Speaker 1: There could be no dispute that Syria uses banned chemical weapons,
Speaker 1: violated its obligations under the Chemical Weapons Convention, and ignored
Speaker 1: the urging of the UN Security Council. That, of course,
Speaker 1: was Donald Trump explaining his decision to order missile strikes
Speaker 1: on a Syrian airbase and retaliation for the country's use
Speaker 1: of chemical weapons. The strikes have already become a major
Speaker 1: political and foreign policy issue, but they are also sparking
Speaker 1: important legal questions. Did the President violate either international or
Speaker 1: US law? We're gonna ask two experts in the field.
Speaker 1: We have Michael Glennan. He's a professor at the Fletcher
Speaker 1: School of Law and Diplomacy at tuss University. And William Banks.
Speaker 1: He is the director of the National of the Institute
Speaker 1: for National Security and counter Terrorism at Syracuse Syracuse University
Speaker 1: Law School. Welcome to you both, Um, Bill Um and
Speaker 1: Mike you can jump in here too if if you
Speaker 1: want to. But can you explain what your understanding is
Speaker 1: of what basis the President and his administration have articulated
Speaker 1: to say that he was authorized to order these strikes. Well,
Speaker 1: the administration so far has done very little to explain
Speaker 1: the legal basis for the strikes. The statement last night
Speaker 1: talked about the purpose being to deter assade from using
Speaker 1: chemical weapons, and also made mention of the fact that
Speaker 1: the strike it was deemed to be proportionate to uh
Speaker 1: the underlying cause, which was the chemical weapons attack. But
Speaker 1: neither of those offers much of a legal explanation. Well, Mike,
Speaker 1: what what would the president have to show, say, under
Speaker 1: international law to justify a strike like this. Well, under
Speaker 1: the United Nations Charter, use of force or threat of
Speaker 1: force is prohibited absence an armed attack against the state,
Speaker 1: and when a state is the victim of an armed attack,
Speaker 1: it can seek assistance from other states. But there's no
Speaker 1: claim that the United States was acting in this latter
Speaker 1: capacity of collective self defense, coming to aid anybody as
Speaker 1: a third party. The question is whether humanitarian interventions so
Speaker 1: called is permissible under international law, and the answer under
Speaker 1: the Charter, of course, is no. There there are two possibilities.
Speaker 1: One is the Security Council authorizes the use of force,
Speaker 1: and the other is that you're acting self under under
Speaker 1: Article fifty one in response to an armed attack for
Speaker 1: purposes of self defense. And neither one of those rational
Speaker 1: supplies here, Bill, what do you think about about that
Speaker 1: interpretation of the U N Charter. I think I think
Speaker 1: some people like Harold co have a little broader interpretation
Speaker 1: of what countries are allowed to do. What what do
Speaker 1: you think, Well, I think Mike's absolutely correct about the Charter.
Speaker 1: Harold and some others do advance the idea that humanitarian
Speaker 1: intervention might sometimes be permitted. I think Harold takes a
Speaker 1: pretty nuanced view and would allow a humanitarian operation only
Speaker 1: under certain, very carefully circumscribed limits. And you know, there
Speaker 1: have been some cases Kosovo in uh Syria in two
Speaker 1: thousand and eleven where you might argue that one of
Speaker 1: the rationales for acting on behalf of the United States
Speaker 1: was humanitarian intervention. But in in Libya in two thousand eleven,
Speaker 1: the UN Security Council had acted just as Mike suggested
Speaker 1: they would have to to enable an action like this.
Speaker 1: And in Kosovo, I think most of servers at the
Speaker 1: time concluded that the United States had done the right thing,
Speaker 1: but had acted in violation of international law. That may
Speaker 1: be what happened here. Well, Mike, you know, if the so,
Speaker 1: it sounds as though the president perhaps should have gone
Speaker 1: to the at least under the Convention should have gone
Speaker 1: to the u N and ask the security counts to
Speaker 1: authorize this um. But in a situation like this is
Speaker 1: not really practical if you've got a you've got a
Speaker 1: situation where there's nobody really on the ground who can
Speaker 1: ask for help. In a lot of ways, everybody's fighting.
Speaker 1: The US is really allied with anybody in Syria right now,
Speaker 1: and um, the you know, but somebody's got to stop
Speaker 1: aside from using chemical weapons. So is it really practical
Speaker 1: to say you should go through that sort of international um,
Speaker 1: that sort of international procedure. Well, it's practical in the
Speaker 1: sense that, of course there's no emergency. Uh, if the
Speaker 1: objective is to deter the use of chemical weapons and
Speaker 1: to punish Assad, that could be done a week from now,
Speaker 1: and the Security Council could conceivably authorize it within a week.
Speaker 1: So the problem is not practicality. The problem is political.
Speaker 1: There's a Russian veto that inevitably would be confronted, So
Speaker 1: you'd be in a situation, as Bill pointed out, rather
Speaker 1: like Kosovo where you're confronting massive human rights violations. That's
Speaker 1: that's not really I think disputable at this point. But uh,
Speaker 1: the paralysis of the Security Council, and that the unfortunate
Speaker 1: reality is that, uh, the international legal regime as it
Speaker 1: exists today doesn't adequately deal with these humanitarian crises. Bill,
Speaker 1: what do we do about that? We only have about
Speaker 1: a minute left now. But but I mean, if Mike
Speaker 1: is right, um, that that there is this political paralysis,
Speaker 1: and you know, it's certainly highly likely that Russians would
Speaker 1: have vetoed any Security Council resolution. You know, is there
Speaker 1: just no way around that in terms of practicalities and
Speaker 1: international law. Well, I think Mike is correct. But there's
Speaker 1: some things that we could have done and that we
Speaker 1: could still do or should have done and still could do.
Speaker 1: One is to get the support of some allies. There
Speaker 1: was no no announcement of support from our friends and
Speaker 1: allies before the fact or aft of the fact last night. Uh.
Speaker 1: And the second thing is that he could have gone
Speaker 1: to Congress to add some legitimacy to this, As Mike said,
Speaker 1: in a week's time or less, the Security Council could
Speaker 1: have met. I daresay Congress could have done the same.
Speaker 1: And judging from the reactions this morning and last night,
Speaker 1: the Republican Congress would have supported an authorization for the
Speaker 1: president to undertake these actions. We're talking about the legal
Speaker 1: basis for, or perhaps lack of legal basis for the
Speaker 1: missile strikes on Syria last night. Our guests are Michael
Speaker 1: Glennon of the Fletcher School at Tussa University and William
Speaker 1: Banks of Syracuse University Law School. Um, Mike, the I
Speaker 1: have some talking points from the White House here. Uh.
Speaker 1: One of the things in terms of their legal basis,
Speaker 1: and one of the things they point to is opinion
Speaker 1: issued by Barack Obama's Justice Department the Office of Legal
Speaker 1: Council as a basis for the intervention in Libya. In
Speaker 1: your mind, does that does that documents help the Trump
Speaker 1: administration out at all? Here? It may, But I think
Speaker 1: the most important pronouncement to come from Barack Obama was
Speaker 1: the statement that he made just before he was elected president.
Speaker 1: As a candidate for office. He gave the best one
Speaker 1: sentence summary of the president's independent power I think that
Speaker 1: anybody has given. Here's what he said. The President does
Speaker 1: not have power under the Constitution to unilaterally authorize a
Speaker 1: military attack in a situation that does not involve an
Speaker 1: actual or imminent threat to the nation. There is no
Speaker 1: actual or imminent threat of the United States posed by
Speaker 1: Syria today. There was not three days ago before we
Speaker 1: launched this attack. The question that he that he pointed
Speaker 1: to is whether there's an emergency. And this is the
Speaker 1: issue that Bill touched upon just just before the break. Clearly,
Speaker 1: if the President wanted to, he could go to the Congress.
Speaker 1: There's there's no set of exigent circumstances that required that
Speaker 1: this strike be launched when it was uh, There's there's
Speaker 1: plenty of time to hold hearings and hear experts, views
Speaker 1: pro and con It may be a good idea, it
Speaker 1: may not. But the bottom line is, if the President
Speaker 1: is going to expose the United States to the risk
Speaker 1: of involvement in a large war or the risk of
Speaker 1: a retaliation against American forces or civilians, unless there's a
Speaker 1: unless there's an emergency, he's got to go and get
Speaker 1: congressional approval first. Well, Bill that the President and some
Speaker 1: of the Republican supporters of of the president's actions here
Speaker 1: are appointing to Article two of the Constitution as power
Speaker 1: as commander in Chief and also the and also the
Speaker 1: War Powers Act, that he's going to go to Congress
Speaker 1: afterwards to to get authorization for further action. Is that
Speaker 1: what is the legal framework here for what the president
Speaker 1: is supposed to do in terms of involving Congress. Well,
Speaker 1: the President used military force on behalf of the United
Speaker 1: States and needed so unilaterally without either seeking the authorization
Speaker 1: of or the at least the consultation of Congress. As
Speaker 1: we know from our you know, Civics education as children,
Speaker 1: the use of force by the United States follows process
Speaker 1: that's very clearly stated in the Constitution. The Congress authorizes,
Speaker 1: and then the president carries out the will of Congress.
Speaker 1: That didn't happen in this case, and as we noted
Speaker 1: before the break, he certainly could go to Congress for
Speaker 1: that authority. It's it's important of the listeners to understand
Speaker 1: the difference between this military operation and the ones that
Speaker 1: President Trump, like the president before him, President Obama, taken
Speaker 1: with respect to EISL in Syria. Those operations, whatever one
Speaker 1: thinks of them, were authorized by an authorization for the
Speaker 1: use of military force enacted by Congress a few days
Speaker 1: after nine eleven. It's a bit of a stretch in
Speaker 1: many of us our views to apply that to EISEL,
Speaker 1: but there was at least authority on paper for military operations.
Speaker 1: This one here was out of whole cloth. Mike. It's
Speaker 1: I hear you and Bill both sort of making an
Speaker 1: argument about, you know, the constitutional powers of the respective branches,
Speaker 1: but haven't as a matter of practice, haven't we sort
Speaker 1: of ceded to the president and I we I mean
Speaker 1: in part Congress in the courts. Uh, you know, an
Speaker 1: awful lot of power to act very quickly and then
Speaker 1: maybe go back to Congress and and retroactively get authorization
Speaker 1: for for for what they just did. Now, I don't
Speaker 1: think so. First of all, when you look at those incidents,
Speaker 1: you find that almost all of them in flights with pirates,
Speaker 1: clashes with cattle, rustler's, trivial naval engagements, very minor uses
Speaker 1: of force that didn't risk involving the United States in
Speaker 1: the large scale war. That's really the issue here, Um,
Speaker 1: what is the risk that is incurred on behalf of
Speaker 1: the nation as a whole. And that's what distinguishes all
Speaker 1: these other incidents. There are just a small handful of
Speaker 1: incidents like this that create this level of risk. And
Speaker 1: let's be clear that risk is substantial. There American troops
Speaker 1: on the ground in Syria, in Iraq at the in
Speaker 1: syric of air base in Turkey right across the border. Uh.
Speaker 1: This is uh, this is a risky action, and it's
Speaker 1: a kind of risk that ought to be decided upon
Speaker 1: by the elected representatives to the people. I want to
Speaker 1: thank our guests. That was Michael Glennon talking. He is
Speaker 1: a professor at the Fletcher School at tuss University and
Speaker 1: William Banks he is director of the Institute for National
Speaker 1: Security and counter Terrorism at Syracuse Law School. We've been
Speaker 1: talking about the missile strike ordered by Donald Trump against
Speaker 1: against Syria and discussing whether there was legal authorization for that,
Speaker 1: and UH, there are certainly some questions that I have
Speaker 1: a feeling we are going to revisit in the coming weeks.