April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities

Citation42 Op. O.L.C 1
Decision Date31 May 2018
Docket Number18-1
CourtOpinions of the Office of Legal Counsel of the Department of Justice
PartiesApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities
April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities

The President could lawfully direct airstrikes on facilities associated with Syria's chemical-weapons capability because he had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense.

STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

On April 13, 2018, the President directed the United States military to launch airstrikes against three facilities associated with the chemical-weapons capability of the Syrian Arab Republic (“Syria”). The President's direction was consistent with many others taken by prior Presidents, who have deployed our military forces in limited engagements without seeking the prior authorization of Congress. This deeply rooted historical practice acknowledged by courts and Congress, reflects the well-established division of war powers under our Constitution. Prior to the Syrian operation, you requested our advice on the President's authority. Before the strikes occurred, we advised that the President could lawfully direct them because he had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense. This memorandum explains the bases for our conclusion.

I.

On April 7, 2018, the Syrian regime used chemical weapons in the eastern Damascus suburb of Duma. United States Government Assessment of the Assad Regime's Chemical Weapons Use (Apr. 13, 2018) (USG Assessment) https://www.whitehouse.gov/briefings-statements/united-states-government-assessment-assad-regimes-chemical-weapons-use/. At the time, the intelligence community had assessed that the regime carried out this attack with chlorine gas and perhaps with the nerve agent sarin as well. Briefing by Secretary Mattis on U.S. Strikes in Syria (Apr. 13, 2018) (Mattis Briefing) https://www.defense.gov/News/Transcripts/Transcript-View/ Article/1493658/briefing-by-secretary-mattis-on-us-strikes-in-syria/. The attack, part of a weeks-long offensive by the regime killed dozens of innocent [ 2] men, women, and children, and injured hundreds. USG Assessment. In this use of chemical weapons, the regime sought to “terrorize and subdue” the civilian population, as well as opposition fighters. Id.

The Syrian government's latest use of chemical weapons followed a string of other chemical-weapons attacks. The regime used sarin in November 2017 in the suburbs of Damascus and in an April 2017 attack on Khan Shaykhun. Id. It also dropped chlorine bombs three times in just over a week last spring and launched at least four chlorine rockets in January in Duma. Id. The U.S. government has assessed that the regime used chemical weapons on many other occasions-it has identified more than fifteen chemical-weapons uses since June 2017 in the suburb of East Ghutah alone-and believes that the regime, unless deterred will continue to make use of such weapons. Id.

On April 13, 2018, in coordination with the United Kingdom and France, the United States attacked three facilities associated with Syria's use of chemical weapons: the Barzeh Research and Development Center, the Him Shinshar chemical-weapons storage facility, and the Him Shinshar chemical-weapons bunker facility. Department of Defense Press Briefing by Pentagon Chief Spokesperson Dana W. White and Joint Staff Director Lt. Gen. Kenneth F. McKenzie Jr. in the Pentagon Briefing Room (Apr. 14, 2018) (statement of Lt. Gen. McKenzie) (DoD Briefing), https://www.defense.gov/ News/Transcripts/Transcript-View/Article/1493749/department-of-defense-press-briefing-by-pentagon-chief-spokesperson-dana-w-whit/. The Barzeh Center was used for the research, development, production, and testing of chemical and biological weapons. Mattis Briefing (statement of Gen. Dun-ford). The Him Shinshar sites were a chemical-weapons storage facility assessed to be the primary location of Syrian sarin-production equipment, as well as a chemical-weapons storage facility and an important command post. Id. In total, the United States launched 105 missiles from naval platforms in the Red Sea, the Northern Arabian Gulf, and the Eastern Mediterranean. DoD Briefing (statement of Lt. Gen. McKenzie). The missiles all hit their targets within a few minutes of each other, although the full operation lasted several hours. Id.

The United States deconflicted the airspace with Russia in advance and selected the sites to reduce the risk of hitting Russian forces. DoD Briefing (statement of Lt. Gen. McKenzie); Mattis Briefing (statement of Gen. Dun-ford). The strikes were timed to hit their targets around 4 a.m. local time to reduce casualties. DoD Briefing (statement of Lt. Gen. McKenzie). The sites [ 3] were chosen to minimize collateral damage, while inflicting damage on the chemical-weapons program. Id. ([T]hese are the targets that presented the best opportunity to minimize collateral damage, to avoid killing innocent civilians, and yet to send a very strong message.”); Mattis Briefing (statement of General Dunford) ([W]e chose these particular targets to mitigate the risk of civilian casualties, number one. We chose these targets because they were specifically associated with the chemical program . . . . So these targets were carefully selected with proportionality[, ] discrimination and being specifically associated with the chemical program.”).

The allied attacks followed a limited U.S. strike in April 2017, in the wake of Syria's use of sarin against civilians in Khan Shaykhun. At that time, the United States responded with fifty-eight missiles aimed at the Shayrat airfield, which damaged or destroyed Syrian fuel and ammunition sites, air defense capabilities, and twenty percent of the Syrian Air Force's operational aircraft. Remarks on United States Military Operations in Syria, 2018 Daily Comp. Pres. Doc. 201800242, at 1 (Apr. 13, 2018) (Remarks on Syria Operations); Statement by Secretary of Defense Jim Mattis on the U.S. Military Response to the Syrian Government's Use of Chemical Weapons (Apr. 10, 2017), https://www.defense.gov/News/News-Releases/News-Release-View/Article/1146758/statement-by-secretary-of-defense-jim-mattis-on-the-us-military-response-to-the/source/GovDelivery/. While the April 2017 strike targeted the airfield from which the Syrian regime delivered the weapons, the 2018 attacks were focused on the long-term degradation of Syria's capability to research, develop, and use chemical and biological weapons. Mattis Briefing (statement of Gen. Dunford).

II.

When it comes to the war powers of the President, we do not write on a blank slate. The legal opinions of executive advisers and the still weightier precedents of history have established that the President, as Commander in Chief and Chief Executive, has the constitutional authority to deploy the military to protect American persons and interests without seeking prior authorization from Congress. See, e.g., The President and the War Power: South Vietnam and the Cambodian Sanctuaries, 1 Op. O.L.C. Supp. 321, 331 (May 22, 1970) (Cambodian Sanctuaries); Training of British Flying Students in the United States, 40 Op. Att'y Gen. 58, 62 (1941) (Jackson, A.G.) (British Flying Students). The President's authority in this area has been elucidated by dozens of occasions over the course of 230 years, quite [ 4] literally running from the halls of Montezuma to the shores of Tripoli and beyond.[1] Many of those actions were approved by opinions of this Office or of the Attorney General, and many involved engagements considerably broader than the April 2018 Syrian strikes. The Constitution reserves to Congress the authority to “declare War” and thereby to decide whether to commit the Nation to a sustained, full-scale conflict with another Nation. Yet Presidents have repeatedly engaged in more limited hostilities to advance the Nation's interests without first seeking congressional authorization.

The President's authority to direct U.S. military forces arises from Article II of the Constitution, which makes the President the “Commander in Chief of the Army and Navy of the United States, ” U.S. Const. art. II, § 2, cl. 1, and vests in him the Executive Power, id. art. II, § 1, cl. 1. These powers allow him “to direct the movements of the naval and military forces placed by law at his command.” Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850). Chief Justice Marshall suggested that the President's “high duty” to ‘take care that the laws be faithfully executed, ' as well as his power as [ 5] Commander in Chief, imply some authority to deploy U.S. military force. Little v. Barreme, 6 U.S. (2 Cranch) 170, 177 (1804). The Supreme Court has recognized that the President holds the “vast share of responsibility for the conduct of our foreign relations, ” Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003) (internal quotation marks omitted), and holds “independent authority in the areas of foreign policy and national security, ” id. at 429 (internal quotation marks omitted); see also Dep't of Navy v. Egan, 484 U.S. 518, 529 (1988) (“The Court also has recognized the generally accepted view that foreign policy [is] the province and responsibility of the Executive.”) (internal quotation marks omitted). By its terms, Article II provides the President with the authority to direct U.S. military forces in engagements necessary to advance American national interests abroad.

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