Did Assad/Russia carry out a gas attack? What’s the evidence pro and con? If so, what’s that say about the “deal” Kerry brokered with Moscow? Why would Assad use gas when other just as lethal means are at his disposal and attract less attention, especially when Abdullah is in Washington? And above all, what US interests are threatened? Do we want to knock Assad off his perch? Who or what would fill the vacuum? Let’s remember Libya, shall we? Are we risking a shooting war with Russia over Syria? America First, remember?
We agree with that assessment but not just because it makes sense, but because he lays out a part of the case for the legal intervention and or attack on Syria.
It is that legal issue that concerns us now.
If the President were to seek a declaration of war with another nation, he has the Constitutional duty to go to Congress and ask for it. But the Constitution was written at a time when wars were declared and then months later the actual fighting took place. Clearly that is not the case in today’s world where nations can strike within hours. Therefore, in response to a “smaller world,” Congress passed the “War Powers Act,” giving the President the ability to initiate and respond to threats and armed conflicts while awaiting for Congress to act.
The War Powers Resolution (also known as the War Powers Resolution of 1973 or the War Powers Act) (50 U.S.C. 1541–1548) is a federal law intended to check the president’s power to commit the United States to an armed conflict without the consent of the U.S. Congress. The Resolution was adopted in the form of a United States Congress joint resolution. It provides that the U.S. President can send U.S. Armed Forces into action abroad only by declaration of war by Congress, “statutory authorization,” or in case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” (Emphasis ours.)
The problem that we see is that none of the conditions for the President to initiate a military under the War Powers Act were met.
Was there a Congressional declaration of war?
Was there “statutory authorization?”
Was there a “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Once again. No.
We, like many, cannot find a legal authority for the strike against Syria.
That conclusion leads us to many questions and answers.
First, one of the things in which we believe is “what is moral may not be legal and what is legal, may not be moral.” We would never be ridiculous enough to think that alleged use of gas against a civilian population is moral or legal. The question then becomes “even assuming that the Assad regime was responsible for the gassing of the civilians, was it legal to strike into Syria?” Does the President have the right to break US laws in order to retaliate or make a point? Does the President have the right to initiate an act of war against a country that has not attacked the US or US allies?
And yes, this was an act of war. Our friend Dana over at Patteico’s Pontifications links to an article by Charles C. W. Cooke appearing in the National Review on the subject of “acts of war.” Cooke writes:
As far as I can see, the argument against David’s position is that this isn’t an “act of war,” it’s a “minor military action” or “merely a bombing raid,” or a “only targeted strike.” I find this rejoinder laughably unconvincing — as, I think, would Americans were the roles reversed. If a country were to lob 59 missiles at an U.S. military installation in the middle of the California desert, we would rightly regard that as an “act of war.” We certainly wouldn’t say, “don’t worry, it’s just a minor military strike.”
Does the fact the Syria’s government is gassing its own people change that? No, it does not. Why not? Because the question here isn’t whether America is morally justified in hitting Assad’s air bases (it is), or whether doing so is a good idea (it may be), or whether America is a more virtuous country than Syria (it is). Rather, the question is of constitutional legality. If the United States had been gassing Americans in Hawaii at the time Japan hit Pearl Harbor, that strike would still have been an act of war — yes, even if Japan had used it as its casus belli – and Americans would have rightly seen it as such. We should not set a double standard when the roles are reversed. If we need to hit Assad, I’m open to the argument. But Congress must be asked for permission.
Secondly, we, like many conservatives, decried President Obama’s disdain of the Constitution and laws of the United States. Whether it was using the IRS to attack political opponents, illegal appointments, regulations, etc, having a “pen and a phone” never gave Obama the legal authority to what he often did.
The same holds true for President Trump.
Just because he is sitting behind the Resolute Desk does not give Trump the authority to act outside of the Constitution and the laws of the land – even if we agree with his actions on moral grounds.
We expect, no, we demand that our Presidents and leaders follow the law. When they do not, there is no reason for the rest of us to do so either.
For us to condemn Obama for his actions outside of the law and not do the same for Trump would be hypocritical on our part and we aren’t into hypocrisy.
Third, the UN was set up to be the body that would handle these types of situations. It was the UN that was supposed to protect people and civilians from atrocities such as the gassing in Syria. If they could not protect, they are supposed to respond with authorized and legal actions against those who killed the people.
Yet the UN doesn’t want to do that. Instead of the neutral authority it was intended to be, the UN has become politicized to the point where there will be no response to the gassing itself. After all, the UN had demanded the banning of gases such as the one used in Syria long ago. If the UN carried any weight, there would be no lethal gases to be used.
So after 1300+ words, where does that leave us?
1) We believe the attack ordered by Trump was outside of the US Constitution and US law.
2) Morally, the people who ordered the gassing of civilians and those who carried out the gassing of civilians are scum and need to pay a price for their actions.
3) We believe that deep down in the souls of even left leaning members of Congress, they find the gassing morally, ethically and legally repugnant and wrong. However, they are willing to sell their souls in order not to support any sort of attack that Trump would have asked for because he is Trump.
4) We wish that Trump would have gone to Congress to get an authorization, but could not because the hatred of the left against him would have resulted in security leaks and a media campaign against the missile attack, even though the attack was probably the right thing to do on a moral basis.
Time will tell how this all plays out, but there has to be a better way than this attack played out.