This morning, the Justice Department’s Office of Legal Counsel has posted online a formal, 22-page opinion (by Steve Engel, the Assistant Attorney General in charge of OLC) concluding that the April 13 airstrikes on Syria were lawful. In a nutshell:
the President had the constitutional authority to carry out the proposed airstrikes on three Syrian chemical-weapons facilities. The President reasonably determined that this operation would further important national interests in promoting regional stability, preventing the worsening of the region’s humanitarian catastrophe, and deterring the use and proliferation of chemical weapons. Further, the anticipated nature, scope, and duration of the operations were sufficiently limited that they did not amount to war in the constitutional sense and therefore did not require prior congressional approval.
I’m sure folks will have plenty to say about OLC’s analysis (which, per the letter, is the formalization of guidance it issued prior to the April attacks). In this (preliminary) post, I just want to offer five brief reactions:
- Most of the work is done by the opinion’s analysis of the Declare War Clause (pp. 3-9), and its (deeply related) conclusion that the President categorically does not need congressional authorization before engaging in military action so long as the action falls short of “war” in the constitutional sense. The opinion is certainly correct that there have been numerous examples of unilateral presidential uses of force, and that many of those were defended on the ground that the force didn’t rise to the level “war” in the constitutional sense. But I’m unfamiliar with a prior OLC opinion quite so aggressively asserting that the entire constitutional inquiry rises and falls on whether the use of force is “war” or not. (Under the War Powers Resolution, the relevant threshold is the broader term, “hostilities.”)
- With regard to why the April Syria strikes didn’t rise to the constitutional level of “war,” the opinion (pp. 18-22) focuses on “the absence of ground troops, the limited mission and time frame, and the efforts to avoid escalation.” It asserts that those criteria are sufficient (they’re certainly at least necessary), but, in the process, appears to conclude that no congressional authorization is necessary for any use of force satisfying those criteria, so long as the use of force is “in the national interest.”
- As for the “national interest,” the opinion (pp. 10-18) identified three different justifications (none of which it tied directly to self-defense): “a grave risk to regional stability, a serious and growing humanitarian disaster, and the use of weapons repeatedly condemned by the United States and other members of the international community.”
- The opinion does not even nod toward the specter of statutory authorization, despite repeated claims from defenders of the Administration back in April that authority could be derived from the 2001 Authorization for the Use of Military Force or the War Powers Resolution. The silence of the opinion in this respect is noteworthy.
- The opinion says nary a word about international law, even though, as many have observed, it’s even harder to justify these strikes under that body of law than it is under domestic law.
As Jack Goldsmith wrote back in 2013 with regard to similar (albeit not as extreme) arguments offered by the Obama administration with respect to strikes in Syria, the central problem with this claim is its limitlessness: “Its main problem is that it places no limit at all on the president’s ability to use significant military force unilaterally. Future presidents will easily be able to invoke regional stability and the need to protect important international norms whenever they want to intervene abroad with strikes like the one expected against Syria.” I agree, and continue to stand by what I wrote in a Twitter thread back in April: I just don’t see how, if these strikes were legal, it isn’t the next step down a very, very slippery slope toward shockingly broad unilateral presidential war powers.
And although at least some of the aggressiveness of yesterday’s opinion may be a function of the Trump administration, to me, it’s a far deeper reflection of just how broadly the Executive Branch, in general, construes its unilateral war powers today—and a ringing indictment of Congress’s repeated refusal to do anything to disabuse successive Presidents of such limitless claims (or to reclaim its own institutional role in the war powers).
Photo by Ford Williams/U.S. Navy via Getty Images