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My New Washington Post op ed on Biden, Syria, and War Powers

I argue that the recent air strike was legal, but overall US military intervention in Syria still lacks required congressional authorization. Biden may be trying to change that; but history gives reason for skepticism.

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F-15E fighter.

 

This morning, the Washington Post published my new op ed on Biden, Syria, and war powers:

When President Biden ordered an airstrike on Iranian-supported militia groups in Syria, his actions rekindled long-standing debates about the legality of U.S. military intervention in that country under the Constitution and the 1973 War Powers Act. Similar debates arose after Donald Trump ordered strikes in Syria in 2017 and 2018 — although those targeted Syrian government facilities associated with chemical weapons.

Critics have argued that both Trump's and Biden's strikes were illegal under the Constitution because they were not approved by Congress…. In my view, that is incorrect: Advance congressional authorization is not required for small-scale actions taken in self-defense against adversaries that have attacked U.S. forces — as Iranian-backed militias did in the most recent case.

But the debate over these strikes, taken in isolation, obscures a larger question: While the recent action may pass constitutional muster, the overall legality of the long-standing U.S. military presence in Syria is profoundly questionable; it almost certainly requires congressional authorization. Barack Obama, Trump and now Biden all deserve blame for failing to secure it throughout almost seven years of military operations….

In addition to violating the Constitution, the Syria intervention — viewed as a whole — also runs afoul of the 1973 War Powers Act, which requires the president to get congressional authorization for any deployment of military forces in "hostilities" abroad within 90 days of their commencement. It is undeniable that the U.S. intervention in Syria involves the kind of "hostilities" covered by the Act. Where Syria is concerned, the War Powers Act deadline passed a long, long time ago — during the Obama administration.

To its credit, the Biden administration has not attempted to stretch previous AUMFs to justify its recent airstrike. Instead, the president cited his inherent power, as commander in chief, to defend U.S. troops against attack. This is a strong rationale for the limited airstrike conducted on Feb. 25, but cannot justify the broader U.S. operations…

As I note in the op ed and discussed more fully here, the White House has indicated that the president would like to repeal the 2001 and 2002 AUMFs and replace them with a more "narrow and specific" authorization for ongoing operations against terrorists. I hope that happens. But recent history gives reason for skepticism.

NEXT: Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases)

War Joe Biden Syria Executive Power

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37 responses to “My New Washington Post op ed on Biden, Syria, and War Powers

  1. Given that the war powers act should have been called unconstitutional since it ceded the ability to declare war to the executive, the whole justification is nonsense. There was also no threat posed to the US or its citizens, possessions or territories other than troops that were in the region illegally to begin with.

    1. It makes no difference to me if the troops are their legally or illegally. We need to defend them from attacks.

      The legality of the mission is a separate issue.

  2. Silliness.

    President* Biden isn’t going to try to change anything that reduces the power of the Executive Branch. No president since, say, Taft, was a constitutionalist that way.

    1. Still stewing about the “stolen” election, clinger?

        1. Yeah, I remember all the people pretending that Trump wasn’t actually President and putting asterisks by his name in March 2017.

          Oh wait, nevermind. That never happened at all. Maybe you have a real example?

          1. I remember Foreign Policy calling for a military coup in 2017. Maybe you have a 2021 example of an establishment publication doing the same?

            1. I found one article that suggested that military leaders might refuse an insane order. Is that what you are referring to?

              And that whataboutery is not remotely comparable to what the Trumpists are claiming, and what they tries to do on Jan. 6.

              Stop the BS. I don’t have you in the same category as m_k, Dr. Ed, etc. – utterly deranged. Am I wrong?

      1. Yes, that Teddy Roosevelt sure screwed over his pal Taft in 1912. Which led to the election of that arch-racist Wilson.

      2. Yes, it was quite stolen, your quotation marks aside.

        1. Grievance-consumed, nonsense-spouting, disaffected right-wingers are among my favorite culture war casualties.

          Birthers. QAnuts. Pizzagaters. Election Fraud Elite Strike Forcers.

          Republicans. Conservatives. Clingers.

        2. Oh shut up, you Trumpist fool.

          It wasn’t stolen, and anyone with an ounce of sense knows it.

      3. If you’re so sure everything was legit, how about the left support a full audit.

        *crickets*

        Thought so.

        1. Like the one that already happened in Georgia?

          1. Georgia conducted more than one audit, if I recall correctly.

        2. How about the right produce some actual non-laughable evidence, which they notably failed to do in court or at any other time.

          Forget it, m_k. There’s been plenty of opportunity. GA was recounted twice. Remember Rudy scurrying away from claiming fraud in PA? Might have to back it up, and we can’t have that, can we.

          This ridiculous BS about fraud is toxic. Worship Trump if you must, but don’t everyone else to do so.

        3. The burden is on you to produce some evidence, actually.

          And you can’t, because what you bought into isn’t real.

    2. Maybe you don’t know Biden as well as you think you do.

      [T]he White House has indicated that the president would like to repeal the 2001 and 2002 AUMFs and replace them with a more “narrow and specific” authorization for ongoing operations against terrorists.

      Maybe that won’t happen, maybe it will. But maybe you should quit predicting stuff based on feelings.

      1. Feelings? Your reading comprehension sucks. It’s based on history. When was the last time a president diminished his power?

        I’ll wait for an answer.

        1. Seemed like you were making it personal about Biden.

          We’ll see how it goes, then.

      2. Just what the hell are you doing, if not screaming out based on your feelings of contempt for individualism? You’ve made it plenty clear over the years how much individualism disgusts you, how much collectivism is just fine and dandy, of course only as long as it follows your individual feelings.

        1. Catching Sarcastro in his own contradictions is too easy (or any leftist for that matter). I lost the taste for it a while back, when no matter how much they are pointed out to him (or other leftists), nothing ever penetrates the solipsistic armor.

        2. Amazing how you don’t know me at all, so blinded are you by your hate for the cartoonish liberals in your head.

      3. “president would like to repeal the 2001 and 2002 AUMFs ”

        LOL Did you see the video of his announcement of some general promotions today? Couldn’t remember the names of the Pentagon or the Defense Secretary. Just a “guy who runs that place over there”.

        He likely can’t spell AUMF if you spot him the AUM, let alone want to replace them.

        1. And Bob in with a whole ‘nother conspiracy theory.

          We all saw the debates, chief.

          1. And Sarcatsr0 in with the cartoonish conservative conspiracy theory. Well done.

            1. Nobody on the right has any business criticizing others for believing in conspiracy theories. The whole conservative movement is nothing but mass paranoia.

              Election fraud! Climate change fraud (Chinese hoax)! Covid fraud! etc.

              Come back to Earth.

            2. Dunno what you’re talking about. Bob asserts Biden can’t read because he’s demented but it’s being hidden from us.

              That’s also a very dumb conspiracy theory.

  3. If you want to get technical, a standing army (which the Air Force is an extension of) is itself unconstitutional.

    The founders envisioned a standing *navy*, with ships which could bombard shore cities (e.g. Tripoli), but expected that Congress would “raise armies” — a specifically enumerated power — and that would ensure that Congress retained the power to declare war.

    They never anticipated ship-launched cruise missiles, or aircraft carriers, and hence while the President could skirmish with ship cannons that could fire 3 miles inland, but anything beyond that would require Congressional action.

    The Civil War changed this because after that we retained a standing army.

    1. Actually, we retained a standing army after the war of 1812, because the state militias hadn’t worked out well for invading Canada. Mind, that was part of the point of the militia system, that it wasn’t suitable for wars of aggression, only defense.

      Aside from that, I generally agree with you. It’s been a while since they even bothered to place the constitutionally mandated limited duration on army appropriations, even.

      1. Just because the framers didn’t intend something doesn’t mean they prohibited it. The power to “raise and support” armies includes a standing army, because it is raised and then supported.

        And in any event, it’s clearly a political question. What are you going to do, have courts disband military units?

        1. No, they didn’t actually prohibit standing armies, they just greatly disfavored them.

          They DID, OTOH, write this into the Constitution:

          “The Congress shall have Power To …raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years

          And it’s being routinely violated. Call me a nit-picker if you must, but I really dislike the government routinely violating the Constitution, even if they could accomplish the same ends constitutionally quite easily.

          Maybe especially if they could accomplish the same ends constitutionally quite easily, because not bothering demonstrates their contempt for it.

        2. I don’t know if your first paragraph is exactly a syllogism, but it sounds like one to me.

          To believe that requires a willful ignorance of the writings of the framers.

      2. Actually, we retained a standing army after the war of 1812

        Good point — and that is who was initially shot at in Fort Sumpter when the Civil War broke out. But note how the war was all State units, the 20th Maine, 54th Massachusetts, etc.

        That’s really the last war in which you see the primary reference to US Army troops being their state units. It’s why I draw the line there, although your point is quite valid.

  4. More lawyer idiocy. I can’t take it anymore. Somin has less common sense and savvy than a kid in Life Skills Class learning to eat with a spoon. Some of those kids have special skills and are savants. Somin is not.

    They kill our working class guy contractor. We kill their proxy making $100 a month to support a large family, if he is getting paid at all. This is ridiculous. Their families suffer as much as yours from the loss of a son.

    The bombs and the rocket attacks should be going to the oligarchs propelling this ridiculousness.

  5. There is no reason for us to be in Syria, much less any part of the middle east now. If after nearly 20 years Biden is so inept he cannot pull us out of that quagmire, he should be impeached.

    1. There is one big reason to be in the Middle East under President* Biden, if we aren’t going to support energy independence.