War Powers

Ever-Expanding Theories Of Unilateral Article II War Power

By Jack Goldsmith
Thursday, September 17, 2015, 6:13 AM

In September 2014 Congress authorized a $500 million program to train and equip (T&E) Syrian rebels to combat ISIS and other terrorist groups in Syria.  One disheartening headline from yesterday’s SASC hearing is that only "four or five" of the first 54 fighters trained are still in the fight.   Lost in these and other takeaways from the painful-to-watch SASC hearing was an exchange that revealed yet another novel interpretation of Article II to expand the President’s authority to use force—this time against Syrian forces who attack the T&E forces.  

Cody has the summer background here, so I give only a summary.  From the beginning of the program some have questioned whether the United States could defend the U.S.-trained Syrian rebels if Assad attacked them.  In March Secretary Carter told the Senate Foreign Relations Committee that the administration had not made a legal determination on that issue.  Four months later, Carter stated that he still wasn’t “sure about the legalities” of defending the T&E forces.  Then in late July, the al-Nusra Front, Al-Qaeda’s branch in Syria, decimated a unit of T&E forces.  This attack appeared to motivate the lawyers.  A few days later, the WSJ reported, the administration determined that it could in fact defend the trained rebels, including from attacks by Assad.  What was the theory, since even the very stretchable 2001 AUMF cannot here be extended to Assad?  In August an anonymous official said that the theory was “Article II of the Constitution.”

Yesterday the administration reiterated the Article II theory, this time with public attribution, in an exchange between Senator Kaine, Centcom Commander General Austin, and Undersecretary of Defense for Policy Wormuth (about 1:50 on the tape):

KAINE:  So the potential battlefield against ISIL is expanding and we're actually maybe engaging in some new activity.  My understanding, General Austin, you indicated we have -- we have undertaken airstrikes to support trained Syrians in Syria when they have been threatened by al-Nusra, correct?

AUSTIN: That's correct, sir.

KAINE:  And we are also prepared as of a change in policy from early August to undertake airstrikes to protect those Syrian fighters if they fall under threat and attack by the Assad regime?

AUSTIN:  That's correct, sir.

KAINE:  Now, I -- I tactically completely agree with that, but I've got to ask, what is the legal predicate for the United States undertaking military action against forces of the Assad regime?

WORMUTH:  Senator, our -- our determination is that, as you know very well, we can defend against ISIL and al-Nusra under the 2001 AUMF and if our forces are attacked by the regime in a particular circumstances [sic] we could -- the president could exercise his Article 2 rights under the Constitution.

KAINE: If our forces -- if -- if the U.S. is attacked, Article 2...

WORMUTH: I'm sorry -- I meant our forces meaning the T&E [Train & Equip] forces that we’ve trained.   

KAINE: I will just say, I have not seen an interpretation of Article 2 ever that would allow the United States to undertake action under Article 2 to protect others' fighters.  I just -- you can take under Article 2 to protect the U.S. The president doesn't need to ask anybody's permission for that.  But to undertake action to protect others' fighters, I've never seen an interpretation of Article 2 that would do this.

Perhaps the scenario Kaine worries about, and that the military plans for, and that the lawyers have apparently signed off on, will never arise—especially since there are so few T&E forces in the field.  But one can imagine it arising, especially since many in the pool of potential T&E trainees “see the [Syrian] government as their main enemy.”

So what might the legal theory be? 

A perhaps-narrow justification would be grounded in the congressional authorization for the T&E program.  The administration might have concluded that Congress implicitly made the T&E forces a co-belligerent, and might have found some precedents, perhaps from World War II, where the President ordered the military defense of an allied force from attack by a nation or fighting force against whom the United States was otherwise not at war.  I doubt this is the theory, however, since the administration keeps talking about Article II.    

As for Article II, one possibility is that the administration is somehow extending an Article II self-defense force-protection rationale to the T&E forces.  Note, however, that Wormuth did not say that the President was acting under Article II in self-defense.  She simply said he was acting under Article II.  This might suggest that administration lawyers are relying on some of the other stretches they made to non-self-defense Article II War powers in the last few years.  I argued that the administration’s pure humanitarian interventions in Iraq last summer were a big step in the expansion of Article II unilateralism—indeed, I concluded that such an intervention would destroy “one of the last threads of limitation within the Executive precedents” for congressionally unauthorized air strikes.  Based on the Iraq precedent (and the legal work that supported it), the administration may have concluded that the “national interest” in preserving regional peace, combined with Syria’s human rights and humanitarian abuses, combined with whatever interest was created by the T&E authorization, established enough of a basis under OLC precedents to use Article II air power in Syria.  Also, recall that President Obama proclaimed in 2013 that he had the authority under Article II to use force in Syria without congressional approval (or UN or NATO approval) under a humanitarian intervention rationale.  The President aborted his stated decision to use air strikes in Syria.  But dusting off whatever legal analysis supported the decision and extending it to the T&E forces—which the U.S. arguably has a heightened interest in protecting (because of the congressional program and the connection, perhaps, to ISIS and Iraq)—would not be too tough. 

I am not arguing that these theories are right.  I am simply saying that the Executive branch rationales on the use of force under Article II have become so expansive in recent years that it would not be hard – in fact, it would be quite easy – for administration lawyers to extend them to this new context.  And that appears to be what happened in early August with respect to the T&E forces.

Some will say that this doesn’t matter unless and until the administration actually uses force against Assad.  I don’t think that is right, since the announcement of a legal theory represents internal legal work that can be used in the future in different contexts.  But does anyone in Congress other than Senator Kaine care about this slow, marginal, but relentless expansion of the president’s unilateral Article II war powers?  Very few others, it seems.