The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday's US missile strike on Syria raises a number of questions going forward. Perhaps the most important is whether President Trump plans further military action against the Assad regime, and if so whether he will first get the constitutionally required congressional authorization.
I. Will Trump go further, and will he get congressional authorization for it?
Today, Nikki Haley, the US ambassador to the United Nations, stated that America is "prepared to do more." For reasons I outlined yesterday, any such large-scale military action would be unconstitutional without prior congressional authorization. Several prominent war powers scholars reached similar conclusions in a recent symposium on on Trump's action, including originalists Michael Ramsey and Saikrishna Prakash. Indeed, they go further than I do, arguing that even yesterday's limited strike was unconstitutional, because it too required congressional authorization.
Some members of Congress from both parties have also stated that a larger intervention cannot be justified without congressional assent, given in advance. We will have to see if this is the moment when Congress finally grows a spine and reasserts its war powers. I very much hope they do, but certainly am not holding my breath.
Trump could try to get around the need for congressional authorization by adopting controversial former Bush adminstration official John Yoo's position that the president has constitutional authority to start wars all on his own (I criticized that view here). Alternatively, he could avail himself of the Obama administration's narrower but equally spurious justifications for its unauthorized wars against Libya and ISIS. Leaving this loaded gun to Trump is among Obama's worst legacies. If Trump adopts either the Yoo rationale for circumventing Congress or the Obama administration's, it would be a very dangerous development.
Legal issues aside, it would also be highly unwise to go further without first developing a broad political consensus in favor of going in, and clarifying the purposes we are trying to achieve. Otherwise, we increase the likelihood of suffering the same sort of failure of the Obama administration "achieved" in Libya.
II. What are we trying to achieve?
Closely related to the issue of broader action is the question of what exactly the US government hopes to accomplish here. In and of itself, yesterday's action is unlikely to change much. The Assad regime will continue the war against its adversaries, and also continue to slaughter civilians. It isn't even very likely that the strike destroyed much in the way of valuable military assets. The Trump administration warned Russia of the attack in advance, so as to minimize the risk of harming Russian personnel at the base. The Russians in turn, surely warned their Syrian allies, so they could remove any particularly valuable equipment and personnel before the Tomahawk missiles hit.
Perhaps the goal is to enforce the international law ban on using chemical weapons. I have some sympathy for that objective. But the use of conventional weapons to target civilians is also a violation of international law. And Assad and his Russian allies have killed vastly more innocent people by the latter means than the former. Little will have been accomplished if the effect of Trump's strike is simply to get Assad to substitute one type of illegal mass murder for another. Last night, I heard a CNN analyst say that "Assad could kill as many people as he wanted with conventional weapons. But doing it with chemicals was a big mistake." Sadly, this seems to be a largely accurate summary of the attitudes of much of the "international community." It is difficult to understand why the killing of a comparatively small number of civilians with chemical weapons is seen as vastly more significant than far more extensive mass murder by conventional means.
III. The contradiction between Trump's newfound concern for Assad's victims and his cruel exclusion of Syrian refugees.
Finally, Trump justified yesterday's strike by the need to protect Assad's innocent civilian victims. It's hard to disagree with Trump's condemnation of Assad's murder of "innocent men, women and children." But such expressions of concern ring hollow so long as Trump continues to try to bar Syrian refugees from the United States under his "travel ban" executive order. As leading terrorism expert Peter Bergen points out, these people are fleeing the very atrocities that Trump now claims to be so concerned about: "These Syrian refugees are not terrorists. They are fleeing the brutal terrorism of the Assad regime and the brutal terrorism of ISIS. They are the victims of terrorism, not its perpetrators."
Trump claims that we must bar Syrian refugees because of supposed security risks they pose. But the security rationales for both Trump's original travel ban and the revised one issued in response to adverse court decisions are laughably weak. They also ignore the significant security benefits of accepting refugees, including weakening ISIS.
By contrast, attacking Assad poses far greater risks. Among other things, it creates the danger of a clash with Russia, and of strengthening the position of ISIS, the terrorist force whose defeat Trump claims should be a top priority. During the 2016 campaign, Trump even claimed that any "shooting war" with Assad "could very well lead to "World War III." That was surely an overstatement. But it underscores his seeming awareness that attacking the Syrian regime is a serious risk.
The contradiction between Trump's cruel refugee policy and his supposed newfound concerns for Assad's victims suggests that he either does not know what he is doing, does not really care about Syrian civilians, or both. None of these possibilities is a reassuring prospect as we consider what might happen next. At the very least, this provides yet more reason for Congress to reassert its war powers, and to think long and hard before authorizing Trump to take any further military action.
UPDATE: I have made a few modest changes in the wording of this post.