Yesterday, I argued that President Trump should destroy the Syrian Air Force in retaliation for the illegal and outrageous use of chemical weapons against civilian targets in Eastern Ghouta. Syrian President Bashar al-Assad’s continued use of banned substances is an explicit war crime. Given the fact that his regime had supposedly surrendered all its chemical weapons following the 2013 attack, also in Ghouta, the employment of chemical agents is particularly egregious.
This call to arms raises two questions: is it moral, and is it legal? Without wading into the murky waters of the War Powers Resolution, a conversation all its own, I believe it would be both.
Just War Theory
Morally, a strike on Syria is justified. When it comes to jus ad bellum, the justification for war, no one has laid out the case better than St. Thomas Aquinas, the medieval Italian Dominican friar. In the Summa Theologica, his most influential philosophical work, Aquinas argued that war was not always sinful, and was justified when three conditions were met. First, it must be declared by a competent authority. Second, it must be for a just cause. Third, it must be waged for the right reasons.
Aquinas quoted St. Augustine, who wrote almost a millennium earlier, “A just war is wont to be described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly.” If killing civilians with outlawed weapons isn’t a situation where a state should be punished, I don’t know what is.
But what of competent authority? Aquinas means only the state; in his day, kings acted unilaterally. There was no legislative authority to constrain the king. He was born 10 years after the barons first forced Magna Carta on King John of England, the first European attempt to constrain a monarch’s powers, but one which the pope rejected.
In the United States, however, our system of checks and balances is designed specifically to constrain the power of the executive. The president is the commander-in-chief of the military, but Congress controls both the military’s funding, and the power to declare war. While it is true that it has not done so since 1941, the country has engaged in numerous military actions since then. The various authorizations for the use of military force it has adopted serve as de facto declarations of war.
Congress punted its chance to restrain Trump in Syria
In Syria, Congress has only explicitly authorized support to anti-ISIS forces. The direct employment of U.S. forces against ISIS, which is an outgrowth of al-Qaeda, is covered under the AUMF which Congress passed in the wake of the September 11, 2001 attacks. But there is a small window of legislative reasoning, as well, to which I alluded yesterday.
Legislative history is something on which courts are not keen to rely, but which can provide a window into Congress’s intentions. In his decision in the District of Columbia v. Heller, the late Justice Antonin Scalia acknowledged that this history can be informative, “because the legislators who heard or read those statements presumably voted with that understanding.” And during the floor debate over the National Defense Authorization Act in September, Congress had the opportunity to expressly prohibit the type of action the president is contemplating; it rejected that opportunity.
Two Democratic members of Congress, John Conyers of Michigan and Barbara Lee of California, and one Republican, Walter Jones of North Carolina (who has a reputation as a bit of a contrarian), submitted amendment number 130 to the Fiscal Year 2018 NDAA. It simply stated, “Nothing in this Act shall be construed as authorizing the use of force against Syria.” Given the chance, months after the missile attack on a Syrian airfield in response to another chemical attack, Congress had the affirmative opportunity to prohibit the use of force against the Assad regime. It rejected the proposal.
As for the United Nations, it has also given its tacit approval for the use of force in response to Assad’s actions. On September 27, 2013, the U.N. Security Council unanimously approved Resolution 2118, the Framework for Elimination of Syrian Chemical Weapons. This resolution arranged for the removal and destruction of Assad’s chemical weapons stockpile, which was hailed as a great achievement.
But it appears to authorize the use of force in the case of Syrian recidivism. The resolution declared “in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter.” Chapter VII deals with the U.N.’s authority to declare a breach of the peace and to use military force.
So by using chemical weapons when he had supposedly given them up, Assad has brought Chapter VII down upon himself. The president should act with all due haste to deliver swift justice.
