Counterpoint: Trump’s Syria Strike Was Unconstitutional and Unwise

Early the morning of August 21, 2013, six densely populated neighborhoods in Syria “were jolted awake by a series of explosions, followed by an oozing blanket of suffocating gas,” the Washington Post reported at the time. “Unknown to Syrian officials, U.S. spy agencies recorded each step in the alleged chemical attack, from the extensive preparations to the launching of rockets to the after-action assessments by Syrian officials. Those records and intercepts would become the core of the Obama administration’s evidentiary case linking the Syrian government to what one official called an ‘indiscriminate, inconceivable horror’—the use of outlawed toxins to kill nearly 1,500 civilians, including at least 426 children.”

Days later, President Obama declared that he was ready to order a military strike on Syria to punish its leader, Bashar al-Assad, for using chemical weapons while waging civil war, but added that as “president of the world’s oldest constitutional democracy,” he would consult Congress. Legislators never did vote to approve a strike, in part because the American public did not want to intervene militarily in Syria.

And a bitter Obama Administration critic, Donald Trump, took to Twitter to weigh in. “If Obama attacks Syria and innocent civilians are hurt and killed, he and the U.S. will look very bad!” the real estate developer wrote. “What I am saying is stay out of Syria,” Trump added days later. “AGAIN, TO OUR VERY FOOLISH LEADER,” he emphasized, “DO NOT ATTACK SYRIA - IF YOU DO MANY VERY BAD THINGS WILL HAPPEN & FROM THAT FIGHT THE U.S. GETS NOTHING!”

Most importantly, Trump Tweeted this:

What will we get for bombing Syria besides more debt and a possible long term conflict? Obama needs Congressional approval.

— Donald J. Trump (@realDonaldTrump) August 29, 2013

Trump explicitly understood that a military response would require congressional approval. Yet Thursday, Trump ordered a strike on Syria without seeking that approval, citing a chemical weapons attack by the Assad regime. “Fifty-nine Tomahawk missiles were fired from American destroyers in the eastern Mediterranean at Al Shayrat airfield,” The New York Times reported. The cost in missiles alone was roughly $50 million.

There are those who supported the president’s actions.

Prior to the strike, various members of the military-industrial complex, hawkish pundits, and social-media users outraged by killings of Syrian civilians demanded that Trump do something in response to the abhorrent slaughter of innocents. But Trump never swore to slake a vocal minority’s outrage. He swore to uphold the Constitution. And if his 2013 statement on bombing Syria left any doubt as to whether he understood the proper role of Congress, he had lots of reminders prior to Thursday.

Back in 2013, “more than 100 House lawmakers––at least 98 Republicans and 18 Democrats––signed on to a letter formally requesting that President Obama seek congressional approval for any military response to the use of chemical weapons in Syria,” the Washington Post reported. “The letter, first written by Rep. Scott Rigell (R-Va.), suggests that failure to seek congressional authorization for military strikes would be unconstitutional.”

That warning was reasserted this week. Senator Mike Lee, a Utah Republican, put it this way:

If the United States is to increase our use of military force in Syria, we should follow the Constitution and seek the proper authorization from Congress. President Trump should make his case in front of the American people and allow their elected representatives to debate the benefits and risks of further Middle East intervention to our national security interests.

Senator Rand Paul, a Kentucky Republican, said “the president needs congressional authorization for military action as required by the Constitution, and I call on him to come to Congress for a proper debate." He added, "Our prior interventions in this region have done nothing to make us safer and Syria will be no different."

Senate Foreign Relations Committee Chairman Bob Corker told CNN’s Jack Tapper that President Trump should “certainly come to Congress” before acting in Syria.

And elected officials were not alone.

“If Article I, Section 8, Clause 11 of the United States Constitution means anything, it means that the president must obtain congressional approval before taking us to war against a sovereign nation that has not attacked the U.S. or its allies and is not threatening to attack the U.S. or its allies,” declared National Review’s David French, who served in the Judge Advocate General's Corps during the Iraq War.

“There is no reason to forego congressional debate now, just as there was no reason to forego congressional debate when Obama considered taking the nation to war against Syria in 2013,” he explained. “Congressional approval is not only constitutional, it serves the public purpose of requiring a president to clearly outline the justifications for war and his goals for the conflict. It also helps secure public support for war, and in this instance it strikes me as reckless that we would not only go to war against a sovereign nation, we’d also court a possible military encounter with a great power.”

Other commentators made a substantive case against a strike. Robert Farley was especially succinct:

In brief, why not:

• It is a struggle to understand a way in which an attack on Syria is legal, barring an act of Congress.
• It seems unlikely that airstrikes alone will be sufficient to unseat the Assad government.
• The Assad government has sufficiently strengthened its position in the last year such that it seems unlikely that airstrikes will tip the balance in favor of Syrian rebels.
• There is no reason to believe that President Trump has sufficient self-control to manage a limited air campaign that fails to destroy the Syrian government.
• There is no reason to believe that a strong constituency exists in Syria for a prolonged American ground occupation.
• The Syrian rebels are deeply factionalized, and have become increasingly radicalized; it is not obvious that the Assad government would be replaced by a central government at all, or that such a government would be meaningfully preferable to Assad.
• While Russia is unlikely to directly oppose US strikes, the risks of accidental escalation are nevertheless present.

These are all issues that the Obama administration wrestled with for five years, to no particularly good resolution. They are issues that Hillary Clinton had no particularly good answer for.  They have not changed for the better since Trump’s inauguration.

Combine all of these factors:

• Strong substantive arguments against a strike.
• Risk of escalation into a major powers conflict.
• Dubious legality.
• Multiple members of Congress preemptively expressing skepticism about the legality.
• The president himself formerly declaring congressional approval would be necessary for such a strike.

If there are no consequences for a president who unilaterally orders military action under all those conditions, what use is a Constitution that vests the legislature with the war power? Yet much of the political press acts as if the war power is not even contested.

Take David Sanger’s news analysis in the New York Times, “Striking at Assad Caries Opportunities, Risks for Trump.” The article confidently asserts that “the Syria action gives the Trump administration an opportunity to demand that Mr. Putin either contain or remove Syria’s leader, Bashar al-Assad, or else Mr. Trump will expand the limited American military action—and quickly—if the Russian president fails to do so.” (Did the strike give Trump that opportunity? No evidence is presented for that conclusion.) The construction frames future interventions in Syria as if they are Trump’s prerogative. Even the part of the article dedicated to the risks that Trump assumed in striking does not so much as mention the matter of legality.

Why is that critique ignored even as elected officials make it?

Airstrikes are an act of war. Atrocities in Syria cannot justify departure from Constitution, which vests in Congress power to commence war.

— Justin Amash (@justinamash) April 7, 2017

And why did so many in the media call the Syria strike “surgical”?

before any verified reporting of the impact of the missile strike, every media talking head and politician is calling them "surgical" pic.twitter.com/d81KwQVnTf

— Lee Fang (@lhfang) April 7, 2017

As I've explained before at great length, that characterization is Orwellian propaganda.

Congress erred by doing nothing when Obama waged war illegally in Libya. It will compound that error if there are no consequences now for Trump.  Every legislator who has expressed the belief that it would be illegal to strike Syria without their permission should start acting like they meant what they said. Given what recent presidents have been permitted, impeachment over this matter alone would understandably lack popular legitimacy. But I wouldn’t mind if anti-war legislators created a draft document titled “Articles of Impeachment,” wrote a paragraph about this strike at the top, and put Trump on notice that if he behaves this way again, a coalition will aggressively lobby their colleagues to oust him from office.

The alternative is proceeding with an unbowed president who is out of his depth in international affairs, feels entitled to wage war in ways even he once called illegitimate, and thinks of waging war as a way presidents can improve their popularity.

Or as Trump himself once put it:

Now that Obama’s poll numbers are in tailspin – watch for him to launch a strike in Libya or Iran. He is desperate.

— Donald J. Trump (@realDonaldTrump) October 9, 2012

Today, Trump is desperate. He is flailing from failure to failure in domestic policy, with dismal approval ratings and no clear way to increase them—except by trying to exploit the American public’s historic tendency to rally around a president at war. There has never been a stronger case for preemptively reining in a president’s ability to unilaterally launch military strikes on foreign countries that are not attacking us.

To allow a man of Trump’s character to retain that power, after its expansion by decades of presidents who pushed it beyond the bounds of the Constitution, would be folly.