Trump's Syria strikes might have been illegal - and it shows Congress has limited power to stop him from going to war

US Navy photo by Mass Communication Specialist 3rd Class Kallysta Castillo

The guided-missile destroyer USS Laboon (DDG 58) fires a Tomahawk land attack missile April 14.

• President Donald Trump's administration over the weekend carried out its second military strike on the Syrian government without even asking for permission from Congress.
• Congress has the sole constitutional authority to declare war, but most US military action since 2001 has been covered by a sweeping Authorization of Use of Military Force that covers actions against terror organizations linked to the 9/11 attacks.
• But the US attacked Syria's actual government, not a terror group, on Friday, which legal experts say stretches the framework of the law.
• Few congressional checks remain on Trump's ability to start wars, and a congressman told Business Insider the legislature is "derelict in its duty" for allowing this.

President Donald Trump's administration over the weekend carried out its second military strike on the Syrian government without asking for permission from Congress, and it could indicate the legislature has lost its ability to stop the president from going to war.

The US constitution, in Article I, Section 8, clearly states that the power to declare war lies with Congress, but since 2001, successive US presidents have used military force in conflicts around the world with increasingly tenuous legality.

Today, most US military activity falls under a broad congressional Authorization of Military Force that passed in 2001 after the 9/11 terrorist attacks that allows the US to "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons."

This has essentially become a carte blanche for the US president to fight terrorism wherever it rears its head.

But on Friday night, and one year previous in April 2017, the Trump administration attacked Syria's actual government.

At Harvard's Lawfare blog, law professors Jack Goldsmith and Oona A. Hathaway both summed up all of the Trump administration's possible arguments for the legality of the Syria strikes in an article named "Bad Legal Arguments for the Syria Airstrikes."

The article concludes that the US's stated legal justification, that Article II of the constitution allows the US to protect itself from attacks, falls short, and that other legal arguments are a stretch at best.

California Rep. John Garamendi, a House Democrat on the Armed Services Committee who spoke with Secretary of Defense Jim Mattis hours before the strike, told Business Insider the strikes were probably illegal.

"The bottom line is I do not believe he has legal authority to conduct those strikes," Garamendi said.

Congress 'derelict in its duty' as Trump doesn't even try to get approval

US Navy photo by Mass Communication Specialist 3rd Class Kallysta Castillo

The guided-missile destroyer USS Laboon (DDG 58) fires a Tomahawk land attack missile April 14, 2018.

Trump "could have and should have come to Congress and said these facilities and the use of poisonous gas is horrific, it is illegal based upon the international conventions, and I want to take military action," Garamendi said. "I believe that a limited authorization to do that would have passed Congress in one day," if it had been written in a concise, limited way, said Garamendi.

But Trump did not ask for permission, and it shows the incredible power of US presidents to start wars.

"I think that Congress was derelict in its duty," said Garamendi. "Congress clearly has abdicated one of its most crucial functions, and that is the power to take the US into a war. The Constitution is absolutely clear, and it's for a very important reason."

Fred Hof, former US ambassador to Syria and Atlantic Council expert, pointed out that while there is some reason for Congress to allow the president leverage in where and when he strikes, the two branches of government still need to coordinate.

"Most, maybe all, in Congress would concede there are circumstances in which the commander-in-chief must act quickly and unilaterally," Hof wrote to Business Insider. "But there are reasons why the Constitution enumerates the duties of the Congress in Article One, as opposed to subsequent Articles. I really do believe it's incumbent on the executive branch to consult fully with the Congress and take the initiative in getting on the same page with the people's representatives."

Lawrence Brennan, a former US Navy Captain and an expert on maritime law, told Business Insider that "the last declaration of war was in the course of World War II," and that Congress has "absolutely" given the president increased powers to wage war unilaterally.

Possibly illegal strikes create a 'window' for the US's enemies

Thomson Reuters

Donald Trump and Vladimir Putin.

Trump's Syria strike had questionable legality, but it wasn't even the first time he struck Syria's government, as a salvo of 59 cruise missiles hit the regime in April 2017.

Before that, the US had attacked Libya's government in 2011. Now the US has stretched the 2001 congressional Authorization of Use of Military Force to attack Islamist militants in the Philippines, among other countries.

By neglecting to request congressional approval, thereby cementing the strikes as legal, Trump has "given Syria, Russia, and Iran an argument that never should have happened," according to Garamendi. By opening an internal US argument over whether the strike was legal or not, Garamendi says Trump has committed a "very serious error," and "opened a diplomatic attack that could easily have been avoided."

Trump certainly did not start the trend of presidents conducting the military without congressional approval, and he enjoyed wide support for his action against chemical weapons use, but the move indicates a jarring reality - the US president can go to war with thin legal justification and not even bothering to ask the legislature.