Early Sunday evening, a US Navy F/A-18 Super Hornet shot down a Syrian Air Force Su-22 that had just completed a bombing run targeting US-backed Syrian Democratic Forces (SDF) in the Raqqa region. The episode raises important questions under the U.N. Charter (see Adil Ahmad Haque’s analysis here). But what about U.S. domestic law?
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Senator Tim Kaine (D-VA) and Representative Adam Schiff (D-CA) have sent a letter to President Trump requesting information on the administration's domestic legal justification for the recent airstrikes in Syria, "in particular an explanation of whether this action expands ... precedents for action under Article II." The letter is available here and below.
The government has just filed its brief responding to Captain Smith’s challenge to the president’s unilateral war against ISIS.
The Obama Administration’s Views on the Legality of Intervention in Syria Without Congressional or U.N. Security Council Support
The Obama administration's lawyers concluded that intervention in Syria aganist Assad would be lawful under domestic and international law. But whether they were right may matter less than that Clinton is leading the presidential polls and that her former State Department lawyer has robust views about the president’s power of unilateral humanitarian intervention.
Prompted by the “dissent memo” signed by 51 career State Department diplomats, several prominent law professors are debating the Obama administration's internal deliberations about the legality of intervention in Syria against Assad. But I don’t think the debate has perfectly reflected what my reporting showed.
Two important things are conspicuously missing from the “dissent channel” cable on Syria are any discussion of whether proposed steps would be effective, rather than deeply counterproductive, or whether the recommended use of force against Syria would be legal.
Despite the Administrations insistence that US troops are not engaged in a combat mission against ISIL, recent deaths of US service members in Iraq and Syria illustrate the incongruence of the stated policy, legal underpinnings, and facts on the ground.
These kinds of advocacy lawsuits against the President in the national security arena often have perverse effects on the resulting law. The intent is generally to force constraints onto the executive branch, but the further along this lawsuit gets, the greater the risk it will result in less, rather than more, accountability and constraint on the Executive’s power.
Last week at The Brookings Institution, United States Supreme Court Justice Stephen Breyer participated in a discussion with Benjamin Wittes and Slate’s Dahlia Lithwick about his new book, "The Court and the World: American Law and the New Global Realities."