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Trump’s Illegal Attack

Marty Lederman spells out [1] why the attack on Syria is illegal under international and domestic law:

In this case, however, Congress has not authorized the attacks on Syria, or otherwise made the solemn decision that the U.S. should breach the Charter. Therefore, not only has President Trump put the U.S. in breach of its treaty obligations — in violation of his Article II obligation to take care that the treaty is faithfully executed — but he has also likely violated the constitutional allocation of war powers, too.

This isn’t the first time that an American president has ordered military action that violates the U.N. Charter, but that doesn’t make it any less illegal now. Clinton did this in 1999 when he ordered the bombing of Yugoslavia, but because it was deemed a “good” intervention its blatant illegality was ignored. Unfortunately, the mostly positive reaction to Trump’s decision to attack the Syrian government means that his brazen violation of the U.N. Charter will be similarly overlooked. This is unfortunate for many reasons. Trampling on the U.N. Charter is harmful enough on its own, but it is even worse when that violation is celebrated for upholding an international norm. Norm-enforcement isn’t a good reason to violate the Charter, and even if the norm-enforcement “works” it comes at the high cost of breaking international law. Trump’s action also provides another precedent that later presidents can use for their own illegal wars in the future.

Predictably, many of the same people that worried that Trump would wreck the “international order” are thrilled that he is violating the U.N. Charter because he is doing it by attacking a government they have wanted to attack for years. Then again, many of the people that have been touting the virtues of “international order” have never cared whether the U.S. was adhering to the rules of that order, and that is on display once again for all to see.

Lederman concludes:

There is no apparent justification for President Trump not to have asked Congress for such authorization here, and to have held off on the strikes until receiving such authorization. Therefore, this might turn out to be the rare case in which the President simultaneously violates both the Constitution and the Charter.

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20 Comments To "Trump’s Illegal Attack"

#1 Comment By Victory over Eurasia On April 7, 2017 @ 10:51 am

Ha! Stinkin’ laws are for wimps and democrats….. real men just do what they feel!

#2 Comment By Robert On April 7, 2017 @ 10:54 am

It was enlightening last night that npr, for the first time, had positive coverage on trump. It does not bode well for the next four years that it’s this that finally got him the ego stroking from the establishment that he so desperately craves.

#3 Comment By Lee Timmer On April 7, 2017 @ 10:59 am

I agree that the president has overstepped his authority according to the Constitution, but since when does a conservative give a damn about a U.N. charter?

#4 Comment By Flavius On April 7, 2017 @ 11:04 am

It didn’t take long: the neo-con deep state took Trump into its maw and swallowed. The only question is whether he went down whole or whether some little part of him ecaped. I’m not optimistic. If there is any consolation, it is Clinton would have done the same thing. Small consolation: our politics throws up a choice between an intemperate oaf and an intemperate card playing grifter. It’s bad today, and likely to be worse tomorrow.

#5 Comment By liberal On April 7, 2017 @ 11:17 am

At the liberal blogs I visit (given I’m a left/liberal), most people believe that the US has the right to commit acts of war without UN Sec Council approval, if we deem them sufficiently heinous. And these are people who are less war-like than Democratic leaders.

Sadly for our species, the fraction of even educated people who have real wisdom on this matter seems rather small. It’s nice to read Larison and see there are other people out there who aren’t bonkers, but frankly, this whole thing makes me feel very lonely.

#6 Comment By Jack On April 7, 2017 @ 11:18 am

Daniel,

I’m not sure how to best contact you, but I’d like to try here before your twitter.

I was wondering if there were measures you would support to contain Syrian war crimes. Based on your support for UN norms, you seem to be a sort of internationalist, albeit a very noninterventionist one. Is this a mischaracterization?

Does the US, other states or an international body have a role to play in minimizing damage/ensuring just war in Syria? How can it be done effectively? Do you trust some group to do it?

Your foreign policy is very interesting to me, though I think I can predict your positions better than understanding the rationale. I have trouble agreeing with the hardline isolationists who reject any sort of interaction between sovereign states (i.e. ignore a country’s wrongdoings). I have some sympathy for the Gulf War and really struggle to see why someone shouldn’t’ve stopped Iraq. Really, what I want to know is if you’re principally opposed to invasion, or just often so on pragmatic grounds (seeing as how the US isn’t the king of the world).

Thanks,

Jack

#7 Comment By Daniel Larison On April 7, 2017 @ 11:40 am

“since when does a conservative give a damn about a U.N. charter?”

We ratified the Charter, and that gives it the force of a treaty and part of our own laws. If our government violates the Charter, it is also violating its own duties under the Constitution. We are obliged to respect it as long as we remain members of the U.N. More generally, I think the Charter’s prohibition against the use of force by one state against another except for self-defense is a good standard for how states should conduct themselves, and it contributes to international peace and security. Even if we weren’t members of the U.N., it would a good standard to adhere to.

#8 Comment By rayray On April 7, 2017 @ 11:53 am

@Jack
Just so the context is clear…Syria has been committing war crimes the entire duration of this war. As I’m sure everyone on this blog knows, generally bombing the civilian population, bombing civilian hospitals, schools, cluster bombs, chemical attacks, have all become shocking regular.

One may quibble with Obama’s military decisions, I certainly do, but there were multiple reasons why he decided against military options against Assad:

1. There’s little or no other option to Assad. While there was a genuine democratic opposition to Assad early on this was quickly coopted by militant Islamist organizations. Thus, should Assad be toppled we would find ourselves in, best case scenario, a Libya-like situation. Or worse, an Iraq-like situation. Obama saw no good way forward.

2. Russia has become an active military supporter of the Assad regime, thus any action against Assad has the danger of pulling us into a proxy war with Russia.

3. Any military action is likely to exacerbate the already difficult refugee situation.

4. Given all of the above, the only solution is going to be diplomatic. Any diplomatic solution is going to have to involve Russia, regional powers like Iran, and the UN. All of which could conceivably be alienated by any military action.

5. Finally: Syria is not a threat to the US.

#9 Comment By liberal On April 7, 2017 @ 12:04 pm

Agree completely with what rayray said.

#10 Comment By SteveM On April 7, 2017 @ 12:42 pm

I would further emphasize the control the National Security State apparatus has over Trump. And here’s a very important subtext I think. The Security State Nomenklatura almost uniformly supports the warped and unconstitutional concept of an unbounded executive. The Elites in that milieu march in ideological lockstep.

In other words, top brass like Mattis and McMaster who are theoretically educated citizens would be aware of the Constitution and the separation of powers. And the risks of suggesting unconstrained military authority to the President. I.e., they would integrate those axioms into their decision calculus.

But to the Pentagon and other Security State apparatchiks, the Constitution is only something to be circumvented. And that position underlies any advice that they give to Trump (or any President.)

So the President not only has to be agile enough to defend against political attacks for acting prudently and within the confines of the Constitution, he/she also has to have the insight and healthy suspicion to challenge the military leadership that whispers those sweet war-monger nothings in his ear.

Trump is a complete failure in those dimensions.

#11 Comment By Viriato On April 7, 2017 @ 2:34 pm

“Then again, many of the people that have been touting the virtues of “international order” have never cared whether the U.S. was adhering to the rules of that order, and that is on display once again for all to see.”

Well, when the U.S. is the world’s policeman, it cannot be bound by the rules of the international order. The rules are for normal nations.

That is why I believe that the UN should be the world’s policeman. That is the only way to order all nations of the world according to international law. Furthermore, no one nation has the moral legitimacy to be the policeman of the world.

#12 Comment By rayray On April 7, 2017 @ 2:55 pm

@Viriato
You will be pilloried by a certain segment of the Conservative contingent for such a statement but it seems right to me. Make the USA the world’s policeman is a bad idea both from the standpoint of moral authority and cost. The UN, whatever it’s flaws, was literally created to help achieve that. It ought to be supported by us to do that.

#13 Comment By Jack On April 7, 2017 @ 3:19 pm

@rayray

Yes, Larison’s foreign policy has gotten me away from being reflexively in favor of whatever the Republicans tend to support. His school of FP has convinced me we tend to exacerbate any conflicts we enter, and I’ve become a lot less supportive of intervention (if at all).

I’ve talked to some people, borderline isolationists, who say that we should more or less ignore Assad’s crimes because he’s not a threat to us. Maybe they’re right, but it’s a hard pill to swallow. Then of course, there’s the drum beaters praising Trump. I guess I just wanted to see if there was middle ground who agreed with your fourth point, that someone should tell Assad to chill a little.

#14 Comment By SteveM On April 7, 2017 @ 3:29 pm

FYI, Phil Giraldi’s take on this (podcast):

[2]

#15 Comment By R.S. Rogers On April 7, 2017 @ 3:44 pm

Trump acted on Syria well within the bounds of long-established executive practice. This kind of constitutional violation is only against the law if Congress acts to assert its authority, and Congress hasn’t done so since the 1970s. If American law were based on the Napoleonic Code, we could just look at the plain text of the Constitution, compare the president’s actions to it, and find him obviously in violation. But this being America, where the law is established as much by practice as by the plain text of statute, it’s not clear at all that President Trump has acted beyond his authority.

For me, the more interesting question is why the officers of the uniformed military obeyed the president’s order. It may seem a little thing for this president to order a relatively small attack on precisely the same grounds of legal justification that all of his recent predecessors have ordered similar attacks. But if this order must be obeyed, then there is no conceivable order of deadly force outside U.S. territory that can be disobeyed. Why was there no admiral who said to the president, no captain who said to his commanding admiral, “Under what statutory authority from the Congress of the United States is this order given?” And, there being none, refusing to carry out the order?

#16 Comment By rayray On April 7, 2017 @ 4:39 pm

@Jack
100% agreed. I would love to find a way to use whatever influence could be cobbled together through Russia, Turkey, Iran, Jordan, etc. to put pressure on Assad to come to the table and figure out how to end this conflict. That said, it would take a sharp and empowered state dept to make it work. I believe Rex Tillerson has the smarts, and his Russian connections may actually come in handy here, but his dept has become a joke under Trump.

#17 Comment By EliteCommInc. On April 7, 2017 @ 7:09 pm

” That said, it would take a sharp and empowered state dept to make it work. I believe Rex Tillerson has the smarts, and his Russian connections may actually come in handy here, but his dept has become a joke under Trump.”

Grrrrrrrrr . . .

Gentlemen, the situation that exists now is the direct result of powers outside of Syria who have fomented revolution by way of weapons, cash and materials, including chemical weapons. I am supposed to come to the table with people who are trying to kill me. I beg your pardon.

Look, I am certainly all for a sit down. But putting any weight on the shoulders of Pres Assad is over the top as to expectation. What should be happening is that the US should cease and desist supporting the revolution for the reasons previously stated. We should immediately withdraw all US military personnel and extricate ourselves from the affairs o a state poses no threat to the US or her allies.

As for Sec Tillerson, his rhetoric is nonsense. Pres Assad should go if the people of Syria make that choice however they so choose. That is a matter between Pres Assad’s admin and the people of Syria.

All of the chatter about being brutal mean, killing his own people, wanton war crimes is beyond the pale. I don’t know what it takes to govern in this region, but history suggests it’s a very tough slog. I am becoming increasingly convinced that we just don’t have enough knowledge or data to know what is going on beyond what we are told by those whose agenda is to use the US to topple another state.

If I attempt to kill the leadership, I should be prepared for an in kind response.

#18 Comment By rayray On April 8, 2017 @ 1:40 pm

@EliteComminc
“I am supposed to come to the table with people who are trying to kill me. I beg your pardon.”

if you mean like every cessation of hostilities treaty ever negotiated, then yes.

#19 Comment By Sheila Panettiere On April 9, 2017 @ 11:02 pm

@rayray There was no investigation as to whom was responsible for the recent attacks. But the very fact that the entire conglomerate media system came out to state that it was Assad, is not just not real journalism, it is also clearly a propaganda maneuver. Also, can you explain the tactical purpose behind killing civilians after he was gaining an advantage over the ‘rebels’, and right after Tillerson declaired that we were no longer pursuing regime change? Do you believe that he is so stupid to not realize the repercusions from the international community of such an action?

#20 Comment By David Vinch On April 10, 2017 @ 7:51 am

[3]
Please sign my petition and share it, if we can get enough signatures he is required to respond.