Last week, in the wake of President Trump’s decision to attack three chemical-weapons facilities in Syria, Senator Sanders said:
President Trump has no legal authority for broadening the war in Syria. It is Congress, not the president, who determines whether our country goes to war and Congress must not abdicate that responsibility…If President Trump believes that expanding the war in Syria will bring stability to the region and protect American interests, he should come to Congress with his ideas.
I shared Sen. Sanders’ comment on Facebook a few days after he released it, and a family member of mine wrote, “This has been disputed since the dawn of time and never stopped. [If a Republican President does it, the Democrats] bitch, and vise versa.”
My family member was not wrong, but I wanted to look a little deeper into it. So I read this interview with a constitutional lawyer about whether the bombing was illegal. He answers that, “to be legal, the strike would have to be authorized either by some act of Congress or by the president’s own powers under Article II of the Constitution.”
The interview turns on the question of whether the attack fits the powers granted in Article II. Presidents of both parties have used them to explain any aggressive military decisions made without the approval of Congress, but, according to the constitutional lawyer, “the only condition the Supreme Court has ever expressly endorsed is to ‘repel sudden attacks,’ which basically means the president doesn’t have to wait for Congressional authorization to respond militarily to an attack against us.”
No reasonable person could conclude that President Trump authorized missile strikes on Syria last week to repel a sudden attack against the United States, so it would seem his decision was illegal.
But if his decision was illegal, so were the actions of the military men and women who enacted his decision. As this article in Counterpunch explains, “the moral and legal obligation [of members of the U.S.’s armed forces] is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the [Uniform Code of Military Justice].”
I don’t want to indict the men and women in the armed forces who carried out the President’s order, but I would like put their superior officers on trial.
It is getting to the point in this country where there’s a more than decent chance that shit is about to go down. Every day that Special Counsel Mueller gets closer to his quarry is one more day the President and his allies have to get squirrelly. If we really believe this President is in cahoots with other uber-rich oligarchs, then we have to believe he has no true loyalty to any particular nation. His loyalty, like his wealth, is transnational, and any nationalistic bird whistle in his message is just that, a song he sings to lure a flock of innocents into his cage.
The day is coming when he is going to turn to the senior members of his military and command them to ‘repel a sudden attack’ from his true domestic enemies, and they’re going to have to decide if they follow his unlawful order. Will they defend the person of the President or will they defend the Constitution?
To enforce the representative power of the nation once again, Congress ought to call the military to account. If this President sees himself above and beyond the law, nothing Congress can do will stop him, short of a guilty verdict of impeachment. In light of that near impossibility (pre-January 2019), Congress ought to demand publicly-sworn loyalty oaths from the senior officers of the United States military.
From what former FBI Director James Comey has told the public, the FBI and the Department of Justice are apparently on the side of the Constitution. Speaking not for the political appointees, but the men and women in the trenches of the Bureau and DOJ, he swears they will follow the word and spirit of the law.
Say what you will about whether we can believe him. I, for one, found him credible and willing to defend that, regardless of whether he made mistakes, he made them honestly and with a clear sense of right and wrong when it came to defending the integrity of the Bureau and the Department of Justice.
I have chosen to take him at his word, and to find hope in his words. If the Department of Justice is firmly on the side of the Constitution (regardless of the standpoints of its Secretary and other political appointees), then President Trump’s only recourse on the day of his reckoning will be to the senior officers of his military.
And we need to know — publicly — where they stand.
