Presidential War: From “Not Normal” to the New Normal

A US attack on Syria is imminent, but don’t expect a congressional debate on whether it’s wise or lawful, the Wall Street Journal reported this morning. “I think for a surgical strike, they easily have the authority to do it,” says Senate Foreign Relations Committee chairman Bob Corker. 

That’s the same Senator Corker who, not long ago publicly agonized that President Trump’s “volatility” and recklessness could put America “on the path to World War III.” One wonders what he could have had in mind if not something like this

Might I suggest that taunting and threatening a nuclear-armed rival is far more disquieting than insulting Mika Brzezinski, tweeting out CNN/Wrestlemania mashup videos, or whatever else usually provokes cries of “not normal” from official Washington? This particular tweetstorm will likely be followed by a barrage of Tomahawk missiles and the risk of a wider war. Maybe Corker and his colleagues should show some concern about it and do something—like their jobs.

Corker’s claim that the president “easily [has] the authority” to launch airstrikes is nonsense. In the absence of an imminent threat, the Constitution denies the president the power to initiate war. That this is supposed to be a “surgical” attack is a distinction that doesn’t make a constitutional difference. No prominent figure in the Founding Generation thought the president had the right, absent authorization from Congress, to engage in “limited” war. Washington even doubted his authority to take unilateral action against hostile Indian tribes, writing that “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

In this case, Congress hasn’t authorized an attack against the Assad regime. The 2001 AUMF—already stretched beyond credulity to underwrite the war against ISIS—can’t be made to fit what Trump plans. 

Trump has no legal authority to order the strike; what’s more, his administration insists that we have no legal right to hear the reasons he thinks he can. Last year, DOJ’s Office of Legal Counsel drafted a legal memorandum justifying Trump’s drive-by Tomahawk attack on a Syrian airfield in April 2017. The administration is currently fighting in federal court to prohibit the release of that memo, in a Freedom of Information Act lawsuit filed by the the Protect Democracy Project. As Protect Democracy noted in a filing Monday, “the withheld documents are serving as the working law that embodies [the administration’s view of] the governing legal authority for the use of military force.” As the administration contemplates ordering military action in Syria—and elsewhere—aren’t the American people entitled to know what limits, if any, it acknowledges on its authority to wage war? Apparently, not: that’s on a need-to-know basis, and we don’t need to know.

In 1793, James Madison wrote that “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” Were it otherwise, he explained, “the trust and the temptation would be too great for any one man.” Human nature’s “most dangerous weaknesses… ambition, avarice, vanity, the honorable or venial love of fame” all conspire against “the desire and duty of peace.” When he issued that warning, Washington was president—a man with a storied record of resisting such temptations. Today… well, it seems clear that advances in destructive power and the concurrent degeneration of presidential character have made Madison’s warning even more vital.

And yet, “this town” doesn’t seem especially concerned about Trump’s deranged and lawless threat. A few hours after the tweet, Twitter trends for Washington D.C. showed it registering behind Paul Ryan’s retirement, #NationalPetDay, and Mariah Carey’s “battle with bipolar disorder.” 

 

The gulf between our first president and our 45th is pretty vast; but our downward spiral seems to have picked up speed in recent decades. I’m old enough to remember when people considered Barack Obama reckless for blurting out his Syrian “red line” at a press conference, wrung their hands over George W. Bush’s “cowboy” rhetoric, and feared that Dan Quayle was too dumb to trust “a heartbeat away” from the presidency. 

In the space of a week, President Trump has whipsawed from demanding an immediate withdrawal from Syria to warning about the “Big price” Assad and Putin are about to pay. The rest of us are left wondering what prompted the reversal: could Trump’s legal difficulties have played a part, or was it just something he saw on TV? Either way, according to Senator Corker—and most of official Washington—waging war is Trump’s call. At this point, what could possibly convince them that’s too big a risk to take?