President Joe Biden is facing criticism from other Democrats and law experts because of his air strikes on Thursday against targets in eastern Syria linked to Iran-backed militias, mainly because they say he had no real legal justification for the attack.
The government said the seven 500-pound bombs dropped on facilities used by two militias to smuggle weapons were designed as a message: Attack US troops in the region and you risk retaliation. In 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 “proportional military response”. So far, no deaths have been confirmed – the Pentagon is still evaluating this – although American officials have said the attacks possibly killed a “handful” of people.
Congressional Democrats denounced the attacks almost immediately, saying the United States is not at war with Syria and that lawmakers have not authorized any attack on Iranian-backed militants. As a result, they essentially argue that Biden ordered an illegal launch.
“Offensive military action without congressional approval is not constitutional, without extraordinary circumstances,” said Sen. Tim Kaine (D-VA), a longtime advocate for reinforcing Congress’ role in authorizing military operations, in a statement on Friday. “Our Constitution makes it clear that it is Congress, not the president, who has the authority to declare war,” added Senator Bernie Sanders (I-VT) on Friday.
Criticism continued in the Chamber. Rep. Ro Khanna (D-CA), a leading progressive proponent of foreign policy, declared: “There is absolutely no justification for a president to authorize a military attack other than in self-defense against an imminent threat without Congressional authorization.”
Deputy 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.”
“Great question,” The sea tweeted in response Thursday night.
Vice president Kamala Harris, then a senator, also questioned Trump’s 2018 bombing of Syria after another chemical weapon attack, tweeting, “I’m deeply concerned about the legal justification for last night’s attacks.”
While many Republicans have shown their support for the attack, resistance to Biden’s first known attack reflects a decades-long debate over what the president can and cannot do with the world’s greatest military personnel. Biden’s decision in Syria only provided the latest flashpoint.
Therefore, it is worth examining the main arguments on each side. They will dominate not only the discussion of this strike, but also future ones over the next four years.
Strikes in Syria revived the struggle between the presidential and congressional war powers
A National Security Council spokesman told me that the government has two main legal arguments to explain why Biden had the authority to retaliate against Iranian-backed representatives operating on the Syrian-Iraq border. Both rely on the idea that responding to attacks over the past two weeks on coalition facilities counts as self-defense.
With respect to national law, the spokesman said: “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, giving final authority over all military affairs.
American troops have been in danger from the prosecutors’ actions in recent weeks and, therefore, 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 has an urgent need to act in self-defense.
As for international law, the spokesman said that “the United States has acted in accordance with its right of self-defense, as reflected in Article 51 of the UN Charter”. This article states, in part, that nothing in UN laws “should undermine the inherent right of individual or collective self-defense if an armed attack against a member of the United Nations occurs.” (We will return to the first complete sentence in a moment.)
In citing this provision, the government is basically making the same argument it made in domestic law: prosecutors threatened US troops, and therefore America has the right to use force to defend them.
However, Congressional Democrats (and some Republicans) do not accept these arguments. His case, based mainly on national legislation, 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 is the main point.
Over the decades, Congress has abdicated that authority, rarely obtaining war votes and, at the same time, allowing the president to manage the armed forces as he sees fit. The wars in Korea and Vietnam, for example, were conducted without Congressional approval. And the 2001 authorization passed for green light operations against Al-Qaeda after 9/11 continues to be cited for counterterrorism operations worldwide, even when Al-Qaeda was not the target.
Legislators slowly began to regain their authority. In 2019, Congress passed a “War Powers Resolution” to prevent Trump from involving the U.S. military in Yemen. Trump vetoed the bill, however, and without the supermajorities needed to overturn that veto, offensive operations continued until Biden interrupted them earlier this month. Still, it was a sign that Congress would rise up against a president who abused his legal mandate.
Also at odds with Biden’s team are some experts in war law.
Mary Ellen O’Connell, professor at Notre Dame and co-author of Self-defense against non-state actors, told me that he agrees that the president should attend Congress when there is time to ask for authorization. In that case, she says, since the assaults were not happening now, but have occurred in the past two weeks.
This is something that Senator Chris Murphy (D-CT) noted in his Friday statement.
“Retaliatory attacks, which are not necessary to prevent an imminent threat, must fit the definition of an existing Congressional authorization for military force,” he said. “Congress must maintain this administration to the same standard as it did with previous administrations and demand clear legal justifications for military action, especially within theaters like Syria, where Congress has not explicitly authorized any American military action.”
But O’Connell’s main criticism is that the White House misunderstood international law. As promised, here is the first sentence of Article 51 of the Charter of the United Nations in its entirety: “Nothing in this Charter shall prejudice the inherent right to self-defense individually or collectively if an armed attack against a United Nations Member occurs, 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 country, and the United States certainly had enough time to work with UN Security Council partners to punish Iran using diplomacy – not force. This means that Biden’s team either misinterpreted what that provision says or did not understand its true meaning.
“They are citing the correct sources of the law,” said O’Connell, but “they are totally misinterpreting it.”
“They are undermining their attempt to become a leadership team for the international community in promoting good order, stability and the rule of law,” she 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 also certainly did not want Iran to believe that it could threaten American troops with impunity. The risk that Congress will deny a request for authorization may send Tehran that exact signal.
But even Kirby, the Pentagon spokesman, failed to define what imminent threat US forces faced in Syria or Iraq, except to say that Thursday’s attack was aimed at stopping future Iranian attacks against 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 is already furious and will certainly continue for years to come.
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