Jon Schwartz — Donald Trump Ordered Syria Strike Based on a Secret Legal Justification Even Congress Can’t See

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Mike Norman
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On Friday night, President Trump ordered the U.S. military to conduct a bombing attack against the government of Syria without congressional authorization. How can this be constitutional, given the fact that Article I, Section 8 of America’s founding document declares that “The Congress shall have Power … To declare War”?

The deeply bizarre and alarming answer is that Trump almost certainly does have some purported legal justification provided to him by the Justice Department’s Office of Legal Counsel — but no one else, including Congress, can read it.

The Office of Legal Counsel is often called the Supreme Court of the executive branch, providing opinions on how the president and government agencies should interpret the law.

We know that Trump received a top secret OLC opinion justifying the previous U.S. strike on Syria on April 6, 2017. Friday’s bombing undoubtedly relied on the same memo or one with similar reasoning.… 

It is not unprecedented for the OLC’s reasoning to be classified. Over 20 percent of its opinions between 1998 and 2013 have been secret....

It's bipartisan anyway.

In 1950 President Truman sent hundreds of thousands of troops to Korea to fight an extraordinarily brutal war without any authorization from Congress. Instead, his administration claimed he had the power to do this because Article II, Section 2 of the Constitution says that the president “shall be Commander in Chief of the Army and Navy of the United States.” Therefore, “the President’s power to send the Armed Forces outside the country is not dependent on Congressional authority.”...

This perspective on presidential power eventually become dogma for the U.S. hard right. Congress in fact did authorize the Gulf War in 1991, but Dick Cheney, who was then Secretary of Defense, believed that this was totally unnecessary, and indeed later claimed the George H.W. Bush administration had the power to go to war even if Congress had voted the resolution down. “We had the Truman precedent from the Korean crisis of 1950,” Cheney explained. “From a constitutional standpoint we had all the authority we needed.”...

So the general outlines of Trump’s legal basis for Friday’s bombing are fairly clear. There also are truly extreme. As Jack Goldsmith, one of the heads of the OLC during the Bush administration, has said, it’s a perspective that “places no limit at all on the president’s ability to use significant military force unilaterally.”

That would be bad enough, of course, if everything were out in the open. But at least then it could be debated on specifics, rather than supposition. Instead, we have allowed the Constitution to be eviscerated to the point that not only does the president have nearly unlimited war powers, we can’t even say exactly why.