A U.S. Air Force F-16 Fighting Falcon conducts aerial refueling over Syria, December 2017. (Photo: Staff Sergeant Paul Labbe)

What’s the legal basis for military action absent congressional authority? Let’s have an open debate.

In an outrage and scandal-driven news cycle, it’s easy to lose sight of the truly significant stories. Let’s talk memos, for example. The past five days have been dominated by discussion of two memoranda — one Republican and one Democratic — that deal directly with claims that at least part of the Department of Justice investigation of the Trump campaign’s ties to Russia was tainted by political bias. This is an important issue, no doubt, but did you know there exists another memo — one of perhaps world-historical importance — that the American people need to see?


Before I describe the memo, let’s take a short detour into constitutional and military history. As most civically literate Americans know, the Constitution bifurcated the nation’s war-making powers. The president is the commander in chief of the armed forces, and as commander he enjoys a certain degree of inherent authority to order immediately necessary military strikes to defend the nation and its allies. At the same time, Article I, Section 8, Clause 11 of the Constitution grants Congress the power to “declare war.”

In theory, the Constitution thus creates a simple and easily understandable balance of powers. Only Congress can initiate war (aside from, of course, immediate acts of self-defense), but once war begins, command authority rests exclusively with the president. In practice, however, it seems as if the rule is observed mainly in the breach. In the post–World War II era, American forces have been committed time and again even in offensive military actions without even the slightest effort to obtain congressional authorization.


The latest example occurred on April 6, 2017, when President Trump ordered a cruise missile strike on Syria in retaliation for its use of chemical weapons against its own civilian citizens. Unless there is classified information we don’t yet know, a strike of this nature is exactly the kind of military action that should require congressional approval. We were not at war with Syria. We were not acting in immediate self-defense of our nation. We were not fulfilling a Senate-ratified treaty obligation.

Shrugging off the Constitution is a bipartisan practice. Who can forget President Obama’s strikes against Libya? He ordered offensive military action against a sovereign nation without a declaration of war. While George W. Bush obtained congressional authorization for the wars in Iraq and Afghanistan, his predecessor, Bill Clinton, launched extended aerial campaigns in the former Yugoslavia with no congressional vote.



Put simply, it’s increasingly clear that years of presidential overreach, congressional inaction, and partisan bickering have jeopardized our constitutional structure. We are steadily moving away from the separation of powers and toward an unconstitutional legal regime that places sole war-making authority in the hands of an increasingly imperial presidency.

This is wrong. It’s dangerous. It has to stop.

Moreover, this is a matter of increasing urgency. There are widespread reports that the president is considering launching a “bloody nose” strike against North Korea — a strike designed to send the strongest possible message, short of all-out war — that its ICBM program has to end. The discussions are apparently so serious that the administration pulled its nominee for ambassador to South Korea, Victor Cha, because he opposed the strike. He then immediately took to the pages of the Washington Post to express his opposition, in a piece titled “Victor Cha: Giving North Korea a ‘Bloody Nose’ Carries a Huge Risk to Americans.”

And this brings us back to Syria. The parallels are important. Syria and North Korea are both sovereign nations. We are not in a state of declared war with either nation (our armistice with Korea still holds). We are not facing the necessity of immediate self-defense. Oh, and in both countries, military action carries with it risks of dangerous escalation. With Russian boots on the ground in Syria, miscalculation risks a great-power conflict. With immense North Korean forces clustered near the border of South Korea, miscalculation risks a truly terrible war.



New military action in Syria and new military action in North Korea represent textbook cases for congressional authorization. So why did the administration feel that it had the legal authority to order its Syria strike?

Well, it turns out there’s a memo. Modern military action is almost always preceded by an internal legal analysis. Heck, even individual strikes within congressionally authorized conflicts are often authorized only after legal review. (That’s one of the many things I did in Iraq.) Prior to the Syria strike, the administration generated a classified document by an “interagency group of attorneys” that analyzed the “legal basis for potential military action.” We know this in part because an organization called Protect Democracy filed a FOIA lawsuit against the Trump administration and because a federal court ordered the administration to process the organization’s request on an expedited basis.

Protect Democracy has a bipartisan staff, but it’s led by Ian Bassin, a former associate White House counsel during the Obama administration. That brings me to my next point: We cannot sustain and protect our constitutional structure if we delegate arguments against the unconstitutional abuse of presidential authority exclusively to members of whichever party is out of power. The Constitution is the Constitution regardless of the party affiliation of the president or his critics.

This puts the ball squarely in the Republican court. Will congressional Republicans protect their constitutional authority? My home-state senator, Bob Corker, has a role to play here. As chairman of the Senate Foreign Relations Committee, he’s already held important hearings exploring the president’s authority to use nuclear weapons. It was right and proper to revisit this question after years of political and military inertia. Now it’s time for Senator Corker to insist on a public debate and congressional authorization before we launch any new military action against North Korea.

And that debate can begin with the president’s memo. It’s being withheld for now, classified as top secret. But with appropriate redactions, its legal analysis should be made public. While the facts supporting the argument may well be legitimately classified, the legal analysis itself — which will turn on questions of constitutional, statutory, and international law — should be a matter of open inquiry. The Trump administration employs a number of serious legal minds. Their arguments deserve good-faith consideration.


They do not, however, merit blind acquiescence. A Korean conflict has the potential to be so cataclysmic as to render every other contemporary domestic scandal historically irrelevant. Moreover, our constitutional structure must and should endure even as a variety of political and cultural forces work together to magnify the power of the presidency.

We can protect national security and conduct a healthy congressional debate. It’s not either/or. Our system is designed from the ground-up to be both/and. In fact, military action backed by robust debate and congressional authorization is far more sustainable — and threats backed by the approval of the legislative branch are far more potent — than strikes or threats based on presidential actions alone. Release the memo. Let the debate commence.

READ MORE:

What Are We Still Doing in Syria?

The U.S. Needs to Rethink What Winning in Afghanistan Looks Like

Iran’s Challenge to America in Syria