On Friday, the Washington Post published a much-needed, comprehensive analysis of the American military campaign in Syria. Far removed from the headlines, American forces have now established the dominant military presence in one-third of Syria, and the Trump administration has now committed to keeping them there indefinitely, pending a satisfactory and stable peace agreement between the warring parties.
Make no mistake: This is a wise course, and it is to Trump’s credit that he backed away from previous pledges to leave Syria.
An American retreat would have been a serious error. We would have created a yawning power vacuum in northeastern Syria — one that the Assad regime, Russia, and Iran would have been eager to fill. We would have signaled to our allies that we are fickle and faithless, encouraging them to cut deals with our enemies. In other words, an American retreat would have led to a hostile advance — and we would have unlearned the harsh lessons of America’s reckless abandonment of Iraq in 2011.
Moreover, we are achieving significant strategic gains at a quite reasonable expense. According to the Post, American forces maintain the dominant military position in the region despite a deployment that numbers — depending on the month — roughly 4,000 soldiers. That represents a force slightly smaller than a single brigade combat team.
But there’s a problem — a serious problem. Trump’s wise policy is blatantly unconstitutional. He is engaged in the invasion and continued occupation of a hostile foreign state. Even under his administration’s quite expansive definition of its military powers, that’s an act of war that requires congressional consent.
To be clear, the sin is not Trump’s alone. The American military incursion into Syria began under Barack Obama, and it began without congressional approval. The military authorizations of 2001 and 2002 — authorizing the use of force against al Qaeda and its allies and Saddam’s regime in Iraq — plainly do not apply. Consider, for example, the language of the 2001 resolution:
The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
This is language clearly targeted at al Qaeda and the Taliban. It is not a catch-all provision designed to authorize force against any jihadist force, anywhere, for all time. It’s especially not intended to grant the authority to invade and occupy a substantial part of Syria to fight jihadists who are fighting al Qaeda.
So, if the existing authorizations don’t apply, can the president credibly argue that the invasion and occupation of Syria is empowered by his inherent Article II authority as commander in chief?
Not if he reads his own lawyers. Earlier this year — thanks in large part to the efforts of my friends at Protect Democracy, who filed suit to force the Trump administration to force disclosure of its legal justification for strikes against the Assad regime — the Trump administration released a comprehensive memorandum. While this memorandum doesn’t strictly apply to the campaign against ISIS, its language is still highly relevant.
Boiled down to its essence, the administration argues that some military actions constitute “war,” and some do not. Thus, there is a two-part analysis:
First, we consider whether the President could reasonably determine that the action serves important national interests. . . . Second, we consider whether the “anticipated nature, scope and duration” of the conflict might rise to the level of a war under the Constitution.
Let’s grant the first prong. ISIS is in a state of open warfare against the United States. It executed American citizens, plotted and inspired terror attacks against Americans, and engaged in warfare against American allies. Thus, responding to ISIS — wherever it exists — serves important national interests.
But that’s not the entire test. The second prong is key. Administration lawyers argued that a conflict is war “only when characterized by ‘prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’”
Moreover, it is significant whether ground troops are deployed and whether they are “likely to encounter significant armed resistance and whether they were likely to ‘suffer or inflict substantial casualties as a result of the deployment.’”
This test has already been met. The campaign against ISIS has been immensely destructive. Cities and villages lie in ruin. ISIS fighters have died by the thousands. Americans have died in combat. We have even engaged in a pitched battle with Russian mercenaries, a battle I described earlier this year and the New York Times detailed in May. The Times story opens like this:
The artillery barrage was so intense that the American commandos dived into foxholes for protection, emerging covered in flying dirt and debris to fire back at a column of tanks advancing under the heavy shelling. It was the opening salvo in a nearly four-hour assault in February by around 500 pro-Syrian government forces — including Russian mercenaries — that threatened to inflame already-simmering tensions between Washington and Moscow.
In the end, 200 to 300 of the attacking fighters were killed. The others retreated under merciless airstrikes from the United States, returning later to retrieve their battlefield dead. None of the Americans at the small outpost in eastern Syria — about 40 by the end of the firefight — were harmed.
That is the story of but one battle in a larger war — a battle that could have touched off a great-power conflict.
And the hostile armed invasion and continued occupation of a foreign power is an act of war under any meaningful definition of the term.
None of this means that American military interventions are unlawful under international law. America has a right to defend itself, and that right to self-defense includes the legal ability to conduct military operations in sovereign nations when that sovereign nation is “unable or unwilling” to combat the threat to the U.S. But American law is key, and the American constitutional order should be our prime concern.
The Trump administration is doing the right thing the wrong way, and that matters. The failure to follow the constitutional process means that American forces are in harm’s way without the necessary congressional debate and the necessary congressional approval. There is no good reason for this failure, other than the fact that members of Congress seem to prefer to place the responsibility for our nation’s security entirely on the executive branch — freeing them to be a mere “parliament of pundits” (to borrow my colleague Jonah Goldberg’s memorable phrase.)
With a new congress, however, come new opportunities. Can the House and Senate take just a few days’ time away from the news cycles of the moment to fulfill one of their most basic and important constitutional functions? Perhaps. But the cynic in me suggests that the bipartisan abdication of congressional authority will continue, and the power of the imperial presidency will only continue to grow.