A Longer Look at Syria and War Powers

Louis Evans is a writer living and working in San Francisco. You can read some more of his political commentary at evanslouis.com. He likes explaining stuff.Last night, the U.S. Navy launched 59 cruise missiles at Shayrat Airfield in Syria. Here’s a summary of the Syrian Civil War, the nature of the attack, the U.S.’s response, and its status under American law.

The Basics

• The Syrian Civil War The Syrian Civil War began on March 15, 2011. The major factions are:
  • The Assad Regime (aka the Syrian Government) In power in Syria since the late 60s/early 70s (depending on how you count). Ba’athist and dictatorial. Hasn’t held (legitimate) elections in decades. Currently led by Bashar al-Assad and supported by Iran, Hezbollah, and Russia.
  • The Syrian Opposition (aka the rebels) A wide range of armed opposition groups within Syria, including army defectors, Islamist groups (inc. a rebranded, disaffiliated former al Qaeda subsidiary), and others. Hard to talk about as a unit, because their number is always changing and the power and alliances between them is constantly shifting. Supported by Turkey, and allegedly by the U.S.
  • ISIS (aka ISIL) An Islamist quasi-state organization holding territory in Iraq and Syria. Theocratic and oppressive. Wildly unpopular with everyone. Plays no (direct) role in this story.
  • Rojava A de facto autonomous region in northern Syria. The Syrian slice of Kurdistan—a proposed nation of Kurds, an ethnic group found in Syria, Turkey, Iraq, and Iran. Its army is the SDF, which is in turn mostly composed of the YPG, a Kurdish militia. Supported by the US. Plays no (direct) role in this story.
• Chemical Weapons Chemical weapons are banned by the Geneva Protocol, a 1925 treaty agreed upon by 140 countries. They’re banned because, one, their effects are horrifying, and two, they are especially likely to harm civilians and cause lasting damage to the environment. They were widely used in World War I, but since the Geneva Protocol was signed, European nations have largely not used chemical warfare on one another (though they have been used in a range of other conflicts).
• Chemical Weapons in the Syrian Civil War There have been over 60 instances of reported chemical attacks in the Syrian Civil War. The most notable attack was the Ghouta attacks of August 21, 2013, in which several hundred to near two thousand people were killed with sarin gas. Opposition forces blamed the Assad regime, which stockpiles these particular weapons; the Assad regime blamed the rebels. This incident led the Obama administration to ask Congress to approve military action in Syria. Before Congress could come to a decision,, the Assad regime struck a deal with Russia and the US to turn over its weapons, and President Obama did not deploy military forces against Syria.
• The Khan Shaykhun Chemical Attack On April 4th, 2017, Khan Shaykhun, a town controlled by Tahrir al-Sham, an Islamic Opposition group with clear ties to al Queda, was hit with an airstrike, followed by extensive chemical effects. The nerve gas killed dozens and wounded hundreds, including civilians and children. If confirmed, this attack would be the deadliest chemical attack in Syria since the Ghouta attacks described above. The Syrian government denied responsibility for the attack, and Russia agrees, but the claims are not regarded as credible.
• The American Retaliation On April 6th, the US launched 59 Tomahawk Cruise missiles at Shayrat Airfield, a Syrian military facility where the US believes the chemical weapons originated. (The Tomahawk missile is bigger than what you probably think of when you think of “missile”: it weighs about half as much as an entire WWII fighter plane and is more like an entire bomber that you don’t need to pick up after you use it. It has been a favored weapon for American presidents who wish to punish another leader without escalating into full-scale war since the early 90s.)

The Law, or, Can We Do That?

This is a very tricky question. Scholars, Congress, and the President all have different opinions about what decisions the President can make on his own, and there is no clear authority to judge between them. When it comes to rules guiding how countries can behave when they attack one another, the U.S. Constitution (and most of international law) tends to assume that military conflicts happen in declared wars, where the countries involved have officially announced their intentions to wage war upon one another. In a declared war, the separation of powers under the Constitution is clear: Congress holds the power to declare war; the President, as Commander in Chief of the military, has the power to lead the military in the war that Congress declared.However, ever since President Adams’s Quasi-War with France (which came with its own Congressional resolution), American Presidents have found ways to commit military forces without formal declarations of war (often with legally questionable justifications). In fact, the U.S. has not declared war since 1942: We entered the Korean War through a U.N. resolution, the Vietnam War as part of Congress’ Gulf of Tonkin Resolution, and so on.In 1969, President Nixon began secretly bombing Cambodia—which is insane, when you think about it. The U.S. Air Force bombed a country and the President just . . . didn’t tell anyone. In response, Congress passed the War Powers Resolution. According to the 1973 law, the President must consult with Congress before deploying forces, report to Congress when forces are deployed, begin withdrawing forces within sixty days if Congress does not pass a resolution authorizing them, and remove them if Congress so directs.Since the War Powers Resolution went into effect, Presidents have submitted well over a hundred reports to Congress, but, it’s not clear how effective the War Powers Resolution has actually been. When Reagan struck a compromise with Congressional leaders to affirm an eighteen-month stay for marines in Lebanon, he asserted that he was simply recognizing his power as Commander in Chief. President Clinton kept U.S. troops in Somalia for nearly a year longer than the deadline Congress attempted to set for them, and continued bombing Kosovo for more than two weeks after the 60-day deadline, with only shaky legal justification. And whether the authority the War Powers Resolution grants Congress to require the president to withdraw troops is even Constitutional is actually an open question: courts typically try to avoid weighing in on the relationship between Congress and the President.Many of these issues came to a head in 2011, when the U.S. took part in a NATO bombing campaign against the Libyan government for well over sixty days without Congressional approval. The President claimed that this use of force was too small and indirect to be covered by the War Powers Resolution. Some of the President’s lawyers, along with several members of Congress, disagreed. Congress ultimately passed a resolution asserting that it had the power to order the U.S. to withdraw—but then it didn’t actually try to exercise that power! Because Congress never actually tried to get the President to cease participating in the bombing, we have no idea whether a President would actually listen to Congress in a situation like that, or what would happen if a President didn’t.

What does all this mean for President Trump’s actions in Syria?

The law outlining and constraining the President’s powers in cases like this is both indeterminate and dynamic. And while previous Presidents have taken steps that were, at the time, unprecedented, this administration’s actions represent a step beyond those of previous presidents. President Trump has no declaration of war, and no specific Congressional resolution authorizing force against the Assad regime. He is not protecting U.S. soldiers or citizens, or responding to an attack upon them. He is not acting in accordance with a U.N. resolution, or NATO commitment. But past experience suggests that he probably won't face any kind of practical consequences for acting out of accord with earlier precedents. Right now, Republican Senators are split.

Some Shameless Editorializing from the Author

To me, the true lesson of the war powers debate is that we don’t have laws as much as we make laws. The war powers precedents have emerged not from an official document but from particular crises. The President and Congress negotiate and they press their relative advantages. But in a democracy, all of us play a role in every decision of state—and so we play a role in every precedent laid down, in every choice that establishes the future shape of American war powers.What do I want for my country? What do we all want for our nation? The choice in Syria is crushing; all of the options have their own bitter consequences. And the choice in general is yet harder. Is America the world’s police? How can we square a commitment to peace with a commitment to protect the vulnerable? When the leader of a nation poisons his people, what should we do?