"Mankind must put an end to war before war puts an end to mankind" - President John F. Kennedy
By recklessly following up on his unconstitutional decision to commit an act of war (Syrian missile strike) with a reckless exercise in nuclear brinksmanship (North Korea), President Donald J. Trump has brought us to the edge of a precipice.
Unless Congress, currently on an 18-day holiday recess, immediately acts to Censure him for his dangerous usurpations of its exclusive Constitutional power to decide whether we are at war or at peace, our nation, indeed the world, could be plunged into a nuclear abyss...
Our nation's Founding Fathers could not have been more clear when they explained why the United States Constitution placed the awesome power to take this nation to war exclusively in the deliberative hands of our legislative branch of government:
"Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided." - Thomas Jefferson, 1805
Significantly, the framers of the U.S. Constitution arrived at their conclusion that Congress should have the exclusive power to declare war at a time when this nation was led by such intellectual giants as Jefferson, George Washington and John Adams. It was a determination made centuries before a reckless decision to initiate a war could carry with it the prospect of the nuclear annihilation of all life on this planet.
Today our nation is led by a raging narcissist, whom the Los Angeles Times, aptly described as an intellectually challenged and mentally unbalanced "demagogue," who has displayed a "shocking lack of respect" for the "fundamental rules and institutions" upon which our constitutional democracy is founded; a man who displays an "utter lack of regard for truth."
Constitutional authority is not 'use it or lose it'
No doubt many of the proponents of unchecked executive power would argue that it would be unfair to single-out Trump for Censure. After all, there have been multiple occasions, starting with President Harry Truman's introduction of U.S. troops into South Korea in 1950 to carry out what he euphemistically referred to as a "Police Action," in which past Presidents have circumvented Congress's exclusive power to decide if and when this nation should go to war. Yet, none of those Presidents were Censured.
There are three fundamental reasons why that reasoning should be rejected as unsound.
First, on prior occasions, Presidents ostensibly relied on treaty obligations as a source of Congressional authorization --- The United Nations, for example, for our incursion in Korea in the 1950's or NATO for our military response in Kosovo in the 1990's. Trump, according to Harvard Law Professor Jack Goldsmith, the former head of the Office of Legal Counsel of the Department of Justice during the George W. Bush administration, went well beyond those earlier precedents. If Congress acquiesced to Trump's impetuous unilateral act of war against a sovereign nation (Syria), it would mean, according to Goldsmith, that there would be "no limit on the President's ability to use significant military force unilaterally."
Last week's Syria missile strike did not fall within the ambit of a legal response to Syria's alleged violation of the Chemical Weapons Convention. The U.N. Charter mandates that Trump first obtain authorization from the United Nations Security Council before resorting to military force. And, unlike the ongoing "war on terror," a missile strike on Syria's airfield clearly exceeded the scope of the 2001 Authorization to Use Military Force (AUMF), which was limited to Afghanistan and terrorists organizations.
Second, Trump's usurpation of Congress's broad and exclusive power must be placed within the context of what Yale Law Professor Bruce Ackerman described as an across-the-board authoritarian "assault on the separation of powers" that in the realm of foreign policy has previously been reflected by Trump's unprecedented refusal to disclose the levels of troop deployments in Iraq and Syria.
Third, and most importantly, there is simply no validity in the suggestion that past Congressional acquiescence to executive usurpations serves to erase the ability and right of Congress to forcefully assert its exclusive power over matters of war and peace --- especially at a time when the reckless whims of a mentally unstable demagogue (Trump) portend to nuclear catastrophe.
War Powers Act
On November 7, 1973, after securing the necessary 2/3 majority in both chambers of Congress to override President Richard Nixon's veto, Congress enacted the War Powers Act ( 50 U.S. Code §§1541-1548).
In Section 1541(c) Congress expressly delineates the limits of executive power:
These limitations are by no means diminished by the Act's reporting requirements, which, pursuant to 50 U.S. Code §1543, are applicable only "in the absence of a declaration of war." In other words, where U.S. Armed Forces are introduced into hostilities either pursuant to a "specific authorization" or pursuant to "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces," the Act imposes upon the President the additional duty to submit the Speaker of the House and President pro tempore of the Senate, a written report that sets forth "(A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement."
Trump's twin violations of the War Powers Act
Rep. Adam Schiff (D-CA) did not learn of the strike in Syria until being informed by the Director of National Intelligence after the missiles had been launched. That's quite significant. As the Ranking Member of the House Intelligence Committee, Schiff is a part of the so-called Gang of Eight (the Republican and Democratic leaders in both chambers, as well as the chair and ranking member of each chamber's Intelligence Committees), which is entitled to be kept fully and currently informed of all U.S. intelligence activities.
Thus, although Trump saw fit to reportedly provide advance notice of the missile strike to Russia --- a factor that may have contributed to the strike's "ineffective" impact on the Syrian airbase --- it appears that Trump did not so much as inform Congress, let alone seek its advance approval.
Trump own words in his post strike statement reveal that his attack on the Syrian airbase violated the War Powers Act. The only rationale he offered was his belief that Assad had ordered the chemical weapons attack. As previously noted, the UN Charter does not support unilateral military action sans Security Council approval. If Assad has personally ordered a chemical weapons attack on his own people, that fact would warrant a war crimes investigation and prosecution.
That's a big IF.
After examining a four-page report released by the Trump administration to support its claim that Syrian aircraft dropped a munition designed to disperse deadly sarin gas and a satellite image of the bomb crater, MIT Professor Theodore Postel, one of the world's leading rocket scientists and a scientific advisor to the US Chief of Naval Operations, concluded that there was "absolutely no evidence that the crater was created by a munition designed to disperse sarin after it [was] dropped from an aircraft." To the contrary, the "data cited by the White House is more consistent with the possibility that the munition was placed on the ground rather than dropped from a plane." If that were the case, and, according to Postel, "no competent analyst" would say otherwise, it raises a serious question as to whether the Syrian government had anything to do with the attack. The crater was located in an area that had been under al Qaeda control.
Even assuming Assad ordered the chemical weapons attack, that's a far cry from an attack on the U.S., its territories or its armed forces. These are the only War Powers Act justifications that can be cited when a President seeks to engage in an act of war without Congressional authorization.
It is important to note that the War Powers Act also constrains a President's ability to deploy our armed forces "into situations where imminent involvement in hostilities is clearly indicated by the circumstances." Trump's North Korea nuclear brinksmanship violates that aspect of the Act. Contemporaneous with its refusal to take "the option of pre-emptive military strikes on North Korea...off the table," Trump deployed to the waters near North Korea a nuclear-armed Naval strike force --- what Trump boasted to be an "armada" --- that not only includes the aircraft carrier USS Vincent but also "very powerful" submarines. He did so even after North Korea issued this stern warning:
In other words, a nuclear-armed U.S. President, whom many regard as unhinged, has elected to play a dangerous game of nuclear brinksmanship with a nuclear-armed North Korean dictator who is regarded as so mentally unstable that he threatened all-out war simply because Sen. John McCain (R-AZ) called him a "crazy fat kid" during a television interview.
While it is doubtful that North Korea currently possesses the technological capacity to launch a nuclear inter-continental ballistic missile strike on the Continental U.S., it is clear that by placing the nuclear-armed U.S. Navy strike force in waters off the Korean peninsula, Trump has made both the Naval strike force and U.S. military personnel stationed in South Korea potential targets of a North Korean missile strike, nuclear or otherwise.
Although the ability of Congress to Censure a President is not expressly provided for by the Constitution and has only been used once in our nation's history (Andrew Jackson 1834), it is generally recognized as a valid, if not binding, means for expressing the will of Congress. One would hope that, coupled with a threat of future impeachment, a mere debate over a formal Censure Resolution would be enough to persuade our irrational Commander-in-Chief to step away from the precipice.
That may be overly optimistic given the reluctance of a Republican-controlled Congress to hold this President accountable and the repeated failures of the corporate-owned media that have been soundly criticized for "cheerleading" in favor of acts of war. This was exemplified by MSNBC's Brian Williams description of the missile launch against Syria as "beautiful" and by the utterly unnecessary question postulated on Twitter by his network: "Does the U.S. missile strike on an airbase in Syria constitute an act of war?"
How absurd! If Russia launched a missile strike on an American airbase, would any American journalist question whether that strike amounted to an "act of war?" Indeed, while it differed wildly in scope, rationale and lethality, there was little difference conceptually between Trump’s decision to strike a Syrian airbase and former Japanese Prime Minister Hideki Tojo’s decision to bomb Pearl Harbor.
Despite previous inadequacies in both Congressional and media performance, one would hope that the gravity of this situation would have a sobering effect on the heretofore irresponsible; that we can rely upon both Congress and the media to successfully pull this nation back from the brink of catastrophe.
UPDATE 4/18/17: On April 14, Prof. Postol issued a third report in which the former science advisor to the U.S. Chief of Naval Intelligence alleged that Trump "ordered [the] cruise missile strike without any valid intelligence to back it up," and that the NSC, led by National Security Advisor, Lt. General H.R. McMaster, then generated a "fraudulent intelligence report" as part of "a dedicated attempt to manufacture a false claim that the intelligence actually supported the president's decision to attack Syria."
Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing