President Joe Biden is facing pressure from fellow Democrats and legal experts for his airstrikes Thursday on targets in eastern Syria linked to Iran-backed militias – that is, because they say he had no real legal justification for the attack.
The administration said the seven 500-pound bombs dropped on the facilities that two militias used to smuggle weapons were designed as a message: Attack US troops in the region and risk retaliation. Over the past two weeks, Iranian representatives have fired rockets at anti-ISIS coalition forces outside Erbil, Iraq, killing a Filipino contractor and wounding US troops, and near the US embassy in Baghdad.
“President Biden will act to protect American and Coalition personnel,” Pentagon spokesman John Kirby said in a statement hours after the attacks, calling them a “proportionate military response.” So far, no deaths have been confirmed – the Pentagon is still assessing that – although US officials said they suspect the attacks possibly killed a “handful” of people.
Democratic congressmen denounced the attacks almost immediately, saying the United States is not at war with Syria and that lawmakers did not authorize any attacks on Iranian-backed militants. As a result, they essentially argue that Biden ordered an illegal pitch.
“Offensive military action without congressional approval is not constitutional in the absence of extraordinary circumstances,” Sen. Tim Kaine (D-VA), a longtime advocate of strengthening the role of Congress in authorizing operations, said in a statement Friday. military. “Our Constitution is clear that it is Congress, not the president, who has the authority to declare war,” Senator Bernie Sanders (I-VT) added Friday.
Criticism continued in the House. Rep. Ro khanna (D-CA), one of the leading proponents of progressive foreign policy, stated: “There is absolutely no justification for a president to authorize a military attack other than in self-defense against an imminent threat without the authorization of Congress.”
Representative Ilhan Omar (D-MN) also highlighted a 2017 tweet from the current White House press secretary. Jen psaki who criticized then-President Trump’s decision to bomb Syria in retaliation for a chemical weapons attack. “What is the legal authority for strikes?” Psaki asked, noting that “Syria is a sovereign country.”
“Big question” Omar he tweeted in response Thursday night.
Vice president Kamala harris, then a senator, also questioned Trump’s bombing of Syria in 2018 after another chemical weapons attack, tweeting: “I am deeply concerned about the legal justification for last night’s attacks.”
While many Republicans were supportive of the attack, the rejection of Biden’s first known attack reflects a decades-long debate about what the president can and cannot do with the world’s largest military. Biden’s decision in Syria has just provided the latest flash point.
Therefore, it is worth analyzing the main arguments of each side. They will dominate not only the discussion about this strike, but also future ones for the next four years.
The attacks in Syria revived the struggle for war powers between the president and Congress
A spokesperson for the National Security Council told me that the administration has two main legal arguments as to why Biden had the authority to retaliate against Iranian-backed representatives operating on the Syria-Iraq border. Both rely on the idea that responding to the attacks of the past two weeks on coalition facilities counts as self-defense.
Regarding domestic law, the spokesperson said that “the president took this action in accordance with his Article II authority to defend US personnel.” Simply put, Article II of the Constitution appoints the President as Commander-in-Chief, which gives him the highest authority over all military matters.
US troops were in danger from the proxies’ actions in recent weeks, so he had every right to defend them from future attacks, the argument continues. Importantly, the White House does not claim to have the authority to drop bombs on Syria, only that the United States had an urgent need to act in self-defense.
Regarding international law, the spokesman said that “the United States acted in accordance with its right to self-defense, as reflected in Article 51 of the UN Charter.” That article establishes, in part, that nothing in UN law “shall affect the inherent right of individual or collective self-defense if there is an armed attack against a Member of the United Nations.” (We will return to the first full sentence in a moment.)
By citing this provision, the administration is essentially making the same argument it did in domestic law: Proxies threatened US troops, so the US has the right to use force to defend them.
However, Congressional Democrats (and some Republicans) are not buying into those arguments. His case, based primarily on domestic law, stems from Article I of the Constitution, which states that only Congress can declare war or authorize military operations. There are some caveats that depend on the situation, but that’s the main point.
Over the decades, Congress has abdicated that authority, rarely receiving war votes, and allowing the president to run the military as he sees fit. The Korean and Vietnam wars, for example, were conducted without congressional approval. And the 2001 authorization approved for green-light operations against al-Qaeda after 9/11 continues to be cited for counterterrorism operations around the world, even when al-Qaeda was not the target.
Lawmakers have slowly begun to regain their authority. In 2019, Congress passed a “War Powers Resolution” to prevent Trump from involving the US military in Yemen. Trump vetoed the bill, however, and without the supermajorities necessary to override that veto, those offensive operations continued until Biden stopped them earlier this month. Still, it was a sign that Congress would rise up against a president who abuses his legal mandate.
Also at odds with Biden’s team are some experts in the law of war.
Mary Ellen O’Connell, Notre Dame professor and co-author of Self-defense against non-state actors, told me that he agrees that the president should come to Congress when there is time to request authorization. In this case, he maintains, since the attacks were not happening now, but occurred during the last two weeks.
That’s something Senator Chris Murphy (D-CT) picked up on in his statement on Friday.
“Retaliatory attacks, which are not necessary to prevent an imminent threat, must be within the definition of an existing congressional authorization of military force,” he said. “Congress should keep this administration on the same level as previous administrations, and require clear legal justifications for military action, especially within theaters like Syria, where Congress has not explicitly authorized any US military action.”
But O’Connell’s main criticism is that the White House got it wrong on international law. As promised, here is the first sentence of Article 51 of the UN Charter in its entirety: “Nothing in this Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the necessary measures to maintain international peace and security ”.
O’Connell said the attack was not against the American homeland, and the United States surely had enough time to work with UN Security Council partners to punish Iran using diplomacy, not force. That means that Biden’s team willfully misinterpreted what that provision says or didn’t understand its true meaning.
“They are citing the correct sources of the law,” O’Connell said, but “they are wildly misinterpreting them.”
“They are undermining its attempt to become a leadership team for the international community in promoting good order, stability and the rule of law,” he concluded.
Of course, the president had more than legal arguments in mind when making his decision to drop bombs. As president, it is your responsibility to protect Americans wherever they are. He certainly didn’t want Iran to believe that it could threaten US troops with impunity. Risking Congress denying an authorization request could send that exact signal to Tehran.
But even Kirby, the Pentagon spokesman, was unable to define what imminent threat US forces faced in Syria or Iraq, except to say that Thursday’s attack was intended to deter future Iranian attacks on Americans.
Which means that the debate over when a president can authorize a strike on his own and when he should ask lawmakers for permission is alive and well during the Biden years. He’s already furious and will surely continue for years to come.
Sign up for The Weeds newsletter. Every Friday, you’ll receive an explainer of a great political story of the week, a look at important research that came out recently, and answers to reader questions, to guide you through the first 100 days of President Joe Biden’s administration.