Secretary of Defense Jim Mattis told a Senate committee in October that a 16-year-old law authorizing military force against al-Qaeda and its enablers still provided a firm legal basis for military action against the Islamic State.
At the time, Syrian Defense Forces had just recaptured the city of Raqqa, which for three terrible years had been the capital of the terror group’s “caliphate.” It was the beginning of the end for ISIS in Syria.
Fast forward three months, and ISIS is a shadow of its former self, with a few thousand hard-core militants desperately holding on to slivers of territory in Syria’s Middle Euphrates Valley.
Smashed by U.S.-backed Kurdish militia and forces loyal to the Syrian regime, the once-fearsome terror group now controls less than two percent of the territory it occupied at the height of its power, according to the U.S. coalition to defeat ISIS. Though it still retains the ability to carry out guerrilla-style attacks, ISIS is no longer an existential threat to either the Syrian or Iraqi governments.
Now, Washington is looking at what comes next in Syria. Far from withdrawing the roughly 2,000 U.S. troops deployed on Syrian soil, as Syrian President Bashar al-Assad has demanded, President Donald Trump’s administration is preparing for a long-term presence there.
U.S. military commanders have taken care to describe the Syria deployment as part of a broader counter-terrorism mission that falls under the rubric of the 2001 Authorization for the Use of Military Force (AUMF), the same law Mattis testified about in October. After U.S. airstrikes wiped out 150 ISIS fighters in eastern Syria last week, coalition commander Maj. Gen. James Jarrard said the troops had to stay because the anti-terror mission in Syria was “far from over.”
“We cannot take our focus off our mission, and we must not lose our momentum in taking these terrorists off the battlefield and preventing them from resurfacing somewhere else,” Jarrad said.
Secretary of State Rex Tillerson has offered a much more expansive vision for the U.S. military effort in Syria. Speaking at Stanford’s Hoover Institution on Jan. 17, Tillerson outlined five “end states” the Trump administration desires in Syria, only one of which has even a tenuous connection the 2001 AUMF.
So what is the administration’s plan for Syria?
As Tillerson explained, the U.S. is going to eradicate ISIS and al-Qaeda fighters wherever they remain in the country. Then, Washington will usher in a “stable, unified, independent Syria” under a government led by someone other than Assad.
At the same time, U.S. forces will counter Iranian influence in Syria, denying Tehran a land bridge through Syrian territory into Lebanon. While tackling the Iranian problem, the U.S. military will also make Syria safe for returning refugees and internally displaced persons.
And finally, Washington will guarantee, once and for all, that Syria is free of weapons of mass destruction.
In his remarks at Hoover, Tillerson denied the administration’s vision amounts to “nation-building” or “reconstruction.” But the plan includes the kind of strategic objectives Washington pursued, and is still pursuing, in its long-term interventions in Afghanistan and Iraq. A notable difference is that Congress specifically authorized both of those wars, but has not done so for Syria.
Most of official Washington has shrugged at this state of affairs, but a small contingent of skeptics is raising questions about the uncomfortable reality that American troops are deployed, uninvited and without congressional or United Nations authorization, to a sovereign country that has not attacked the U.S. or its allies.
Daniel DePetris, a fellow at the realist-oriented Defense Priorities think tank, is one such voice arguing that the Trump administration’s plan for Syria distorts the 2001 AUMF beyond recognition. Former President Barack Obama’s administration stretched the authorization when it began the fight against ISIS in Syria, and now the Trump administration is doing so to a greater degree with its ambitious post-ISIS project, he says.
“Mattis and Tillerson’s interpretation of the 2001 AUMF is a continuation of the same legal justification the Obama administration used upon announcing the counter-ISIS military campaign to the nation,” he told The Daily Caller News Foundation in an email. “The problem is this is an overly broad argument made by those in the executive branch who would always prefer more authority to wage war.”
Congress passed the 2001 AUMF just a few days after the 9/11 attacks, giving the president the green light to use “all necessary and appropriate forces” against individuals and countries involved in the attack. In the nearly 17 years since, U.S. administrations have relied on the law — along with a generous interpretation of executive authority to make war — to provide legal cover for worldwide military intervention without input from Congress.
The text of the 2001 Authorization for the Use of Military Force empowers the president to all 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.” It also authorizes military force against any country or organization that harbored the 9/11 attackers.
That definition certainly applies to al-Qaeda, which carried out the attacks, and the Taliban regime of Afghanistan that hosted Osama bin Laden and his group’s top commanders. U.S. officials have also lumped in al-Qaeda’s “associated” or “affiliated” forces, making the AUMF the legal basis for operations against groups such as al-Shabaab in Somalia and al-Qaeda in the Islamic Maghreb in North Africa.
In short, the 2001 AUMF has been the glue holding together the various iterations of the global war on terror under former President George W. Bush, Obama and Trump. But the kind of Iran-centric mission outlined by Tillerson at the Hoover Institution stretches the 17-year-old authorization to the breaking point, DePetris argues.
Denying Iran its objectives in Syria would “involve plunging American troops into a completely different mission, something far more complex than driving ISIS from Raqqa, Deir ez-Zor, or Kobani,” he wrote Jan. 23 in Real Clear Defense, referring to former ISIS strongholds in Syria. “The mission, in fact, would be so different that it would require a whole new authorization from Congress before the strategy could be carried out.”
Absent a new Congressional authorization or U.N. resolution, the U.S. war in Syria amounts to an illegal occupation, according to realist foreign policy scholar Daniel Larison.
He wrote Jan. 17 in The American Conservative:
According to Tillerson, U.S. forces will remain in Syria on an open-ended mission to ensure that the recognized government of the country does not establish control over its own territory. To call this policy deranged would be too generous. The U.S. has no business in having a military presence in another country without its government’s permission, and it has no right to maintain that presence for the explicit purpose of preventing that government from exercising control inside its own internationally recognized borders.
Supporters of the U.S. military intervention in Syria have countered that the president’s war-making authority under Article II of the Constitution gives Trump all the legal cover he needs for an anti-terror campaign there, however broadly defined.
Going back to at least former President Bill Clinton’s administration, executive branch lawyers have argued the president can order a unilateral strike if he believes doing so is in the interest of national security. Trump invoked this broad authority in April, when he ordered a cruise missile strike against a Syrian military base in response to Assad’s use of chemical weapons.
Whether Trump can claim the same authority to launch a long-term intervention without Congressional approval is a murkier question. The War Powers Act of 1973, passed over then-President Richard Nixon’s veto, says a president can only deploy U.S. troops into a conflict if he has an approval from Congress or if the U.S. itself has been attacked.
But the law muddies the issue by requiring the president to pull back troops after 60 days if the engagement was not authorized by lawmakers, suggesting that a shorter unilateral deployment would be permitted.
In any case, U.S. soldiers have been in Syria for far longer than 60 days, and no U.N. resolution or act of Congress has authorized what the Trump administration is now proposing to do there.
“This is a violation of our U.S. Constitution, which should be enough reason for it not to occur,” DePetris said of the plan.
Congress on the sidelines
Larison, DePetris and other intervention skeptics blame Congress for letting three consecutive presidents assume what amounts to unlimited power to decide when and where to commit U.S. forces. Lawmakers prefer to leave such politically fraught decisions to the executive, abandoning their constitutional duties, DePetris argues.
“The legislative branch has atrophied from far too many years of silence on matters of war and peace, enabling the Bush, Obama, and now Trump administrations to wage war without authorization or proper oversight,” he told TheDCNF. “Congress’ role is just as the Constitution outlined: authorize an armed conflict before the first U.S. troops are deployed in theater and the first bombs are dropped.”
A divided Congress in 2013 — with Democratic majority in the Senate and Republican majority in the House — declined to give Obama an authorization to intervene in Syria. Concerned with backlash from a war-weary public and unable to agree on the scope of an authorization, lawmakers never held a full vote. Instead, they left Obama to conduct military operations in Syria on the back of the 2001 AUMF, as Trump is doing now.
Content to rely on the existing authorization for any military action with a conceivable nexus to counter-terrorism, Trump has not asked for a fresh AUMF to underpin his Syria plan. And, aside from a few foreign policy dissidents, lawmakers in his own party are in no hurry to press for one.
One such outlier, GOP Rep. Walter Jones of North Carolina, speaks of the situation with open disgust. The absence of debate on Syria amounts to an abdication to the executive branch of Congress’ Article I power to declare war, Jones told TheDCNF.
“Here we are again as a Congress, sitting in the stands, watching a failed foreign policy develop, and we don’t even debate it,” he said in a phone interview. “I’m talking about a policy debate, I’m not talking about an amendment debate, I’m not talking about a speech.”
“We have foregone our Constitutional responsibility as a Congress,” he added.
Nor has Washington’s think tank archipelago raised much concern about possible constitutional deficiencies in Trump’s Syria strategy. Big names in the bipartisan foreign policy community such as Brookings Institution, American Enterprise Institute, and Center for a New American Security have produced dozens of analyses about how to bring about a post-ISIS, post-Assad Syrian state. There has been much less discussion about whether such a mission is a violation of U.S. or international law.
With the foreign policy establishment and the administration largely silent about the need for a new AUMF, a handful of lawmakers have taken up the cause. On the Democratic side, Sens. Ben Cardin of Maryland, Cory Booker of New Jersey, and Chris Murphy of Connecticut, all members of the Senate Foreign Relations Committee, have in recent weeks pushed for a new war authorization.
A contingent of intervention skeptics in the Republican party, among them Jones, Rep. Thomas Massie and Sen. Rand Paul of Kentucky, and Sen. Mike Lee of Utah, have also argued that Trump needs congressional approval for further military action in Syria. They are viewed with suspicion by a hawkish Republican foreign policy establishment with a hefty appetite for military intervention.
At the end of the day, lawmakers are unlikely revisit the AUMF unless American voters get “riled up” over the prospect of another open-ended war in the Middle East, Jones says.
“They’re not feeling pressure from the people of America,” he said, adding that public indifference has made it easy for lawmakers to “sit on the sidelines and let the administration get blood on its hands, not Congress.”
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