The United States fired 59 Tomahawk cruise missiles at a Syrian airbase last night in retaliation for a chemical attack blamed on the Syrian government. The Syrian government previously declared U.S. troops and military operations in its country to be an invasion of the country. With the expansion of military operations, including troops on the ground, I thought it was worth reposting the recent column on undeclared wars that have become the norm for the United States. Of course, the only thing rising faster than our military intervention is congressional hypocrisy as Democrats express outrage over the failure to secure a declaration of war or authorization. These are the same members who remained silent as President Obama routinely launched missiles at targets in a variety of nations and took this country to war in Libya without even consulting Congress. As on the filibuster issue, the Democrats frittered away any high ground years on the issue years ago.
In recent testimony before the Senate Judiciary hearing, I supported the confirmation of Judge Neil Gorsuch, despite my disagreement with some of his opinions. I specifically noted that his textualist approach to statute and the Constitution is no vice in a federal judge. While I hold many liberal views, I also believe in a formalist and fairly textualist approach to interpretation.
What is curious, however, is how the supporters of such textualism and formalism are largely silent this week as the Trump administration is planning to send more troops into Syria and to intervene in Yemen … all without the declaration of war required by the text of Article 1, Section 8 of the Constitution.
Hundreds of more troops are planned for the Syrian conflict even though the government in the country has declared that any U.S. military operating in the country are “invaders.” We have been conducting extensive bombing raids with troops on the ground in Syria for many months. We have spent billions of dollars on the effort. All without a formal declaration by the Congress.
Now, Defense Secretary James Mattis has reportedly asked the White House to lift restrictions on U.S. military support in Yemen. The war against Iranian-backed Houthi rebels has not been going well for our Persian Gulf allies, particularly Saudi Arabia. The United States wants now to play a bigger role, but notably, the military is asking permission not from Congress but the president. It is his call. That is precisely what the Framers wanted to avoid.
The Constitution has long had its own unreliable allies in Congress. Adherence to the text of the document seems to be a forgotten value when it would take politicians to uncomfortable or inconvenient places. Politicians hate to declare wars. It is not that they hate wars. Wars are popular. Wars can be profitable.
The problem is that they can be blamed if wars do not go well. As a result, they have used open-ended resolutions that can be used by presidents to conduct wars at their whim while allowing politicians to later deny that they ever really supported interventions or were misled if the wars go badly.
This issue most famously came up with Hillary Clinton during her presidential runs. She was eager to express her support for the wars in Iraq and Libya until they became unpopular. Clinton then blamed others and insisted that she was misled, adding, “I wasn’t alone in getting it wrong.”
Of course, the spin ignored the objections at the time that Clinton and others were unwilling to even listen to objections or demands for substantive hearings. These calls were ignored because the members did not want to hear anything that would make it difficult for them to vote for a popular war.
She is certainly right that she was not alone in discarding her duties under Article I. The vote was a popular choice and paraded before cameras … until the war dragged on with thousands of casualties and hundreds of billions in expenditures. Democrats and Republicans share equal responsibility for reading out Article I, Section 8 from the Constitution.
The courts are equally at fault. They have accepted resolutions as substitutes for declarations and, more importantly, have allowed resolutions to become increasing general and vague, thus allowing (as we are now seeing) open-ended power to intervene militarily in virtually any country at any time. Indeed, challengers rarely get any judicial review at all. Years ago, I represented both Democratic and Republican members challenging the Libyan War, but the federal court barred consideration of the merits by the members as lacking “standing” to be even heard in federal court.
We were bombing the capital of a foreign power with a recognized government. We were spending billions in war funding. Yet, the Obama administration was allowed to simply call it not a “war” but a “time-limited, scope-limited military action” or a “kinetic action.” Indeed, the Administration insisted to the court that the President alone defines what is a war. Thus, as long as he does not use that noun, Article I effectively does not apply. You can call it a “police action” or a training exercise or a bean bag and that is all that you need to claim the right to go to war on a president’s sole authority.
Does that track with anyone even remotely familiar with our Framers? These were brilliant men who created a system of carefully balanced powers. Yet, Congress and the courts have made them into the world’s biggest chumps who can be circumvented by simply a change in nouns. Where the Framers wanted Congress to take ownership of any wars, courts now allow members to delegate that authority to presidents and sit as pedestrians watching whether wars prove to be popular or problematic.
History is now repeating itself. No one in Congress wants its own new intervention, but no one wants to be seen opposing interventions against terrorists. Suddenly all of the moral outrage over non-textualist readings of the Constitution are silent … just days after the last hearing. This is why moral outrage in Washington is something of a performance art. This performance, however, is nothing but a tragedy for those who believe in adherence to the text of the Constitution.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has litigated various national security cases.
232 thoughts on “Trump Strikes Syria As America’s Undeclared War Expands”
Not all the left has learned it’s lesson. Kucinich now a paid professional propagandist for the left stream media has reframed his war mongering Party – of Slavery and Fascist prone Socialist secular regressivism aka Marxist Leninism – into yet another tired meaningless worn out depiction of himself and his party in a Mirror.
Trouble is the party is so shattered it’s now the Splinter party and Dennis? Those shards cut one way and it’s your parties wrists that are paying the price.
Monster bomb dropped today on Afghanistan……
Facts emerge: Part II:
But sure, let’s have more war!!!! Not a problem. I read this great comment–“It’s almost like Hillary were the president.” A lot of truth to that!
Facts emerge: Part I:
And gets support from the moderate centrists Constitutional Republic supporters. Never such a hero to real women and a bane to sexists this is Wayne Morse Caliber but now from an unexpected source
China is ordering uip coal from the USA and sending back canceled orders to North Korea even that which was off loaded at Chinese docks.
The world’s largest emerging market capitalism country took the economic route and their was some mention of US steel or it could have been using the coal to make US quality steel that part got a little fuzzy.
Either way. another huge boost for the USA.
That’s not only the coal miners. 100-200 car consiists of coal going from coal mines to our West coast ports are a boon to the railroad industry including track laying and repair, signal equipment etc. enabling them to join in on the infrastructure rebuild of bridges and tunnels. At end of line are longshoreman and seafarer’s union members and their whole support system. Next task to find east bound cargo for the empty coal cars perhaps iron or other ores.
Assumng this is not a …..i’ll not use the words for fear of bad luck….ten years could see the national debt cancelled. A billion and a half chinese use an awful lot of coal but the emphasis is on that used for steel – so far. .
Jill, ICC is toothless when it comes to prosecuting the US or our allies for war crimes.
I agree. I’m just saying that if we wanted to take another option besides burning the village to get our own people in power, we could!
Wikileaks has just put out a ton of documents on the USGinc. plans to take over Syria since at least the 80s.
Jill, Tillerson announced today at the G7 meeting that “The United States will hold responsible anyone who commits crimes against humanity” – according to whatever USGinc uses for criteria so I doubt there will be any kind of repercussions —
“U.S. to Hold Accountable Those Who Commit Crimes Against ‘Innocents'”
I haven’t read every comment, but pictures cause Americans to be outraged. Especially if small children are in them. “What is being done about this”? We are. If not us, who? Just reading that children are tortured in front of their parents. Tortured because Saddam wanted information. Information they didn’t have. We are a people who can’t stand by and watch this horror, most of us are anyway. Do we know how many people survived the gas attacks? Our people were unharmed. The best ending possible.
You’re correct Sandi. Pictures do cause Americans to be outraged. That is why pictures are often manufactured as propaganda. It is also why we don’t see the victims of our nation’s attacks in the newz.
If you understand that seeing children is upsetting, then perhaps you might grant that actually experiencing your children being killed by the US and our allies is equally upsetting to our victims. It might even start us thinking about stopping murdering other nation’s children? Perhaps that would be a good idea???
No one has to refrain from doing something about attacks. This includes US attacks. We have the ICC and each and every war crime could be brought before that court. The truth of the matter could be found and legal action against the guilty taken.
If you can’t stand to watch the horror then why do you encourage this govt. to inflict the horror of bombing and killing civilians, to include children, on other nations? It seems as if you do feel some lives are more equal than others.
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