The Trump administration justified its 2017 bombing of Syria by citing the president's commander-in-chief authority under Article II of the Constitution "to defend important US national interests." But Article II gives the president power to command the US military only after Congress has authorized war pursuant to its Article I authority.
On May 22, 2017, Protect Democracy, a group of former Obama administration lawyers, filed a Freedom of Information lawsuit to make public the Trump administration's memo detailing its legal justification for the April 2017 US military strike on Syria. Although the administration says that memo is classified, Protect Democracy has discovered that the classified portion can be easily redacted. However, the administration refuses to make the memo public. On Monday, Protect Democracy filed an emergency motion for release of the memo in light of the "potentially imminent military action" in Syria.
Bombing Syria Would Violate the UN CharterEven if an attack by Trump on Syria did not violate the War Powers Resolution, it would still violate the United Nations Charter. The United States has ratified the Charter, making it part of US law under the Supremacy Clause of the Constitution, which states that treaties shall be the supreme law of the land.
The Charter says that countries "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state."
A country can mount a military attack against another country in self-defense after an armed attack or if the Security Council has authorized it. Neither has occurred in this case.
Syria has not attacked the United States or any other country. "The use of chemical weapons within Syria is not an armed attack on the United States," according to international law expert Notre Dame law professor Mary Ellen O'Connell.
Nor has the Council granted the United States license to use military force against Syria. Staffan de Mistura, the UN Special Envoy for Syria, called for compliance with resolution 2401, passed on February 24, 2018, in which the Council demanded an immediate cessation of hostilities to enable humanitarian assistance and medical evacuation. Resolution 2401 ends by stating that the Security Council "Decides to remain actively seized of the matter." That means the Council -- and only the Council -- has legal authority to order any measures, forceful or otherwise.
Any military attack that Trump would launch against Syria would therefore violate the Charter. In fact, under Article 51, Assad would have a valid self-defense claim in the event the United States initiated an armed attack on Syria. Russia could also mount airstrikes in collective defense of Syria.
In a tweet, Trump decried the "humanitarian disaster" created by the gas attack in Syria. But "humanitarian intervention" is not an established norm of international law. The use of military force is lawful only in self-defense or with Security Council approval. Neither is present in this case.
Bombing Syria Could Lead to a Dangerous Confrontation With RussiaCNN Turk reported that a US Navy destroyer -- the USS Donald Cook -- armed with 60 Tomahawk cruise missiles is now located off the coast of Syria. A Navy source confirmed that report to the Washington Examiner, saying the destroyer "got underway in the eastern Mediterranean within range of Syria Monday."
Russian leaders warned that any use of military force by the United States would have "grave repercussions."
Last month, Russian government officials threatened to respond with military force if Trump were to attack Syria and thereby endanger the lives of Russian soldiers stationed there. "In the event of a threat to our military servicemen's lives, Russia's Armed Forces will take retaliatory measures to target both the missiles and their delivery vehicles," Russian Army Gen. Valery Gerasimov warned.
What Should Be Done?The Security Council met on Tuesday but could not agree on a resolution. Russia vetoed a US-prepared draft that would create a mechanism to assign responsibility for chemical attacks. The United States vetoed a Russian-drafted resolution that would have required investigators to report their findings to the Council, which would in turn assign responsibility.
But Nikki Haley, US ambassador to the UN, declared that the United States would act against Assad, with or without the United Nations.
There is already an established body that has launched an investigation into the allegations of chemical weapons use in Douma. The Organization for the Prohibition of Chemical Weapons (OPCW), with support from Russia and Syria, is gathering and analyzing data from all available sources. OPCW's Director-General, Ambassador Ahmet Uzumcu, is preparing to deploy a fact-finding mission team to Douma to investigate.
Immediately after Trump announced that the US bombing of Syria was imminent, Maria Zakharova, Russian Foreign Ministry spokesperson, wrote on Facebook, "Smart missiles should fly toward terrorists, not the legal government that has been fighting international terrorism for several years on its territory."
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