The War Over War Powers Heats Up in Congress

A key Democrat in Congress is blocking the confirmation of the nominee to the U.S. State Department’s top Middle East post to protest the Trump administration’s failure to get approval from lawmakers before launching airstrikes on Syria last year, State Department officials and congressional sources told Foreign Policy.

Tim Kaine, a Virginia senator on both the Senate’s armed services and foreign relations committees, believes that the strikes on Syria in April 2017 amounted to an act of war, and because the Constitution says only Congress has the right to declare war, President Donald Trump exceeded his authority.

Kaine has urged the administration to release a secret memo it drafted that served as the legal basis for the airstrikes on Syria. He says Secretary of State Mike Pompeo promised to hand over the memo but has so far failed to do so—a full 17 months after the strikes were carried out.

“By hiding this memo, they are raising suspicions that the President launched unilateral airstrikes without any legitimate legal rationale, and I’m concerned they will use it to justify future military action against Syria and other countries,” Kaine said in a statement to FP.

To pressure the administration, Kaine has made use of Congress’s arcane administrative procedures to hold up for months the confirmation of David Schenker to be the next assistant secretary of state for Near Eastern affairs—one of many senior positions that Pompeo is pushing to fill.

The delay illustrates one of the few levers of influence Democratic lawmakers have left over the Trump administration’s foreign policy. Without a majority in either the House or Senate, Democrats have little sway on the matter.

It also reflects the growing debate on Capitol Hill over the power of the executive branch to wage war or carry out airstrikes without congressional approval—a debate that could heat up as Syria launches its offensive on the country’s last rebel stronghold in the city of Idlib.

The top U.S. general, Chairman of the Joint Chiefs of Staff Joseph Dunford, said over the weekend that the Pentagon is preparing “options” for the president should Syrian President Bashar al-Assad use chemical weapons during the assault. A Defense Department spokesman stressed on Monday that such a move “will result in a swift response by the coalition and the U.S.”

The United States struck Syria last year after Assad used sarin gas or a similar toxic substance on rebels in Idlib province. The attack, which marked the United States’ first use of unilateral military action against the Syrian government, killed 74 people and injured over 550.

Following another set of U.S. airstrikes against Syria this April, Kaine told CBS he would have likely supported the attack had Trump first sought lawmakers’ approval, but he stressed the importance of process and transparency: “We have a president, not a king, and the Constitution says it’s Congress that gets to declare war, not the president.”

Without congressional approval, the attack amounted to an “illegal military act,” he said.

According to several sources, Pompeo has called Kaine at least twice urging him to lift the hold on Schenker and worked behind the scenes to determine whether the White House would consider handing over the secret memo, which was drafted by the Justice Department.

The memo is seven pages long, and only one page contains classified material, according to Project Democracy, a nonprofit legal organization that filed Freedom of Information Act requests to obtain the document.

In a hearing before the Senate Foreign Relations Committee in May, Pompeo pledged to work with the senator to secure the memo’s release. “I will accept responsibility. I haven’t—I haven’t turned to that. I will,” he said. “I made a commitment to you that I would do it. I will turn to it this week.”

Neither the White House nor the State Department immediately responded to a request for comment on what has happened in the nearly four months since Pompeo made that pledge.

In addition to constitutional restraints on the authority of the presidency, the War Powers Resolution of 1973 requires the commander in chief to notify Congress within 48 hours of military action and forbids U.S. forces from being deployed for more than 60 days without a formal declaration of war or congressional authorization for use of military force.

But the attacks of Sep. 11, 2001, provided a way for President George W. Bush and his successors to skirt those restraints. In the immediate aftermath, Congress passed a directive giving Bush wide-ranging authority to deploy troops and conduct airstrikes wherever terrorists crop up. Bush, Barack Obama, and Trump have used that authority and a 2002 directive authorizing the use of force against Iraq essentially as a free pass to wage war across the Middle East and parts of Africa.

The administration could argue, as it did after similar strikes on the Syrian government and pro-regime forces in 2017, that the April attacks were justified under the existing authorization for use of military force, said Michael O’Hanlon, a senior fellow with the Brookings Institution. But he said the justification was a stretch, because Syria is a sovereign state and not a terrorist organization.

On the other hand, Congress has already authorized funding for support to the Syria opposition, which arguably gave the administration “de facto support for anti-Assad operations,” O’Hanlon said.

“We are in a murky place where we are probably closer to lacking approval than to possessing approval,” he said.

This spring’s attack prompted Kaine and Senate Foreign Relations Committee Chairman Bob Corker, a Republican, to renew calls for updating the authorization for use of military force to better reflect the security landscape of 2018. But the proposal stalled in the committee.

Trump first nominated Schenker to the State Department post in April. A Middle East scholar with the Washington Institute for Near East Policy and a former Pentagon official, Schenker had his first hearing before the senate in June.

If confirmed, Schenker would replace David Satterfield, the acting assistant secretary brought in by former Secretary of State Rex Tillerson. Officials familiar with the matter say the Trump administration is eyeing Satterfield to take up an ambassador post in either Turkey or Egypt.

Pompeo, on a trip to Pakistan and India last week, appeared to express frustration that the Senate was blocking several key State Department nominations. “We need leaders in place to help execute the mission that the Senate has asked me to go execute,” he said. “They want an efficiently run State Department. … We just need those people to get them across the line.”

Trump appointments have been held up over other issues as well. Democratic Sen. Ed Markey last month announced his intention to block the nomination of R. Clarke Cooper for assistant secretary of state for political-military affairs until Trump agrees to reverse his decision allowing a company to publish instructions for 3D-printed guns. Ambassador Tina Kaidanow has been serving in this position in an acting role since February 2016, but she will soon be leaving the State Department to become the Pentagon’s director of international cooperation.