WEBVTT - Trump Syria Strikes Could Violate UN Laws, Constitution (Audio) 0:00:00.480 --> 0:00:05.480 There could be no dispute that Syria uses banned chemical weapons, 0:00:06.519 --> 0:00:13.400 violated its obligations under the Chemical Weapons Convention, and ignored 0:00:13.480 --> 0:00:19.880 the urging of the UN Security Council. That, of course, 0:00:19.960 --> 0:00:23.040 was Donald Trump explaining his decision to order missile strikes 0:00:23.120 --> 0:00:25.960 on a Syrian airbase and retaliation for the country's use 0:00:26.040 --> 0:00:29.120 of chemical weapons. The strikes have already become a major 0:00:29.200 --> 0:00:32.400 political and foreign policy issue, but they are also sparking 0:00:32.440 --> 0:00:36.760 important legal questions. Did the President violate either international or 0:00:36.920 --> 0:00:39.800 US law? We're gonna ask two experts in the field. 0:00:40.000 --> 0:00:42.159 We have Michael Glennan. He's a professor at the Fletcher 0:00:42.200 --> 0:00:45.839 School of Law and Diplomacy at tuss University. And William Banks. 0:00:45.960 --> 0:00:47.839 He is the director of the National of the Institute 0:00:47.880 --> 0:00:52.640 for National Security and counter Terrorism at Syracuse Syracuse University 0:00:52.720 --> 0:00:56.960 Law School. Welcome to you both, Um, Bill Um and 0:00:57.000 --> 0:00:59.360 Mike you can jump in here too if if you 0:00:59.400 --> 0:01:02.800 want to. But can you explain what your understanding is 0:01:03.120 --> 0:01:07.080 of what basis the President and his administration have articulated 0:01:07.640 --> 0:01:12.240 to say that he was authorized to order these strikes. Well, 0:01:12.280 --> 0:01:15.640 the administration so far has done very little to explain 0:01:15.680 --> 0:01:19.760 the legal basis for the strikes. The statement last night 0:01:20.000 --> 0:01:24.440 talked about the purpose being to deter assade from using 0:01:24.680 --> 0:01:28.200 chemical weapons, and also made mention of the fact that 0:01:28.240 --> 0:01:33.360 the strike it was deemed to be proportionate to uh 0:01:33.480 --> 0:01:37.440 the underlying cause, which was the chemical weapons attack. But 0:01:37.600 --> 0:01:41.880 neither of those offers much of a legal explanation. Well, Mike, 0:01:42.000 --> 0:01:45.920 what what would the president have to show, say, under 0:01:45.959 --> 0:01:52.280 international law to justify a strike like this. Well, under 0:01:52.320 --> 0:01:56.480 the United Nations Charter, use of force or threat of 0:01:56.560 --> 0:02:03.120 force is prohibited absence an armed attack against the state, 0:02:03.480 --> 0:02:07.600 and when a state is the victim of an armed attack, 0:02:07.720 --> 0:02:11.919 it can seek assistance from other states. But there's no 0:02:12.080 --> 0:02:16.400 claim that the United States was acting in this latter 0:02:16.880 --> 0:02:23.200 capacity of collective self defense, coming to aid anybody as 0:02:23.200 --> 0:02:27.600 a third party. The question is whether humanitarian interventions so 0:02:27.680 --> 0:02:31.560 called is permissible under international law, and the answer under 0:02:31.600 --> 0:02:35.840 the Charter, of course, is no. There there are two possibilities. 0:02:36.120 --> 0:02:39.800 One is the Security Council authorizes the use of force, 0:02:39.840 --> 0:02:44.120 and the other is that you're acting self under under 0:02:44.560 --> 0:02:47.880 Article fifty one in response to an armed attack for 0:02:47.960 --> 0:02:51.600 purposes of self defense. And neither one of those rational 0:02:51.760 --> 0:02:55.560 supplies here, Bill, what do you think about about that 0:02:55.600 --> 0:02:58.240 interpretation of the U N Charter. I think I think 0:02:58.280 --> 0:03:01.959 some people like Harold co have a little broader interpretation 0:03:02.040 --> 0:03:05.800 of what countries are allowed to do. What what do 0:03:05.880 --> 0:03:09.880 you think, Well, I think Mike's absolutely correct about the Charter. 0:03:10.160 --> 0:03:14.920 Harold and some others do advance the idea that humanitarian 0:03:15.000 --> 0:03:19.360 intervention might sometimes be permitted. I think Harold takes a 0:03:19.400 --> 0:03:24.600 pretty nuanced view and would allow a humanitarian operation only 0:03:24.680 --> 0:03:31.320 under certain, very carefully circumscribed limits. And you know, there 0:03:31.360 --> 0:03:37.480 have been some cases Kosovo in uh Syria in two 0:03:37.520 --> 0:03:41.400 thousand and eleven where you might argue that one of 0:03:41.400 --> 0:03:44.480 the rationales for acting on behalf of the United States 0:03:44.560 --> 0:03:49.720 was humanitarian intervention. But in in Libya in two thousand eleven, 0:03:49.800 --> 0:03:53.360 the UN Security Council had acted just as Mike suggested 0:03:53.440 --> 0:03:56.880 they would have to to enable an action like this. 0:03:57.520 --> 0:04:00.680 And in Kosovo, I think most of servers at the 0:04:00.680 --> 0:04:03.880 time concluded that the United States had done the right thing, 0:04:03.960 --> 0:04:06.880 but had acted in violation of international law. That may 0:04:06.880 --> 0:04:11.440 be what happened here. Well, Mike, you know, if the so, 0:04:11.600 --> 0:04:13.840 it sounds as though the president perhaps should have gone 0:04:13.880 --> 0:04:16.440 to the at least under the Convention should have gone 0:04:16.440 --> 0:04:18.839 to the u N and ask the security counts to 0:04:18.839 --> 0:04:22.200 authorize this um. But in a situation like this is 0:04:22.279 --> 0:04:25.080 not really practical if you've got a you've got a 0:04:25.120 --> 0:04:27.680 situation where there's nobody really on the ground who can 0:04:27.680 --> 0:04:29.240 ask for help. In a lot of ways, everybody's fighting. 0:04:29.520 --> 0:04:33.120 The US is really allied with anybody in Syria right now, 0:04:33.560 --> 0:04:36.960 and um, the you know, but somebody's got to stop 0:04:37.320 --> 0:04:40.360 aside from using chemical weapons. So is it really practical 0:04:40.400 --> 0:04:43.080 to say you should go through that sort of international um, 0:04:43.279 --> 0:04:47.599 that sort of international procedure. Well, it's practical in the 0:04:47.640 --> 0:04:52.320 sense that, of course there's no emergency. Uh, if the 0:04:52.400 --> 0:04:55.880 objective is to deter the use of chemical weapons and 0:04:55.960 --> 0:05:00.840 to punish Assad, that could be done a week from now, 0:05:00.920 --> 0:05:05.600 and the Security Council could conceivably authorize it within a week. 0:05:05.680 --> 0:05:09.599 So the problem is not practicality. The problem is political. 0:05:09.680 --> 0:05:14.600 There's a Russian veto that inevitably would be confronted, So 0:05:14.640 --> 0:05:17.520 you'd be in a situation, as Bill pointed out, rather 0:05:17.640 --> 0:05:24.719 like Kosovo where you're confronting massive human rights violations. That's 0:05:24.720 --> 0:05:30.720 that's not really I think disputable at this point. But uh, 0:05:30.960 --> 0:05:35.120 the paralysis of the Security Council, and that the unfortunate 0:05:35.160 --> 0:05:40.240 reality is that, uh, the international legal regime as it 0:05:40.320 --> 0:05:45.719 exists today doesn't adequately deal with these humanitarian crises. Bill, 0:05:45.760 --> 0:05:47.440 what do we do about that? We only have about 0:05:47.440 --> 0:05:50.479 a minute left now. But but I mean, if Mike 0:05:50.600 --> 0:05:54.120 is right, um, that that there is this political paralysis, 0:05:54.160 --> 0:05:57.039 and you know, it's certainly highly likely that Russians would 0:05:57.080 --> 0:06:01.200 have vetoed any Security Council resolution. You know, is there 0:06:01.279 --> 0:06:03.760 just no way around that in terms of practicalities and 0:06:03.839 --> 0:06:07.160 international law. Well, I think Mike is correct. But there's 0:06:07.200 --> 0:06:09.040 some things that we could have done and that we 0:06:09.080 --> 0:06:12.520 could still do or should have done and still could do. 0:06:13.160 --> 0:06:16.400 One is to get the support of some allies. There 0:06:16.560 --> 0:06:19.839 was no no announcement of support from our friends and 0:06:19.880 --> 0:06:24.120 allies before the fact or aft of the fact last night. Uh. 0:06:24.120 --> 0:06:25.920 And the second thing is that he could have gone 0:06:25.920 --> 0:06:29.800 to Congress to add some legitimacy to this, As Mike said, 0:06:29.839 --> 0:06:32.280 in a week's time or less, the Security Council could 0:06:32.279 --> 0:06:34.679 have met. I daresay Congress could have done the same. 0:06:35.200 --> 0:06:38.279 And judging from the reactions this morning and last night, 0:06:38.839 --> 0:06:42.080 the Republican Congress would have supported an authorization for the 0:06:42.120 --> 0:06:46.080 president to undertake these actions. We're talking about the legal 0:06:46.120 --> 0:06:48.520 basis for, or perhaps lack of legal basis for the 0:06:48.560 --> 0:06:51.520 missile strikes on Syria last night. Our guests are Michael 0:06:51.560 --> 0:06:54.960 Glennon of the Fletcher School at Tussa University and William 0:06:55.000 --> 0:07:00.320 Banks of Syracuse University Law School. Um, Mike, the I 0:07:00.360 --> 0:07:03.960 have some talking points from the White House here. Uh. 0:07:04.040 --> 0:07:06.120 One of the things in terms of their legal basis, 0:07:06.160 --> 0:07:10.160 and one of the things they point to is opinion 0:07:10.320 --> 0:07:13.480 issued by Barack Obama's Justice Department the Office of Legal 0:07:13.520 --> 0:07:20.000 Council as a basis for the intervention in Libya. In 0:07:20.040 --> 0:07:23.840 your mind, does that does that documents help the Trump 0:07:23.840 --> 0:07:27.120 administration out at all? Here? It may, But I think 0:07:27.200 --> 0:07:30.640 the most important pronouncement to come from Barack Obama was 0:07:30.680 --> 0:07:34.800 the statement that he made just before he was elected president. 0:07:34.840 --> 0:07:37.840 As a candidate for office. He gave the best one 0:07:38.000 --> 0:07:42.200 sentence summary of the president's independent power I think that 0:07:42.280 --> 0:07:45.160 anybody has given. Here's what he said. The President does 0:07:45.200 --> 0:07:49.560 not have power under the Constitution to unilaterally authorize a 0:07:49.600 --> 0:07:53.560 military attack in a situation that does not involve an 0:07:53.600 --> 0:07:57.560 actual or imminent threat to the nation. There is no 0:07:57.920 --> 0:08:02.120 actual or imminent threat of the United States posed by 0:08:02.400 --> 0:08:06.560 Syria today. There was not three days ago before we 0:08:07.280 --> 0:08:12.440 launched this attack. The question that he that he pointed 0:08:12.480 --> 0:08:15.360 to is whether there's an emergency. And this is the 0:08:15.400 --> 0:08:20.800 issue that Bill touched upon just just before the break. Clearly, 0:08:21.720 --> 0:08:24.680 if the President wanted to, he could go to the Congress. 0:08:24.760 --> 0:08:29.360 There's there's no set of exigent circumstances that required that 0:08:29.440 --> 0:08:34.320 this strike be launched when it was uh, There's there's 0:08:34.360 --> 0:08:38.040 plenty of time to hold hearings and hear experts, views 0:08:38.160 --> 0:08:40.640 pro and con It may be a good idea, it 0:08:40.760 --> 0:08:44.040 may not. But the bottom line is, if the President 0:08:44.120 --> 0:08:47.800 is going to expose the United States to the risk 0:08:47.920 --> 0:08:51.280 of involvement in a large war or the risk of 0:08:51.320 --> 0:08:56.600 a retaliation against American forces or civilians, unless there's a 0:08:56.679 --> 0:08:59.400 unless there's an emergency, he's got to go and get 0:08:59.440 --> 0:09:03.920 congressional approval first. Well, Bill that the President and some 0:09:03.960 --> 0:09:06.720 of the Republican supporters of of the president's actions here 0:09:06.720 --> 0:09:09.320 are appointing to Article two of the Constitution as power 0:09:09.320 --> 0:09:12.400 as commander in Chief and also the and also the 0:09:12.880 --> 0:09:14.760 War Powers Act, that he's going to go to Congress 0:09:14.840 --> 0:09:19.200 afterwards to to get authorization for further action. Is that 0:09:19.960 --> 0:09:22.200 what is the legal framework here for what the president 0:09:22.240 --> 0:09:26.040 is supposed to do in terms of involving Congress. Well, 0:09:26.080 --> 0:09:29.080 the President used military force on behalf of the United 0:09:29.160 --> 0:09:33.240 States and needed so unilaterally without either seeking the authorization 0:09:33.400 --> 0:09:37.960 of or the at least the consultation of Congress. As 0:09:38.000 --> 0:09:41.120 we know from our you know, Civics education as children, 0:09:41.240 --> 0:09:45.599 the use of force by the United States follows process 0:09:45.640 --> 0:09:49.319 that's very clearly stated in the Constitution. The Congress authorizes, 0:09:49.360 --> 0:09:52.200 and then the president carries out the will of Congress. 0:09:52.240 --> 0:09:55.000 That didn't happen in this case, and as we noted 0:09:55.080 --> 0:09:57.600 before the break, he certainly could go to Congress for 0:09:57.679 --> 0:10:01.200 that authority. It's it's important of the listeners to understand 0:10:01.240 --> 0:10:04.280 the difference between this military operation and the ones that 0:10:04.840 --> 0:10:08.760 President Trump, like the president before him, President Obama, taken 0:10:08.800 --> 0:10:14.320 with respect to EISL in Syria. Those operations, whatever one 0:10:14.400 --> 0:10:17.920 thinks of them, were authorized by an authorization for the 0:10:18.000 --> 0:10:21.000 use of military force enacted by Congress a few days 0:10:21.040 --> 0:10:23.840 after nine eleven. It's a bit of a stretch in 0:10:24.000 --> 0:10:27.480 many of us our views to apply that to EISEL, 0:10:27.559 --> 0:10:33.360 but there was at least authority on paper for military operations. 0:10:33.360 --> 0:10:37.000 This one here was out of whole cloth. Mike. It's 0:10:37.400 --> 0:10:39.480 I hear you and Bill both sort of making an 0:10:39.600 --> 0:10:44.520 argument about, you know, the constitutional powers of the respective branches, 0:10:44.960 --> 0:10:48.800 but haven't as a matter of practice, haven't we sort 0:10:48.840 --> 0:10:51.440 of ceded to the president and I we I mean 0:10:51.880 --> 0:10:55.400 in part Congress in the courts. Uh, you know, an 0:10:55.440 --> 0:10:58.719 awful lot of power to act very quickly and then 0:10:58.720 --> 0:11:02.360 maybe go back to Congress and and retroactively get authorization 0:11:02.480 --> 0:11:05.080 for for for what they just did. Now, I don't 0:11:05.120 --> 0:11:07.520 think so. First of all, when you look at those incidents, 0:11:07.520 --> 0:11:10.679 you find that almost all of them in flights with pirates, 0:11:10.920 --> 0:11:16.560 clashes with cattle, rustler's, trivial naval engagements, very minor uses 0:11:16.600 --> 0:11:20.920 of force that didn't risk involving the United States in 0:11:21.000 --> 0:11:25.360 the large scale war. That's really the issue here, Um, 0:11:25.400 --> 0:11:29.840 what is the risk that is incurred on behalf of 0:11:29.840 --> 0:11:33.120 the nation as a whole. And that's what distinguishes all 0:11:33.200 --> 0:11:37.000 these other incidents. There are just a small handful of 0:11:37.080 --> 0:11:40.760 incidents like this that create this level of risk. And 0:11:40.880 --> 0:11:44.880 let's be clear that risk is substantial. There American troops 0:11:44.920 --> 0:11:48.600 on the ground in Syria, in Iraq at the in 0:11:48.679 --> 0:11:53.319 syric of air base in Turkey right across the border. Uh. 0:11:53.559 --> 0:11:56.560 This is uh, this is a risky action, and it's 0:11:56.559 --> 0:11:59.400 a kind of risk that ought to be decided upon 0:11:59.559 --> 0:12:03.760 by the elected representatives to the people. I want to 0:12:03.800 --> 0:12:06.319 thank our guests. That was Michael Glennon talking. He is 0:12:06.360 --> 0:12:09.680 a professor at the Fletcher School at tuss University and 0:12:09.720 --> 0:12:12.280 William Banks he is director of the Institute for National 0:12:12.320 --> 0:12:16.320 Security and counter Terrorism at Syracuse Law School. We've been 0:12:16.360 --> 0:12:20.160 talking about the missile strike ordered by Donald Trump against 0:12:21.120 --> 0:12:25.719 against Syria and discussing whether there was legal authorization for that, 0:12:25.960 --> 0:12:28.520 and UH, there are certainly some questions that I have 0:12:28.600 --> 0:12:32.280 a feeling we are going to revisit in the coming weeks.