Is Now a Good Time to Go Back to that U.S. War Power Debate?

by Deborah Pearlstein

Cross-posted at Balkinization

Because it’s too easy for our growing war in Syria to get lost amidst other also-pressing news, I want to be sure to note that last week ended with the Senate Foreign Relations Committee formally requesting the Trump Administration’s legal justification for a growing set of clashes between the U.S. military and armed forces allied with Syrian President Bashar Assad. The U.S. military has of course been engaged in anti-ISIL operations in Syria since 2014. But this recent violence – including the incident last week in which the U.S. military shot down a Syrian jet it said was firing on U.S.-allied non-state forces on the ground, as well as multiple U.S. efforts to defend its creation of a “de-confliction zone,” an area in Syria surrounding a garrison used by U.S. Special Forces to train partner forces there – involves the United States far more directly in state-to-state conflict with Syria (and its allies, Iran and Russia) than we have previously undertaken. Apart from the mammoth policy implications of this kind of escalation, it is far from clear what domestic legal authority supports it. In this post, I’ll address the notion that an existing statute authorizes these operations. In a later post, I’ll take up the suggestion the President’s inherent power under Article II of the Constitution does the job.

One possibility the Administration has advanced to justify its recent conduct is that the anti-Syria actions are (at least implicitly) authorized by the 2001 authorization for the use of military force (AUMF), which gave the President the power to use “all necessary and appropriate force” against those nations, organizations or persons he determines were responsible for the attacks of September 11. The Obama Administration indeed relied on the 2001 AUMF for its operations against ISIL in Syria. And while many of us have written critically (e.g. here) about the plausibility of relying on a 2001 AUMF to attack a group that did not come into existence until years after 2001 (and is indeed today the sworn enemy of the group, Al Qaeda, that all agree was responsible for the attacks of 2001), we might just for a moment set those arguments aside to consider the new claim on its own. The new claim is that to the extent the AUMF supports U.S. operations in Syria at all, it surely also must include the implied authority to defend U.S. forces operating there against whomever might subject them to attack.

The notion that the AUMF contains some implied authority for U.S. troops engaged in operations under its auspices to defend themselves against foreign attack is in one sense entirely plausible. If, as the Supreme Court held in 2004’s Hamdi v. Rumsfeld, the AUMF contains the implied authority to detain war prisoners under its auspices because such detention was a recognized incident of the use of force under international law, then surely self-defense of one’s own forces (at least to the extent permitted by international law) should also be within the realm of implied statutory authority. The problem is, U.S. self-defense is not what most (or maybe all) of these recent incidents have involved. (For a nice list of recent actions in Syria, see here.) By the United States’ own account, the Syrian SU-22 we shot down last week was firing on local anti-Assad fighters the United States supports, but there was no indication U.S. forces themselves were remotely at risk. CENTCOM rather explained that the move was in “collective self-defense” of coalition-partnered forces – a concept that appears pulled from Article 51 of the UN Charter (to which the United States is of course party) providing in relevant part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” Even if one were to assume the text of the AUMF should be interpreted with guidance from relevant international law, Article 51 by its terms limits the right of “collective” self-defense to UN member states. Local anti-Assad forces, whatever their merits, aren’t states. More, especially to the extent that what we are doing in establishing our “de-confliction zone” is effectively seizing an area inside Syrian territory for our use and defending it from incursion by Syrian or other forces, we are not engaging in defense (self or otherwise) at all, but rather in the partial armed occupation of another country – which is, without putting too fine a point on it here, the opposite of a recognized incident of force under international law.

So what about finding a relevant implied authority in the AUMF under other principles of statutory interpretation? Ignore international law for a moment – could the AUMF be read based on its text, context or legislative history to authorize the military operations we’ve carried out against Syria and Iran on behalf of anti-ISIL allies here? To pursue this theory, it is impossible to look just at the Administration’s latest interpretive move, but rather at the set of inferences one would have to draw from the AUMF itself. For buying the notion that the 2001 AUMF authorizes U.S. bombing of Syrian aircraft or Syrian-allied forces in Syria in all the circumstances we have in recent weeks requires us to embrace not just one dicey inference, but three: (1) that a statute limited by its text to authorizing force against the groups that attacked us in 2001 extends to a group that did not exist in 2001 (and is itself at war with the group that did attack us in 2001); (2) that the statute includes some implied authority to defend our own forces from attack not only against those nations and organizations the statute authorizes us to fight, but as against any nations and organizations anywhere worldwide our AUMF operations, whether or not our assertion of self-defense complies with international law; and (3) that statute further authorizes us to “defend” any local group with which we might ally in the course of global AUMF operations – up to and including apparently excluding a sovereign state from its own territory for the purpose of carving out some training space for the local group.

It is, to put it mildly, implausible that the Congress that passed the 2001 AUMF thought it was authorizing all this. The textual limitation of the 2001 AUMF to the groups responsible for the attacks of 9/11; the Charming Betsy canon of interpretation and others that would favor reading a statute to accord with our binding treaty obligations where possible; and the total absence in legislative history of any intention to authorize force against Syria and Iran – all weigh against any such construction. Which leaves us, alas, with the President’s power under Article II of the Constitution. I’ll pick up in a future post there.

http://opiniojuris.org/2017/06/26/is-now-a-good-time-to-go-back-to-that-presidential-war-power-debate/

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