On Use of Force, Law Is Toothless, Not Pointless

       The results of President Trump's decision to launch missile strikes against the Syrian air force base in retaliation for its use in a chemical weapons attack on civilian populations can now be toted up. In short, the strikes achieved little in terms of military or diplomatic objectives, but Trump got a bump in his approval rating and a distraction from the investigation into possible collusion between his campaign and the Russian government.
       The episode also lays bare for all to see the rank hypocrisy of Republican politicians and Republican voters who rushed to Trump's support despite having opposed any similar U.S. intervention four years ago when President Obama was in the White House. A survey by the Pew Research Center found overall support for Trump's action — 58 percent to 36 percent — with Republicans supportive by a 4-1 margin: 77 percent to 19 percent.
       Four years earlier, Pew's survey found Republicans opposed to intervention: 35 percent in favor, 40 percent opposed. The 2013 survey found Democrats and independents opposed by larger margins: 48 percent to 29 percent for Democrats, 50 percent to 29 percent for independents. But it was opposition from Republicans on Capitol Hill that forced Obama to fold his cards. Obama had argued that he could act on his own but explained that he wanted Congress's support to strengthen the U.S. position.
       Trump's all but unilateral decision prompted a useful if inconclusive debate over the legality of his actions, with no more than minimal consultation with leaders in Congress and no resort to international law or the peacekeeping machinery of the United Nations. The history of this and similar debates earlier gives pause to any sticklers for separation of powers or international law. But it is too facile to treat either domestic or international law merely as toothless restraints on the president's power to use military force.
       The constitutional debate over the president's warmaking powers is long-lived, a built-in feature of the separate provisions that make the president the commander in chief but give Congress the power to "declare" war. The debate was well joined in the Vietnam era. The various legal challenges to the Vietnam War were never fully adjudicated, but Congress eventually responded by enacting the War Powers Act in an effort to limit any extended commitment of U.S. forces abroad without congressional approval.
       The law, adopted in November 1973 over President Richard Nixon's veto, requires the president to notify Congress within 48 hours of committing U.S. forces abroad and requires withdrawal of U.S. forces within 60 days unless Congress affirmatively approves. Trump followed other presidents' examples by notifying Congress of the missile strikes two days after the launches but without formally acknowledging any obligation to do so.
       The three-paragraph letter sent to Congress on April 8 was admittedly brief, but constitutes the most formal statement of Trump's intentions and justifications for his decision. "I directed this action in order to degrade the Syrian military's ability to conduct further chemical weapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons," Trump wrote, "thereby promoting the stability of the region and averting a worsening of the region's current humanitarian catastrophe."
       Two days earlier, Trump had announced the missile strikes to Americans and the world in a televised address from Mar-a-Lago not even three minutes long: heavy on bathos, light on tactical or legal content. Now, more than a week later, Trump has still been light on explaining the policy or exploring the implications even as his principal advisers send conflicting signals on long-term goals regarding the future of the Syrian strongman Bashar Al Assad.
       As for the War Powers Act, Charles Stevenson, an adjunct professor at Johns Hopkins University's School of Advanced International Studies in Washington, argues that the law has achieved its purposes even without formal presidential acknowledgment. Stevenson, an aide to the dovish Iowa senator Harold Hughes back in the Vietnam era, notes that no overseas conflict since 1973 has lasted more than three to four months without congressional approval.
       International law operates as even less of a formal restraint on presidential warmaking, but it too should not be completely discounted. Trump's televised address sounded not like an "America First" foreign policy but more like what some experts are calling an emerging doctrine of humanitarian intervention in international law.
       Ironically, Trump has gotten support for the missile strikes from a liberal veteran of the Obama administration: Harold Koh, the human rights-minded Yale law professor and State Department legal adviser under Obama. Koh argued in a law review article that humanitarian intervention, even without U.N. Security Council approval, may be legal under international law if various conditions are met. The humanitarian crisis must be one that threatens international order, and the intervention must be limited and necessary to prevent a per se violation of international law, such as use of chemical weapons.
       Trump's impulsive resort to missile strikes was satisfying no doubt: an eye poke to Assad and, incidentally, to his Russian ally Vladimir Putin. But Trump could have strengthened his case, and shown more respect for public opinion at home and abroad, by dotting the i's and crossing the t's of applicable law, even now if only after the fact.