[Jennifer Trahan is an Associate Clinical Professor of Global Affairs at NYU-SPS.]
President Obama’s speech on September 10
th raised many legal issues, including, whether there needs to be added Congressional authorization for the use of force, or one can utilize the pre-existing Authorization for the Use of Military Force (“AUMF”) that Congress granted after 9/11 (see
Deborah Pearlstein’s post and
Peter Spiro’s). But his speech also raised profound questions at a second level – that of public international law (touched upon by
Kevin Jon Heller).
This may not seize the attention of the American public, but surely coalition partners would ask these questions: what was Obama’s basis for the legality of air strikes in Syria?
It is somewhat troubling that President Obama took the step of supporting air strikes in Syria, without articulating any clear legal foundation at the international level. Just to be clear, the issue of air strikes
in Iraq against the Islamic State in Iraq and Syria (“ISIS”) does
not raise similar questions, as Iraq had earlier consented to the use of force.
There are a number of possible legal rationales for air strikes in Syria, but the U.S. needs to make the case under one of these grounds. Such a legal foundation was not well-articulated in President Obama’s speech.