Senators have just emerged from a closed door meeting with Joint Chiefs Chairman Gen. Joe Dunford about yesterday’s strikes in Syria. Yet, according to CNN on-air reporting (as confirmed elsewhere), the administration still has not provided Congress the legal justification for the strikes.
Nor has the President offered a public justification beyond an asserted “vital national security interest of the United States to prevent and deter the spread and use of chemical weapons” – coupled with a concern about how the refugee crisis threatens the United States and its allies.
Of particular concern, the failure to articulate a legal justification for the strikes yields speculation that the President acted without first assessing the domestic and international legal justification for his actions. If so, that would be terrifying. It would suggest a President that deemed himself empowered to engage in the uses of force without constraints imposed by the Constitution’s separation of powers. And it would suggest a President emboldened to use force outside of the constraints imposed by the UN Charter — constraints that recognize the gravity of using unconsented-to lethal force in another nation’s territory and are intended to limit such uses of force accordingly. These are constraints that need to be considered. No matter how right Trump was to respond to Assad’s horrific use of chemical weapons in this instance, next time it might not be so clear.
Alternatively, and much preferably, the President has evaluated and considered the legal constraints, but is hesitant to say too much. This is a huge mistake. To the extent President Trump believes he is on solid legal footing, he should explain why. To the extent (as is it certainly seems) that he is offering a new theory of what constitutes a vital national security interest justifying the use of Article II authorities and/or a novel interpretation of international law, he should articulate that theory and set its parameters. Inevitably, there will be discussion and dissent, and perhaps that is what President Trump wants to avoid. But it is a healthy kind of discussion and debate. And it is much preferable than a theory of unbounded authority that the absence of any articulated legal justification suggests. That is not only damaging, it is dangerous.
Steve Pomper said it perfectly earlier today:
There will invariably be risks in offering an untested argument, even if narrowly framed, but the risks of offering no argument seem greater. Not only would such an approach risk leaving an unbounded hole in Article 2(4) of the Charter, but it would signal that the United States does not believe it needs to justify actions this consequential under international law. That would be a dangerous signal to send about an increasingly fragile international order at an increasingly unpredictable time.
Pomper was talking about international legal justification. The same is true for the domestic law claims. President Trump: The time to lay out your theory is now.
Photo: U.S. Defense Secretary James Mattis (R) and Joint Chiefs of Staff Chairman Joseph Dunford (L) confer with Sen. Jack Reed (D-RI) March 22, 2017 – Win McNamee /Getty