💥 SPECIAL SYRIA _ Donald Trump Ordered Syria Strike Based on a Secret Legal Justification Even Congress Can’t See

Schwarz, The Intercept, April 14 2018

On Friday
night, President Trump ordered the U.S. military to conduct a bombing
attack against the government of Syria without congressional
authorization. How can this be constitutional, given the fact that Article I,
Section 8 of America’s founding document declares that “The Congress shall have
Power … To declare War”?

deeply bizarre and alarming answer is that Trump almost certainly does have
some purported legal justification provided to him by the Justice Department’s
Office of Legal Counsel — but no one else, including Congress, can read it.
Office of Legal Counsel is often called the Supreme Court of the executive
branch, providing opinions on how the president and government agencies should
interpret the law.
We know
that Trump received a top secret OLC opinion justifying the previous U.S.
strike on Syria on April 6, 2017. Friday’s bombing undoubtedly relied on the
same memo or one with similar reasoning.
So while
over 80 members of Congress wrote
to Trump on Friday night stating that “engaging our military in Syria … without
prior congressional authorization would violate the separation of powers that
is clearly delineated in the Constitution,” their action has no impact. The
military will rely on the OLC’s opinion that, constitutionally speaking,
Trump’s orders were perfectly fine. And it will be quite difficult for members
of Congress to argue otherwise, since they don’t even know what the Trump
administration’s precise rationale is.
It is not
unprecedented for the OLC’s reasoning to be classified. Over 20 percent of its
opinions between 1998 and 2013 have been
these OLC memos were generally written on government actions that were
themselves classified. One notorious example is the so-called “torture memos
produced by the OLC during the George W. Bush administration.
makes Trump’s actions new, according to several legal experts I spoke with, is
that previous presidents appear to have always made public their legal
justification for any overt military action on a significant scale. No matter
how shoddy their explanations were, this at least made debate possible.
The only
reason the existence of the 2017 OLC memo on Syria is public knowledge is
because the organization Protect Democracy filed a lawsuit to
compel the Justice Department to comply with a Freedom of Information Act
request that the OLC provide “the President’s legal authority to launch such a
refused — but did produce an index
of relevant documents. The first on the list is key: As described by the OLC,
it is a “Legal Memo” that “is currently classified TOP SECRET.”
after the 2017 strikes, two prominent Democrats, Sen. Tim Kaine of Virginia and
Rep. Adam Schiff from California, wrote to Trump and requested
“a detailed analysis of the legal precedents and authorities supporting the
action in Syria.” They have not received any response.
So what
does the OLC’s secret memo say? Obviously it’s impossible to be certain, but it
is possible to make educated guesses.
Madison, the Constitution’s main architect, explained that
the power to declare war must be “fully and exclusively vested” in Congress
because history showed that “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.”
Constitution did, to some degree, work to restrain this presidential tendency
through World War II. Since then, however, both Republican and Democratic
presidents have made concerted efforts to break the Constitution’s chains,
using extremely strained interpretations of the Constitution itself.
In 1950
President Truman sent hundreds of thousands of troops to Korea to fight an
extraordinarily brutal war without any authorization from Congress. Instead,
his administration claimed
he had the power to do this because Article II, Section 2 of the Constitution
says that the president “shall be Commander in Chief of the Army and Navy of
the United States.” Therefore, “the President’s power to send the Armed Forces
outside the country is not dependent on Congressional authority.”
The Gulf
of Tonkin resolution provided some degree of Congressional authorization for
the Vietnam War. But then the U.S. began a secret military campaign against
Vietnam’s neighbor, Cambodia. In 1970 William Rehnquist, later to become Chief
Justice of the Supreme Court, was head of the OLC. He provided the Nixon
administration with an opinion
stating that the Korean War “stands as a precedent for executive action in
committing United States armed forces to extensive hostilities without any
formal declaration of war by Congress.” Moreover, the U.S. had “in no sense
gone to ‘war’ with Cambodia” and Nixon did not require any further
authorization from Congress, given “the constitutional designation of the
President as Commander in Chief.” The U.S. ended up dropping more bombs on
Cambodia – which then had a population smaller than that of New York City —
than we used during all of
World War II
perspective on presidential power eventually become dogma for the U.S. hard
right. Congress in fact did authorize the Gulf War in 1991, but Dick Cheney,
who was then Secretary of Defense, believed that this was totally unnecessary,
and indeed later claimed the George H.W. Bush administration had the power to
go to war even if Congress had voted the resolution down. “We had the Truman
precedent from the Korean crisis of 1950,” Cheney explained.
“From a constitutional standpoint we had all the authority we needed.”
handed the George W. Bush administration a memo
similar to that of Rehnquist’s three weeks after the 9/11 attacks. Thanks to
Article II, it said, the Constitution establishes that “the Founders entrusted
the President with the primary responsibility, and therefore the power, to use
military force in situations of emergency.” Therefore the President did not
need congressional authorization to attack “terrorist organizations or the
States that harbor or support them, whether or not they can be linked to the
specific terrorist incidents of September 11.”
Trump ordered last year’s strike on Syria, then-Secretary of State Rex
Tillerson explained
that he’d done so “pursuant to his power under Article II of the Constitution
as Commander in Chief,” without any authorization by Congress. Then last night,
Secretary of Defense James Mattis stated
that “the president has the authority under Article II of the Constitution to
use military force overseas to defend important U.S. national interests,” and
the bombing was therefore constitutional because “The United States has an
important national interest in averting a worsening catastrophe in Syria, and
specifically deterring the use and proliferation of chemical weapons.”
So the
general outlines of Trump’s legal basis for Friday’s bombing are fairly clear.
There also are truly extreme. As Jack Goldsmith, one of the heads of the OLC
during the Bush administration, has said,
it’s a perspective that “places no limit at all on the president’s ability to
use significant military force unilaterally.”
would be bad enough, of course, if everything were out in the open. But at
least then it could be debated on specifics, rather than supposition. Instead,
we have allowed the Constitution to be eviscerated to the point that not only
does the president have nearly unlimited war powers, we can’t even say exactly