War

Former Obama Lawyers Are Suddenly Worried About Illegal Wars

Unlike his predecessor, Trump has not even done us the courtesy of coming up with a laughable excuse.

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White House

Yesterday an anti-Trump group called United to Protect Democracy filed a Freedom of Information Act lawsuit aimed at finding out something you really shouldn't need a FOIA lawsuit to find out: the president's legal rationale for lobbing cruise missiles at a Syrian air base last month. The lawsuit seeks "any and all records, including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President's legal authority to launch such a strike."

To be clear: We know why Trump bombed Syria—because he was upset by images of children and other innocent civilians dying from the government's April 4 sarin gas attack on a rebel-held town. What we don't know is why Trump, who in 2013 argued that "Obama needs Congressional approval" to attack Syria as punishment for President Bashar al-Assad's use of chemical weapons, thought he had the legal authority to do the same thing, assuming he gave the issue any thought at all.

On April 10, the FOIA lawsuit notes, White House Press Secretary Sean Spicer "claimed that the Constitution gives the President 'the full authority to act' whenever military force is 'in the national interest.'" In addition to the humanitarian concerns raised by Assad's use of chemical weapons, Spicer mentioned the threat posed by ISIS, which is fighting the Assad regime. That same day, Secretary of State Rex Tillerson said the missile assault was all about "holding to account any and all who commit crimes against the innocents anywhere in the world"—a breathtakingly broad justification for military action.

The following day, Defense Secretary James Mattis said: "Our military policy in Syria has not changed. Our priority remains the defeat of ISIS." He said the attack on the Syrian air base was the best way "deter the regime" from using chemical weapons, which are prohibited by an international agreement to which Syria is a party.

None of those explanations amounts to a legal rationale for the U.S. attack. The Chemical Weapons Convention does not authorize signatories to enforce its provisions through unilateral military action, and the U.S. Constitution requires the president to obtain congressional authorization for acts of war unless the country is under attack.

Trump is hardly the first president to ignore the latter rule. Describing "a split between the apparent intent of the Constitution and how the country has been governed in practice," New York Times reporter Charlie Savage notes that "presidents of both parties have a long history of carrying out military operations without authorization from Congress." That emphatically includes Barack Obama, who famously argued that bombing Libyan leader Moammar Gadhafi's forces did not constitute "hostilities" under the War Powers Act and justified his unauthorized war against ISIS by citing congressional approval of a different war against a different enemy.

I am not sure which is worse: insulting our intelligence with such transparently inadequate rationales or dispensing with the pretense of legality altogether, as Trump has done. But the members of United to Protect Democracy, former Obama administration lawyers who for all we know had a hand in crafting the 44th president's laughable excuses for illegal military interventions, seem considerably more perturbed about presidential overreach now that Trump is commander in chief.

"We have seen an unprecedented tide of authoritarian-style politics sweep the country that is fundamentally at odds with the Bill of Rights, the constitutional limitations on the role of the President, and the laws and unwritten norms that prevent overreach and abuse of power," the group says. "The only limits to prevent a slide away from our democratic traditions will be those that are imposed by the Courts, Congress, and the American people." Those limits are not strengthened by selective application.

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  1. Trump’s legal rationale is the same as any President doing basically anything: who’s gonna stop him?

    1. One of these days, Obama is going to unveil his superhero outfit. Right now, he is still trying to figure out how to work the sewing machine, while Michelle is yelling at him that she needs it to enlarge the sleeves on her dresses.

      1. All the while muttering that it’s not the dress that makes it look like she has a big ass.

      2. “Honey, where’s my super suit?”

        1. “You ain’t getting no soup, so you here is your suit.”

      3. He’s rebooting the Blankman franchise?

  2. I am not sure which is worse: insulting our intelligence with such transparently inadequate rationales or dispensing with the pretense of legality altogether, as Trump has done.

    Sullum has got to be trolling us.

  3. I for one am shocked that Democrat’s pearl clutching on Presidential war powers is a tactic and not a principle.

  4. “seem considerably more perturbed about presidential overreach now that Trump is commander in chief.”

    There seems to be a lot of that going around

  5. Sounds like Trump’s team needs to learn from “the most transparent administration ever” and just remember to cite the old AUMF, which allows the president full authority to attack Al-Qaeda and its affiliates, all new terrorist organizations that form as a consequence of our actions for the rest of all time, ME dictators who don’t play ball, Russia, North Korea, and anyone we perceive as an enemy

    That is what the authorization covers, right?

    1. No, he needs to directly quote Obama on how even thought O went to congress for approval to strike Syria, he didn’t really need it.

  6. The lawsuit seeks “any and all records, including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President’s legal authority to launch such a strike.”

    I would expect that any legal memos regarding the president’s legal authority to launch such a strike would be protected by attorney-client privilege and thus would fall under FOIA exception 5 (“inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”


  7. “I am not sure which is worse: insulting our intelligence with such transparently inadequate rationales or dispensing with the pretense of legality altogether, as Trump has done.”

    Well one of them lied and dropped bombs, whereas the other one just drops bombs. I think we both know which one is worse, but I think that we also know that all that really matters about the situation is what letter comes after the politicians name. Obama’s wars and attacks were ‘just’ and ‘in line with American beliefs’ but Trump can do the same thing, in the same country, and suddenly it’s a war crime.

    So, yes, Trumps way is better because people are actually taking him to account. That will all stop, instantly, upon a Democrat being reelected.

  8. Wow Sullum you’re just going to drink the koolaid and believe Assad was the one who used chemical weapons with zero evidence.

  9. Why is Reason magazine suddenly ignorant of gunboat diplomacy?

  10. Sullum refers to the Syrian gas attack as “the government’s April 4 sarin gas attack” and “Assad’s use of chemical weapons”. While we do know there was a gas attack, there is no proof that it was the Syrian government who deliberately launched the attack. Alternative explanations have been written about in various media which i won’t list here, but if Sullum wants to blame Syria as the perpatrator, he should use the word “allegedly”.

  11. “”We have seen an unprecedented tide of authoritarian-style politics sweep the country that is fundamentally at odds with the Bill of Rights, the constitutional limitations on the role of the President, and the laws and unwritten norms that prevent overreach and abuse of power,” the group says.”

    These are Obama Administration lawyers who wrote this? Seriously?

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