1 00:00:00,480 --> 00:00:05,480 Speaker 1: There could be no dispute that Syria uses banned chemical weapons, 2 00:00:06,519 --> 00:00:13,400 Speaker 1: violated its obligations under the Chemical Weapons Convention, and ignored 3 00:00:13,480 --> 00:00:19,880 Speaker 1: the urging of the UN Security Council. That, of course, 4 00:00:19,960 --> 00:00:23,040 Speaker 1: was Donald Trump explaining his decision to order missile strikes 5 00:00:23,120 --> 00:00:25,960 Speaker 1: on a Syrian airbase and retaliation for the country's use 6 00:00:26,040 --> 00:00:29,120 Speaker 1: of chemical weapons. The strikes have already become a major 7 00:00:29,200 --> 00:00:32,400 Speaker 1: political and foreign policy issue, but they are also sparking 8 00:00:32,440 --> 00:00:36,760 Speaker 1: important legal questions. Did the President violate either international or 9 00:00:36,920 --> 00:00:39,800 Speaker 1: US law? We're gonna ask two experts in the field. 10 00:00:40,000 --> 00:00:42,159 Speaker 1: We have Michael Glennan. He's a professor at the Fletcher 11 00:00:42,200 --> 00:00:45,839 Speaker 1: School of Law and Diplomacy at tuss University. And William Banks. 12 00:00:45,960 --> 00:00:47,839 Speaker 1: He is the director of the National of the Institute 13 00:00:47,880 --> 00:00:52,640 Speaker 1: for National Security and counter Terrorism at Syracuse Syracuse University 14 00:00:52,720 --> 00:00:56,960 Speaker 1: Law School. Welcome to you both, Um, Bill Um and 15 00:00:57,000 --> 00:00:59,360 Speaker 1: Mike you can jump in here too if if you 16 00:00:59,400 --> 00:01:02,800 Speaker 1: want to. But can you explain what your understanding is 17 00:01:03,120 --> 00:01:07,080 Speaker 1: of what basis the President and his administration have articulated 18 00:01:07,640 --> 00:01:12,240 Speaker 1: to say that he was authorized to order these strikes. Well, 19 00:01:12,280 --> 00:01:15,640 Speaker 1: the administration so far has done very little to explain 20 00:01:15,680 --> 00:01:19,760 Speaker 1: the legal basis for the strikes. The statement last night 21 00:01:20,000 --> 00:01:24,440 Speaker 1: talked about the purpose being to deter assade from using 22 00:01:24,680 --> 00:01:28,200 Speaker 1: chemical weapons, and also made mention of the fact that 23 00:01:28,240 --> 00:01:33,360 Speaker 1: the strike it was deemed to be proportionate to uh 24 00:01:33,480 --> 00:01:37,440 Speaker 1: the underlying cause, which was the chemical weapons attack. But 25 00:01:37,600 --> 00:01:41,880 Speaker 1: neither of those offers much of a legal explanation. Well, Mike, 26 00:01:42,000 --> 00:01:45,920 Speaker 1: what what would the president have to show, say, under 27 00:01:45,959 --> 00:01:52,280 Speaker 1: international law to justify a strike like this. Well, under 28 00:01:52,320 --> 00:01:56,480 Speaker 1: the United Nations Charter, use of force or threat of 29 00:01:56,560 --> 00:02:03,120 Speaker 1: force is prohibited absence an armed attack against the state, 30 00:02:03,480 --> 00:02:07,600 Speaker 1: and when a state is the victim of an armed attack, 31 00:02:07,720 --> 00:02:11,919 Speaker 1: it can seek assistance from other states. But there's no 32 00:02:12,080 --> 00:02:16,400 Speaker 1: claim that the United States was acting in this latter 33 00:02:16,880 --> 00:02:23,200 Speaker 1: capacity of collective self defense, coming to aid anybody as 34 00:02:23,200 --> 00:02:27,600 Speaker 1: a third party. The question is whether humanitarian interventions so 35 00:02:27,680 --> 00:02:31,560 Speaker 1: called is permissible under international law, and the answer under 36 00:02:31,600 --> 00:02:35,840 Speaker 1: the Charter, of course, is no. There there are two possibilities. 37 00:02:36,120 --> 00:02:39,800 Speaker 1: One is the Security Council authorizes the use of force, 38 00:02:39,840 --> 00:02:44,120 Speaker 1: and the other is that you're acting self under under 39 00:02:44,560 --> 00:02:47,880 Speaker 1: Article fifty one in response to an armed attack for 40 00:02:47,960 --> 00:02:51,600 Speaker 1: purposes of self defense. And neither one of those rational 41 00:02:51,760 --> 00:02:55,560 Speaker 1: supplies here, Bill, what do you think about about that 42 00:02:55,600 --> 00:02:58,240 Speaker 1: interpretation of the U N Charter. I think I think 43 00:02:58,280 --> 00:03:01,959 Speaker 1: some people like Harold co have a little broader interpretation 44 00:03:02,040 --> 00:03:05,800 Speaker 1: of what countries are allowed to do. What what do 45 00:03:05,880 --> 00:03:09,880 Speaker 1: you think, Well, I think Mike's absolutely correct about the Charter. 46 00:03:10,160 --> 00:03:14,920 Speaker 1: Harold and some others do advance the idea that humanitarian 47 00:03:15,000 --> 00:03:19,360 Speaker 1: intervention might sometimes be permitted. I think Harold takes a 48 00:03:19,400 --> 00:03:24,600 Speaker 1: pretty nuanced view and would allow a humanitarian operation only 49 00:03:24,680 --> 00:03:31,320 Speaker 1: under certain, very carefully circumscribed limits. And you know, there 50 00:03:31,360 --> 00:03:37,480 Speaker 1: have been some cases Kosovo in uh Syria in two 51 00:03:37,520 --> 00:03:41,400 Speaker 1: thousand and eleven where you might argue that one of 52 00:03:41,400 --> 00:03:44,480 Speaker 1: the rationales for acting on behalf of the United States 53 00:03:44,560 --> 00:03:49,720 Speaker 1: was humanitarian intervention. But in in Libya in two thousand eleven, 54 00:03:49,800 --> 00:03:53,360 Speaker 1: the UN Security Council had acted just as Mike suggested 55 00:03:53,440 --> 00:03:56,880 Speaker 1: they would have to to enable an action like this. 56 00:03:57,520 --> 00:04:00,680 Speaker 1: And in Kosovo, I think most of servers at the 57 00:04:00,680 --> 00:04:03,880 Speaker 1: time concluded that the United States had done the right thing, 58 00:04:03,960 --> 00:04:06,880 Speaker 1: but had acted in violation of international law. That may 59 00:04:06,880 --> 00:04:11,440 Speaker 1: be what happened here. Well, Mike, you know, if the so, 60 00:04:11,600 --> 00:04:13,840 Speaker 1: it sounds as though the president perhaps should have gone 61 00:04:13,880 --> 00:04:16,440 Speaker 1: to the at least under the Convention should have gone 62 00:04:16,440 --> 00:04:18,839 Speaker 1: to the u N and ask the security counts to 63 00:04:18,839 --> 00:04:22,200 Speaker 1: authorize this um. But in a situation like this is 64 00:04:22,279 --> 00:04:25,080 Speaker 1: not really practical if you've got a you've got a 65 00:04:25,120 --> 00:04:27,680 Speaker 1: situation where there's nobody really on the ground who can 66 00:04:27,680 --> 00:04:29,240 Speaker 1: ask for help. In a lot of ways, everybody's fighting. 67 00:04:29,520 --> 00:04:33,120 Speaker 1: The US is really allied with anybody in Syria right now, 68 00:04:33,560 --> 00:04:36,960 Speaker 1: and um, the you know, but somebody's got to stop 69 00:04:37,320 --> 00:04:40,360 Speaker 1: aside from using chemical weapons. So is it really practical 70 00:04:40,400 --> 00:04:43,080 Speaker 1: to say you should go through that sort of international um, 71 00:04:43,279 --> 00:04:47,599 Speaker 1: that sort of international procedure. Well, it's practical in the 72 00:04:47,640 --> 00:04:52,320 Speaker 1: sense that, of course there's no emergency. Uh, if the 73 00:04:52,400 --> 00:04:55,880 Speaker 1: objective is to deter the use of chemical weapons and 74 00:04:55,960 --> 00:05:00,840 Speaker 1: to punish Assad, that could be done a week from now, 75 00:05:00,920 --> 00:05:05,600 Speaker 1: and the Security Council could conceivably authorize it within a week. 76 00:05:05,680 --> 00:05:09,599 Speaker 1: So the problem is not practicality. The problem is political. 77 00:05:09,680 --> 00:05:14,600 Speaker 1: There's a Russian veto that inevitably would be confronted, So 78 00:05:14,640 --> 00:05:17,520 Speaker 1: you'd be in a situation, as Bill pointed out, rather 79 00:05:17,640 --> 00:05:24,719 Speaker 1: like Kosovo where you're confronting massive human rights violations. That's 80 00:05:24,720 --> 00:05:30,720 Speaker 1: that's not really I think disputable at this point. But uh, 81 00:05:30,960 --> 00:05:35,120 Speaker 1: the paralysis of the Security Council, and that the unfortunate 82 00:05:35,160 --> 00:05:40,240 Speaker 1: reality is that, uh, the international legal regime as it 83 00:05:40,320 --> 00:05:45,719 Speaker 1: exists today doesn't adequately deal with these humanitarian crises. Bill, 84 00:05:45,760 --> 00:05:47,440 Speaker 1: what do we do about that? We only have about 85 00:05:47,440 --> 00:05:50,479 Speaker 1: a minute left now. But but I mean, if Mike 86 00:05:50,600 --> 00:05:54,120 Speaker 1: is right, um, that that there is this political paralysis, 87 00:05:54,160 --> 00:05:57,039 Speaker 1: and you know, it's certainly highly likely that Russians would 88 00:05:57,080 --> 00:06:01,200 Speaker 1: have vetoed any Security Council resolution. You know, is there 89 00:06:01,279 --> 00:06:03,760 Speaker 1: just no way around that in terms of practicalities and 90 00:06:03,839 --> 00:06:07,160 Speaker 1: international law. Well, I think Mike is correct. But there's 91 00:06:07,200 --> 00:06:09,040 Speaker 1: some things that we could have done and that we 92 00:06:09,080 --> 00:06:12,520 Speaker 1: could still do or should have done and still could do. 93 00:06:13,160 --> 00:06:16,400 Speaker 1: One is to get the support of some allies. There 94 00:06:16,560 --> 00:06:19,839 Speaker 1: was no no announcement of support from our friends and 95 00:06:19,880 --> 00:06:24,120 Speaker 1: allies before the fact or aft of the fact last night. Uh. 96 00:06:24,120 --> 00:06:25,920 Speaker 1: And the second thing is that he could have gone 97 00:06:25,920 --> 00:06:29,800 Speaker 1: to Congress to add some legitimacy to this, As Mike said, 98 00:06:29,839 --> 00:06:32,280 Speaker 1: in a week's time or less, the Security Council could 99 00:06:32,279 --> 00:06:34,679 Speaker 1: have met. I daresay Congress could have done the same. 100 00:06:35,200 --> 00:06:38,279 Speaker 1: And judging from the reactions this morning and last night, 101 00:06:38,839 --> 00:06:42,080 Speaker 1: the Republican Congress would have supported an authorization for the 102 00:06:42,120 --> 00:06:46,080 Speaker 1: president to undertake these actions. We're talking about the legal 103 00:06:46,120 --> 00:06:48,520 Speaker 1: basis for, or perhaps lack of legal basis for the 104 00:06:48,560 --> 00:06:51,520 Speaker 1: missile strikes on Syria last night. Our guests are Michael 105 00:06:51,560 --> 00:06:54,960 Speaker 1: Glennon of the Fletcher School at Tussa University and William 106 00:06:55,000 --> 00:07:00,320 Speaker 1: Banks of Syracuse University Law School. Um, Mike, the I 107 00:07:00,360 --> 00:07:03,960 Speaker 1: have some talking points from the White House here. Uh. 108 00:07:04,040 --> 00:07:06,120 Speaker 1: One of the things in terms of their legal basis, 109 00:07:06,160 --> 00:07:10,160 Speaker 1: and one of the things they point to is opinion 110 00:07:10,320 --> 00:07:13,480 Speaker 1: issued by Barack Obama's Justice Department the Office of Legal 111 00:07:13,520 --> 00:07:20,000 Speaker 1: Council as a basis for the intervention in Libya. In 112 00:07:20,040 --> 00:07:23,840 Speaker 1: your mind, does that does that documents help the Trump 113 00:07:23,840 --> 00:07:27,120 Speaker 1: administration out at all? Here? It may, But I think 114 00:07:27,200 --> 00:07:30,640 Speaker 1: the most important pronouncement to come from Barack Obama was 115 00:07:30,680 --> 00:07:34,800 Speaker 1: the statement that he made just before he was elected president. 116 00:07:34,840 --> 00:07:37,840 Speaker 1: As a candidate for office. He gave the best one 117 00:07:38,000 --> 00:07:42,200 Speaker 1: sentence summary of the president's independent power I think that 118 00:07:42,280 --> 00:07:45,160 Speaker 1: anybody has given. Here's what he said. The President does 119 00:07:45,200 --> 00:07:49,560 Speaker 1: not have power under the Constitution to unilaterally authorize a 120 00:07:49,600 --> 00:07:53,560 Speaker 1: military attack in a situation that does not involve an 121 00:07:53,600 --> 00:07:57,560 Speaker 1: actual or imminent threat to the nation. There is no 122 00:07:57,920 --> 00:08:02,120 Speaker 1: actual or imminent threat of the United States posed by 123 00:08:02,400 --> 00:08:06,560 Speaker 1: Syria today. There was not three days ago before we 124 00:08:07,280 --> 00:08:12,440 Speaker 1: launched this attack. The question that he that he pointed 125 00:08:12,480 --> 00:08:15,360 Speaker 1: to is whether there's an emergency. And this is the 126 00:08:15,400 --> 00:08:20,800 Speaker 1: issue that Bill touched upon just just before the break. Clearly, 127 00:08:21,720 --> 00:08:24,680 Speaker 1: if the President wanted to, he could go to the Congress. 128 00:08:24,760 --> 00:08:29,360 Speaker 1: There's there's no set of exigent circumstances that required that 129 00:08:29,440 --> 00:08:34,320 Speaker 1: this strike be launched when it was uh, There's there's 130 00:08:34,360 --> 00:08:38,040 Speaker 1: plenty of time to hold hearings and hear experts, views 131 00:08:38,160 --> 00:08:40,640 Speaker 1: pro and con It may be a good idea, it 132 00:08:40,760 --> 00:08:44,040 Speaker 1: may not. But the bottom line is, if the President 133 00:08:44,120 --> 00:08:47,800 Speaker 1: is going to expose the United States to the risk 134 00:08:47,920 --> 00:08:51,280 Speaker 1: of involvement in a large war or the risk of 135 00:08:51,320 --> 00:08:56,600 Speaker 1: a retaliation against American forces or civilians, unless there's a 136 00:08:56,679 --> 00:08:59,400 Speaker 1: unless there's an emergency, he's got to go and get 137 00:08:59,440 --> 00:09:03,920 Speaker 1: congressional approval first. Well, Bill that the President and some 138 00:09:03,960 --> 00:09:06,720 Speaker 1: of the Republican supporters of of the president's actions here 139 00:09:06,720 --> 00:09:09,320 Speaker 1: are appointing to Article two of the Constitution as power 140 00:09:09,320 --> 00:09:12,400 Speaker 1: as commander in Chief and also the and also the 141 00:09:12,880 --> 00:09:14,760 Speaker 1: War Powers Act, that he's going to go to Congress 142 00:09:14,840 --> 00:09:19,200 Speaker 1: afterwards to to get authorization for further action. Is that 143 00:09:19,960 --> 00:09:22,200 Speaker 1: what is the legal framework here for what the president 144 00:09:22,240 --> 00:09:26,040 Speaker 1: is supposed to do in terms of involving Congress. Well, 145 00:09:26,080 --> 00:09:29,080 Speaker 1: the President used military force on behalf of the United 146 00:09:29,160 --> 00:09:33,240 Speaker 1: States and needed so unilaterally without either seeking the authorization 147 00:09:33,400 --> 00:09:37,960 Speaker 1: of or the at least the consultation of Congress. As 148 00:09:38,000 --> 00:09:41,120 Speaker 1: we know from our you know, Civics education as children, 149 00:09:41,240 --> 00:09:45,599 Speaker 1: the use of force by the United States follows process 150 00:09:45,640 --> 00:09:49,319 Speaker 1: that's very clearly stated in the Constitution. The Congress authorizes, 151 00:09:49,360 --> 00:09:52,200 Speaker 1: and then the president carries out the will of Congress. 152 00:09:52,240 --> 00:09:55,000 Speaker 1: That didn't happen in this case, and as we noted 153 00:09:55,080 --> 00:09:57,600 Speaker 1: before the break, he certainly could go to Congress for 154 00:09:57,679 --> 00:10:01,200 Speaker 1: that authority. It's it's important of the listeners to understand 155 00:10:01,240 --> 00:10:04,280 Speaker 1: the difference between this military operation and the ones that 156 00:10:04,840 --> 00:10:08,760 Speaker 1: President Trump, like the president before him, President Obama, taken 157 00:10:08,800 --> 00:10:14,320 Speaker 1: with respect to EISL in Syria. Those operations, whatever one 158 00:10:14,400 --> 00:10:17,920 Speaker 1: thinks of them, were authorized by an authorization for the 159 00:10:18,000 --> 00:10:21,000 Speaker 1: use of military force enacted by Congress a few days 160 00:10:21,040 --> 00:10:23,840 Speaker 1: after nine eleven. It's a bit of a stretch in 161 00:10:24,000 --> 00:10:27,480 Speaker 1: many of us our views to apply that to EISEL, 162 00:10:27,559 --> 00:10:33,360 Speaker 1: but there was at least authority on paper for military operations. 163 00:10:33,360 --> 00:10:37,000 Speaker 1: This one here was out of whole cloth. Mike. It's 164 00:10:37,400 --> 00:10:39,480 Speaker 1: I hear you and Bill both sort of making an 165 00:10:39,600 --> 00:10:44,520 Speaker 1: argument about, you know, the constitutional powers of the respective branches, 166 00:10:44,960 --> 00:10:48,800 Speaker 1: but haven't as a matter of practice, haven't we sort 167 00:10:48,840 --> 00:10:51,440 Speaker 1: of ceded to the president and I we I mean 168 00:10:51,880 --> 00:10:55,400 Speaker 1: in part Congress in the courts. Uh, you know, an 169 00:10:55,440 --> 00:10:58,719 Speaker 1: awful lot of power to act very quickly and then 170 00:10:58,720 --> 00:11:02,360 Speaker 1: maybe go back to Congress and and retroactively get authorization 171 00:11:02,480 --> 00:11:05,080 Speaker 1: for for for what they just did. Now, I don't 172 00:11:05,120 --> 00:11:07,520 Speaker 1: think so. First of all, when you look at those incidents, 173 00:11:07,520 --> 00:11:10,679 Speaker 1: you find that almost all of them in flights with pirates, 174 00:11:10,920 --> 00:11:16,560 Speaker 1: clashes with cattle, rustler's, trivial naval engagements, very minor uses 175 00:11:16,600 --> 00:11:20,920 Speaker 1: of force that didn't risk involving the United States in 176 00:11:21,000 --> 00:11:25,360 Speaker 1: the large scale war. That's really the issue here, Um, 177 00:11:25,400 --> 00:11:29,840 Speaker 1: what is the risk that is incurred on behalf of 178 00:11:29,840 --> 00:11:33,120 Speaker 1: the nation as a whole. And that's what distinguishes all 179 00:11:33,200 --> 00:11:37,000 Speaker 1: these other incidents. There are just a small handful of 180 00:11:37,080 --> 00:11:40,760 Speaker 1: incidents like this that create this level of risk. And 181 00:11:40,880 --> 00:11:44,880 Speaker 1: let's be clear that risk is substantial. There American troops 182 00:11:44,920 --> 00:11:48,600 Speaker 1: on the ground in Syria, in Iraq at the in 183 00:11:48,679 --> 00:11:53,319 Speaker 1: syric of air base in Turkey right across the border. Uh. 184 00:11:53,559 --> 00:11:56,560 Speaker 1: This is uh, this is a risky action, and it's 185 00:11:56,559 --> 00:11:59,400 Speaker 1: a kind of risk that ought to be decided upon 186 00:11:59,559 --> 00:12:03,760 Speaker 1: by the elected representatives to the people. I want to 187 00:12:03,800 --> 00:12:06,319 Speaker 1: thank our guests. That was Michael Glennon talking. He is 188 00:12:06,360 --> 00:12:09,680 Speaker 1: a professor at the Fletcher School at tuss University and 189 00:12:09,720 --> 00:12:12,280 Speaker 1: William Banks he is director of the Institute for National 190 00:12:12,320 --> 00:12:16,320 Speaker 1: Security and counter Terrorism at Syracuse Law School. We've been 191 00:12:16,360 --> 00:12:20,160 Speaker 1: talking about the missile strike ordered by Donald Trump against 192 00:12:21,120 --> 00:12:25,719 Speaker 1: against Syria and discussing whether there was legal authorization for that, 193 00:12:25,960 --> 00:12:28,520 Speaker 1: and UH, there are certainly some questions that I have 194 00:12:28,600 --> 00:12:32,280 Speaker 1: a feeling we are going to revisit in the coming weeks.