F-15 fighters, similar to the recent air strike in Syria.
Last week, President Biden ordered an air strike on Iran-backed militia groups in Syria. His actions understandably sparked debates about the legality of US military activity in that country. In fact, Donald Trump ordered very similar strikes in Syria in both 2017 and 2018 (although they targeted Assad regime facilities related to chemical weapons). Critics have argued that Biden’s air strikes – and Trump’s – were illegal because they were never specifically approved by Congress. In my opinion that is not true. However, the general legality of the US military presence in Syria is highly questionable at best and requires Congress approval. Obama, Trump, and now Biden all deserve the blame for not backing it up or even trying hard.
My position on the legality of Biden’s airstrike largely corresponds to what I said about Trump’s Syria strikes in 2017 and 2018: major attacks (like Barack Obama’s 2011 against Libya) require congressional approval, but very small ones that don’t Levels of “war” rise, generally do not. The line between the two can be fuzzy. But both Trump and Biden’s air strikes are way behind the line due to their extremely limited scope and duration. Obviously, some leading scholars disagree and argue differently, believing that almost any initiation of violence against a foreign power requires Congress approval. If they’re right, Trump’s two air strikes against Syria were unconstitutional, and so could Bidens.
But Biden can also argue that his strike was a direct response to recent attacks on US forces by pro-Iranian militia groups against whom the strike was directed. Self-defense measures in direct response to an attack by the same party against which the strikes were launched do not require prior Congressional approval.
As to whether Biden’s actions (like Trump’s before him) were a good idea is a more complicated question. The Trump strikes have barely stopped Assad from committing horrific atrocities, although since then he may have carried out them largely with conventional rather than chemical weapons. Whether Biden will prevent Iran and its allies from continuing to attack US forces remains to be seen.
But even if the recent airstrike is both, the entire US military presence is not. The ongoing US intervention against ISIS – the original main target of our military presence in this country – is clearly large enough to qualify as a war, and therefore, like the Libyan war, requires Congress approval. But since those efforts began under the Obama administration in 2014, successive presidents have taken turns ignoring the constitutional issue or making false statements claiming that there was already a congressional approval (e.g. under the 2001 AUMF, which was directed against the perpetrators of the September 11, 2001 attack, or the 2002 AUMF against Saddam Hussein’s regime in Iraq), although this is obviously not the case. The Syrian intervention not only violates the Constitution, but also violates the Military Powers Act of 1973, which requires the President to obtain Congressional approval for the use of armed forces in “hostilities” abroad within 90 days of the start of the operation. It is evident that the US intervention in Syria involves the kind of “hostilities” covered by the law and that the deadline for the War Powers Act expired long ago (in 2014). I was very critical of this state of affairs from the start, and most of what I said about it in 2014 and 2015 still applies today.
As I have stressed repeatedly, the constitutional requirement of Congress approving large-scale offensive military actions is not just a technical matter:
It also helps ensure that we do not create dubious conflicts at the behest of a single man and that we maximize the chances of success when we start a new war. If the president needs to get Congressional approval before a war begins, he needs to build broad political consensus behind his decision, which in turn increases the likelihood that we will stay on course until victory rather than stepping out when trouble arises. In the absence of such a consensus, it is probably best to forego a conflict first.
As James Madison put it: “[t]The Constitution Assumes What The Story Of All Gove Is[rmen]ts shows that the ex[ecutive] is the branch of power most interested in and most vulnerable to war. Accordingly, it has carefully and carefully transposed the question of war into legislation[ature]”Even Alexander Hamilton, the leading proponent of the presidential expansive power among the founders, wrote that only” Legislature has a right to wage war “and that” it is. . . The executive’s duty to keep the peace until war is declared. “In addition to the originalist argument for the need for Congress approval, there are strong living Constitution considerations to support it.
I’m not as reluctant as many libertarians, and I think there were good reasons to take military action against ISIS and maybe even against the Assad regime and various Iranian proxies in Syria. For both legal and pragmatic reasons, it is important to ensure that all large-scale military action ensures Congress intervention.
The new president inherited this problem from his predecessors. But, like it or not, he owns it now and has a duty to obtain Congressional approval for all ongoing military action in the region. So far, however, both he and Congress have shown little interest in addressing this problem. In the case of Congress, this is a continuation of a longstanding pattern that has lasted nearly seven years since the Syrian intervention began. I hope that will change. At this point, however, I am far from optimistic.
On the plus side, the Biden administration deserves credit for ending US support for Saudi Arabia-led offensive military actions in the ongoing Yemen war. While these efforts likely did not violate the Constitution, they did violate the War Powers Act. Furthermore, the Yemen war was a terrible humanitarian catastrophe from which the US has drawn little or no strategic gain – certainly not one that can even justify the dire effects of the conflict.