Saturday, April 08, 2017

Is it legal if Donald does it?

Donald Trump slouched into the White House thinking that the President could do whatever he wanted to by simply commanding it. Right away his ban on Muslims proved that was not so. There are, however, areas of the government that will respond to his orders to jump with a hearty Yes, Sir! How High, Sir! The military, which until this century. was very respectful of civilian control, now tries to use the president to enable live testing of all their wonderful weapons on other countries. And the question arises, is it legal?
President Trump ordered the military on Thursday to carry out a missile attack on Syrian forces for using chemical weapons against civilians. The unilateral attack lacked authorization from Congress or from the United Nations Security Council, raising the question of whether he had legal authority to commit the act of war.

Mr. Trump and top members of his administration initially justified the operation as a punishment for Syria’s violating the ban on chemical weapons and an attempt at deterrence. But they did not make clear whether that was a legal argument or just a policy rationale.

The strike raises two sets of legal issues. One involves international law and when it is lawful for any nation to attack another. The other involves domestic law and who gets to decide — the president or Congress — whether the United States should attack another country.

Did Trump have clear authority under international law to attack Syria?

No. The United Nations Charter, a treaty the United States has ratified, recognizes two justifications for using force on another country’s soil without its consent: the permission of the Security Council or a self-defense claim. In the case of Syria, the United Nations did not approve the strike, and the Defense Department justified it as “intended to deter the regime from using chemical weapons again,” which is not self-defense.

Could the strike be justified as a humanitarian intervention?

Some human rights advocates have argued that customary international law, which develops from the practices of states, also permits using force to stop an atrocity. Others worry that accepting such a doctrine could create a loophole that would be subject to misuse, eroding important constraints on war. The United States has not taken the position that humanitarian interventions are lawful absent Security Council authorization.

Still, in 1999, the United States participated in NATO’s air war to stop the Serbian ethnic-cleansing campaign in Kosovo, even though the operation lacked a Security Council authorization. The Clinton administration never offered a clear explanation for why that operation complied with international law. Instead, it cited a list of “factors” — like the threat to peace and stability and the danger of a humanitarian disaster — without offering a theory for why those factors made that war lawful. In a seeming acknowledgment that this was dubious, the administration said the Kosovo intervention should not serve as a precedent.

Did Trump have domestic legal authority to attack Syria?

The answer is murky because of a split between the apparent intent of the Constitution and how the country has been governed in practice. Most legal scholars agree that the founders wanted Congress to decide whether to go to war, except when the country is under an attack. But presidents of both parties have a long history of carrying out military operations without authorization from Congress, especially since the end of World War II, when the United States maintained a large standing army instead of demobilizing.

In the modern era, executive branch lawyers have argued that the president, as commander in chief, may use military force unilaterally if he decides a strike would be in the national interest, at least when its anticipated nature, scope and duration fall short of “a ‘war’ in the constitutional sense,” as a Clinton administration lawyer wrote in the context of a contemplated intervention in Haiti.
The Constitution says that only the Congress can declare war and an attack by one sovereign nation upon another sovereign nation has always been considered an act of war. Some may say a little old cruise missile barrage is not an attack but most nations not prostrated by a civil war would disagree. Some might say that The Authorization for Use of Military Force (AUMF) grants the president the power to pop off against any one he chooses, but that would be a surrender of one of Congress' most important powers and really can't be done without making Congress useless. This last point may be President Bannon's goal, but it is one we should no allow to stand.


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