Monday, July 22, 2024

An Unauthorized War

Author: Brian Finucane

Affiliation: International Crisis Group, Reiss Center on Law and Security (NYU School of Law), and Former Attorney Adviser in the Office of the Legal Adviser at the U.S. State Department 

Organization/Publisher: Foreign Affairs

Date/Place: January 11, 2022/USA

Type of Literature: Article 

Word Count: 3164


Keywords: United States, Syria, Iran, War


The author—a former Legal Adviser at the US State Department—emphasizes the importance of what is happening in Syria and how the creative legal theories prepared by the executive authority, and not objected to by Congress, work to erode “use of military force” restrictions and increase the possibility of future conflict. Article I of the US Constitution gives Congress the power to “declare war.” Article II of the US Constitution gives the President broad authority to use force, but this authorization is not absolute. US law provides exceptions for obtaining approval from Congress, in the instances of self-defense and disputes prior-approved by Congress. Successive US administrations have accordingly engaged in clever legal maneuvers to force-fit a wide range of US operations within the scope of its laws, seeking to operate with legal cover when carrying out all its operations.  The author focuses on the operations of the US Army in northern Syria against armed groups affiliated with the Islamic State and others backed by Iran, where the US launched strikes against fighters described as “malignant parties backed by Iran” who it claims attacked a base housing American forces in eastern Syria. The writer talks about a complex environment inside Syria of militias backed by Iran, Russia, and other international parties, but without mentioning the militias supported by the US, such as the various Kurdish militias in northern Syria. The United States’ main argument for its intervention in Syria was to fight ISIS, but after its elimination there has been no legal justification for the continued presence of US forces, which has prompted America to find an excuse every time for its presence. The author says that the executive branch will work with Congress on new legislation that directly defines the parameters of US military activities in Syria. Under international law, the UN Charter prohibits force and assigns the Security Council the responsibility to authorize it to serve the maintenance of international peace and security. The US Congress has exercised its Article I war powers authority on many occasions, such as declaring war on Japan in 1941, to the broad mandate passed by Congress a week after September 11, which did not specify the enemy or terrorists’ form. From Obama to Trump to Biden, all successive US administrations have used the same pretext before international law, the guise of self-defense. The Biden administration and Congress need to work together to curb legal theories of war that go beyond the limitations of the United Nations Charter and the US Constitution, to prevent future administrations from extending the law any further. 

By: Taqwa Abukmeil, CIGA Research Assistant



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