Congress needs to immediately check an out-of-control president.
By Robert L. Borosage
Apr. 22, 2018
The recent missile attack on Syria, in response to alleged use of chemical weapons on civilians by the Assad regime, revealed the scope of Donald Trump’s lawlessness. The attack, launched by the United States, Britain and France, was an open violation of international law and the United Nations Charter, which is the centerpiece of the “rules-based” order that the United States claims to defend. The charter prohibits “the threat or use of force” against a sovereign nation, unless the attack is authorized by the UN Security Council, is an act of self-defense, or is consented to by the sovereign government. None of these provisions apply. Some argue that the attack is justified by the emerging “right to protect,” but that too permits intervention only with UN sanction.
Defenders of the strike argued that it was necessary to trample international law in order to enforce it. Former Obama State Department official Anne Marie Slaughter praised Trump for doing the “right thing,” and tweeted that “It will not stop the war nor save the Syrian people from many other horrors. It is illegal under international law. But it at least draws a line somewhere and says enough.”
The attack also violated the US Constitution, which lodges the power to make war in the Congress and not the executive branch. Congress has provided no authority for the invasion of Syria. The post-September 11 Authorization to Use Military Force authorizes action the organizations that perpetuated 911 and their offshoots. No contortion of logic can stretch it to include the Assad Regime in Syria which has led the attack on IS in Syria.
The secret legal rationale – if there is one – would likely be based on the rationale invoked by both Obama and Trump for earlier strikes in Syria: that as commander-in-chief, the president may use military force to uphold regional stability and vital international norms in the national interest. This contention, as Jack Goldsmith, former attorney in the Office of Legal Counsel under George W Bush, concluded, “places no limit at all on the president’s ability to use significant military force unilaterally.”
If Trump is allowed to step over legal lines like this, the consequences may be dire. That the impulsive, erratic, ignorant president claims the power to use the military anywhere at any time that he might decide is frightening enough. It becomes terrifying when combined with the views of the war cabinet he now seeks to assemble.
The Syrian strike coincided with uber-hawk John Bolton assuming his post as National Security Advisor. Bolton’s views – and treatment of colleagues –are so extreme that a Republican senate refused to confirm his nomination by George W. Bush to be Ambassador to the United Nations. Bolton was not only part of the effort to sell the war against Iraq, but remains a defender of what is clearly the greatest US foreign policy debacle since the Vietnam War. Having learned nothing from that calamity, he remains a vociferous advocate of so-called “preventive” war against both North Korea and Iran. He openly scorns diplomatic achievements like the Paris climate accord or the multilateral Iran nuclear weapons agreement. He advocates escalating US involvement in Ukraine, and a more muscular policy against both Russia and China.
Trump has nominated Mike Pompeo, the former “Congressman from Koch,” to serve as secretary of state. Pompeo also was a champion of the Iraq debacle. He too has called for preventive military assault on North Korea and Iran. He is highly critical of the the Iran Agreement and the Paris climate accord. While he presented himself as an advocate of “relentless diplomacy” in his Senate conformation hearings, he also admitted, under questioning by Senator Jeff Merkley, that he thought the president had the power to make war without the mandate of Congress.
Trump has also selected Gina Haspel to be director of the CIA. Haspel was notoriously involved in running one of the CIA’s torture sites in Thailand, where water boarding among other tortures took place. Then, in direct violation of orders from the White House, she pushed the destruction of videotapes of the torture. Her defense is the classic Adolf Eichmann plea rejected by the Nuremburg Tribunal after World War II: that she was “just following orders.” (Not surprisingly, her nomination has been touted by a bipartisan group of former spies and operatives, and opposed by over 100 former admirals and generals, because “We did not accept the ‘just following orders’ justification after World War II, and we should not accept it now.”)
If confirmed, her appointment would indicate that the United States not only does not punish those who violate the most basic strictures against torture, but chooses to reward and elevate those officials.
This is where we are headed: An impulsive and bellicose president empowered to use force on his own authority advised by the advocates of aggressive war with a covert arm headed by a practitioner of torture.
This is precisely what the founders of the country sought to protect against by giving Congress the power to declare war. James Madison noted that the power to declare war is “fully and exclusively vested” in the Congress because the “executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”
Sadly, presidential assertion has been aided and abetted by craven congressional abnegation. Particularly since 9/11, most legislators would prefer to duck and cover. They don’t want to be held responsible if a terrorist attack comes after they vote against intervention or blamed when an intervention they supported goes bad.
Current halting efforts to provide some limit on the use of force in the so-called global war on terror have been largely a joke. Senator Tim Kaine courageously denounced Trump’s Syrian missile attack as illegal. Yet, he has joined with Senator Corker to draft a revised Authorization for the Use of Military Force that would essentially, as Rep. Barbara Lee warned, give the president a blank check for attacks across the world. It authorizes the use of force against a broad range of groups by name, and then allows for the president to designate additional groups and countries – even in secret – on its own authority. It does not demand public statement of what groups and countries the United States is declaring war against. It does not require approval before new groups or countries are added to the list. To remove a group or country, the Congress must overcome a veto with a supermajority. The measure does not even mandate reauthorization after a few years. This isn’t Congress reasserting its powers; it is Congress fecklessly signing them away.
Donald Trump got a boost in the polls from the attack on Syria. Americans rally to a president who looks muscular using military force. But the reality of presidential war making has been wars without end and without victory. The war in Afghanistan is now in its seventeenth year. US troops are still in Iraq after 15 years. The Syrian civil war has been ongoing for seven years; the United States has been bombing there every day for more nearly four years.
A sensible first step in reclaiming congressional power would be to reject the nominations of Pompeo and Haspel, and deny Trump his war cabinet.
Other efforts are underway and are worthy of support, too: eighty-four members of Congress, including some Republicans, wrote the president warning that a strike on Syria, without prior congressional authorization, would be a violation of the Constitution. The effort by Republican Senator Mike Lee and Democratic Senator Bernie Sanders to end US support of Saudi Arabia’s destruction of Yemen gained 44 votes in the Senate. New efforts to bring the troops back from Afghanistan and Syria are in the works.
That would put Congress on record against the Trump administration’s posture on aggressive war and torture. Congress, however, will be reluctant to act without a wide public mobilization. Legislators need to hear public opposition to Pompeo and Haspel. The 2018 elections –both primaries and general –offer an opportunity to demand that candidates make clear where they stand on getting out of the endless wars in the Middle East and curbing the lawless presidential power to make war.