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Legal Analysis

Sounds Like Trump Literally Stole His Legal Justification for Syria Attack… From Obama

After arguing for years that America should not intervene in Syria (and thoroughly criticizing Obama along the way), President Donald Trump reversed course and okayed the launch of missile airstrikes against Syria’s government last week. Trump’s Press Secretary Sean Spicer has stated that the attacks were a “justified and proportional” response to to the Assad regime attacks that left dozens of his own people dead. However, we have yet to hear the administration’s legal justification for such attacks — until now.

After all, as many have pointed out from both sides of the political aisle, the Constitution requires that Congress give approval before a President engages in an act of war. President Trump did not get approval from Congress. As I wrote about previously, Presidents have strayed from this concept over the last 70 years, but the bottom line is they all have relied on some kind of legal justification for unilaterally using military force without the consent of Congress. So what is Trump’s legal justification and is it constitutional?

Just Security, a well-respected national security blog run by several law professors and experts in the field, have obtained a memo that reportedly was developed by the Trump administration as talking points and purports to state Trump’s legal justification for Syria. And guess what? Looks like his attorneys stole the legal justification for the attack on Syria right out of the Obama playbook. Obama’s legal reasoning for intervening in Libya and Trump’s justification couldn’t be more similar.

The Trump memo states that the United States has a strong “national interest” in preserving regional stability in an area full of terrorist groups and the use of force would help prevent bad actors from obtaining weapons that could be used against the United States.

Sound familiar? It should, the words are pretty similar to what Obama’s lawyers wrote in a 2011 Office of Legal Counsel’s Memorandum justifying that use of military force in Libya without congressional approval.

Like Trump, Obama said he met with various congressional leaders before making his decision to use military force in Libya. And like Trump, Obama claimed that the intervention would promote the United States’ national interests.

“So while I will never minimize the costs involved in military action, I am convinced that a failure to act in Libya would have carried a far greater price for America,” Obama said back in 2011. He also stated that the America’s national interests would be promoted by keeping stability in the region. On Thursday, Trump harped on those themes as well and also stated, “It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” Trump repeated a similar line in a a letter that he sent to Congress saying promoting the United States’ national interests was within the constitutional scope of his authority.  The key words for both Obama and Trump are national security interest.

The Obama Libya memo indicated that military intervention was okay — because congress indicated, through passing the War Powers Act of 1973, that they only consider congressional authorization most critical for major prolonged hostilities not more limited engagements. Trump’s surrogates have been publicly stating this same reasoning on various news program when questioned about the attacks. (Mind you, this comes after Trump tweeted the below this back in 2013)

If those similarities are not clear enough, the Trump memo then goes on to state, “the domestic law basis is very similar to the authority for the use force in Libya in 2011, as set forth in an April 2011 opinion by the Department of Justice’s Office of Legal Counsel. Consistent with the War Powers Resolution, the President will notify Congress of the use of force.” Seems pretty obvious. Trump stole the the legal justification for Syria from Obama.

As for whether this is constitutional? There is much debate about that with many legal experts believing that both Obama and Trump have crossed the legal line by usurping the authority of Congress to promote an interventionist agenda. With that said, it has been done before.

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