Before people jump on me about what I’m about to write, I held the same position last year when President Donald trump lobbed 59 missiles into Syria over what his own Defense Secretary claims there was no evidence for doing, namely that Syrian President Bashar Assad was behind the gas attack in 2017. I also wrote against Barack Hussein Obama Soetoro Sobarkah’s military force in Libya, and I did all of it by pointing to the Constitution, a document both men took an oath to uphold and defend.
Consider the position of the Trump administration.
In a statement on the attack on Syria, Secretary of Defense General James Mattis wrote:
As our commander in chief, the president has the authority under Article II of the Constitution to use military force overseas to defend important U.S. national interests.
I’m sorry, that is not what the Constitution says because a key phrase is intentionally left out, but I’ll get to that in a moment.
So, why is there an issue with the attack in Syria? It’s pretty clear if you read the Constitution.
Like it or not, firing missiles into another country is an act of war.
But does the President have constitutional authority to just decide to launch a military strike anywhere he likes? Not at all.
First, consider the only powers delegated to declare war under our Constitution is the US Congress.
According to Article 1, Section 8 of the US Constitution, Congress has authority to:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Only Congress has that authority, not the Executive Branch. I might add that nowhere in the Constitution is Congress authorized to delegate their authority to the Executive, ie. the president. This would shift the balance of powers.
Now, look at what General Mattis left out of his statement above concerning the president becoming Commander-in-Chief.
He wrote, “As our commander in chief, the president has the authority under Article II of the Constitution to use military force overseas to defend important U.S. national interests.”
Under Article II, Section 2 of the US Constitution, the president only becomes Commander-in-Chief “when called into the actual Service of the United States.”
Here’s the relevant portion:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
Still, there are those who want to say it is constitutional.
Take Ken Klukowski at Breitbart, who does the exact same thing as General Mattis and does not finish what the Constitution actually says.
While experts can debate whether striking Syria is good policy, the legal reality should not be open to debate: President Donald Trump’s strikes against Syria were fully authorized by the U.S. Constitution.
Article I, Section 8, Clause 11 of the Constitution says that only Congress has the power “to declare War.” However, Article II, Section 2, Clause 1 says, “The President shall be Commander in Chief of the [Armed Forces] of the United States.” The Constitution has no wasted or meaningless words; both of these provisions must be given legal effect.
Not every presidential use of military force constitutes “war.” Whether a specific use of military might crosses that line depends on the nature, scope, and duration of that force. Congress also has ongoing authority through its Article I powers, to raise and equip military units and to authorize funding for specific military operations, to shape a president’s use of military power over time.
Short of an actual war, the Constitution’s Commander in Chief Clause empowers the president to use force to protect the interests of the United States when they are threatened by a foreign power. Those interests include: (1) defending the United States against an attack or the threat of an imminent attack, (2) defending U.S. citizens, (3) defending our allies when we are obligated by treaty to do so, and (4) enforcing treaty obligations and other international law standards that protect American lives and interests.
Not only is he missing the part that this is exactly an act of war and that inspectors had not even concluded that Assad used gas, but he fails to follow the line that Congress would evaluate the evidence and authorize the action. Claiming that striking a country with missiles is not “war” is absolutely foolish. Tell me, if we were in the same boat, would we think another country doing that to us was an act of war? You better bet we would.
I agree that we are to enforce treaties. The question then becomes one of asking is there sufficient evidence that Assad gassed his own people that could pass the scrutiny of the American people, ie their representatives in Congress, so that they might give the go ahead in the military action? Not that I’ve seen.
In fact, General Mattis indicated earlier this year that the strike last year has zero evidence that Assad was behind the attack. What changed? Apparently, nothing.
Though officially the US says it does not have any chemical weapons, it does have chemical stockpiles. Frankly, I’m not so naive as to think that we don’t have some weaponized chemicals ourselves.
According to the Federal Emergency Management Agency (FEMA):
The Chemical Stockpile Emergency Preparedness Program (CSEPP) is a partnership between FEMA and the U.S. Department of the Army that provides emergency preparedness assistance and resources to communities surrounding the Army’s chemical warfare agent stockpiles.
CSEPP’s mission is to “enhance existing local, installation, tribal, state and federal capabilities to protect the health and safety of the public, work force and environment from the effects of a chemical accident or incident involving the U.S. Army chemical stockpile.”
CSEPP protects people who live and work near installations with chemical stockpiles in the unlikely event of a chemical accident or incident. The Army is fulfilling its mission to eliminate aging chemical munitions and warfare materials in accordance with international treaties and national policy. To date, chemical stockpiles have been destroyed at Aberdeen Proving Ground, Maryland; the Newport Chemical Depot, Indiana; Pine Bluff Arsenal, Arkansas; the Anniston Army Depot, Alabama, Umatilla Army Depot, Oregon, and the Deseret Chemical Depot, Utah. A stockpile on Johnston Atoll, an island in the Pacific Ocean, was also destroyed in 2000. CSEPP will remain in place until all stockpiles are destroyed. An overview of this information is available in our CSEPP Fact Sheet.
Still, the matter seems pretty simple to me. Enforcing the treaty would mean that the military would have to be called up in the service of the united States to enforce it, right? Which would mean that Congress would have to call them up and that the President would become Commander-in-Chief to carry out the enforcement. None of that occurred, not last year, and not this year.
Klukowski also sees somehow that Trump’s actions are warranted no matter if one points to the War Powers Act or Congress’s Authorization for the Use of Military Force (AUMF) in 2001 after the 9/11 attacks. Frankly, I question the AUMF. It’s almost a carte blanche delegation of the power of Congress in the matter and seems repugnant to the Constitution itself. The War Powers Act should not be loosely interpreted to authorize this action either.
I suggest that if people are going to the Constitution to defend the strikes in Syria or anywhere else, they should read the entire context and not drop relevant, important phrases that the founders placed in the document that would restrict such actions.