By Lily Goff
On Thursday, February 25, 2021, the United States conducted an air strike against Iran-backed militias located in Eastern Syria near the Iraq border. The strike came at the direction of President Biden and was conducted in response to an on-going threat posed by the militia group that had recently attacked US personnel in Iraq, according to the Department of Defense. While some members of Congress were notified of the strike before it was carried out, several senators were critical of the President for failing to acquire Congressional approval before acting. The senators further demanded that the President retroactively provide both his rationale for ordering the strike and his legal justification.
The White House released the President’s letter to the House and Senate on February 27, in which the President explained that he directed the strike against the militia group responsible for the February 15 attack in Erbil, Iraq against US forces because the group was planning future attacks. The President felt that the strike was “necessary and proportionate action” that was consistent with the War Powers Resolution, his constitutional authority as Commander in Chief and Chief Executive, and the United States’ right of self-defense articulated in Article 51 of the United Nations Charter. In his letter, the President made no mention of the Authorization for Use of Military Force (AUMF) as a justification for his action, which Congress has sought to repeal in recent years.
Article 51 of the UN Charter states in part that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the [UN] Security Council has taken measures necessary to maintain international peace and security.” Because the US strike was in response to the militia attack in Iraq ten days prior, the President asserted in his Letter to Congress that the strike was justifiable on self-defense grounds. What remains unclear, however, is whether the President sought any remedy in conjunction with the UN Security Council as is eventually required by Article 51 of the Charter. In response to the 9/11 attacks on the United States in 2001, the UN Security Council passed Resolution 1368, adopted on September 12, 2001. The resolution recognized “the inherent right of individual or collective self-defence in accordance with the Charter” of the UN to respond to terrorist attacks. The United States has generally used this provision to justify attacks against terrorist groups even though they are generally non-state actors within the borders of a sovereign state. While prior to 2001 this kind of action met sharp resistance in the international community, the UN and other States do not attempt to prevent this type of self-defense today. Thus, the President will be able to justify his directions under his Article 51 argument because it is highly unlikely that the UN Security Council will take any action against the US for this attack.
The War Powers Resolution declares in Section 2 that the President’s constitutional power as Commander in Chief limits his ability to direct attacks to when Congress has declared war, Congress has authorized the action by statute, or there is “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Section 4 requires that the president must submit a report to the Speaker of the House and the president pro tempore of the Senate within 48 hours of the action taken. The report must include “(A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement.” The President properly reported his letter within 48 hours of the strike and provided a sufficient rationale for the target and the action. He explained that his constitutional authority rested on his authorization “to conduct United States foreign relations and as Commander in Chief and Chief Executive.” He provided no legislative authority for his action and made no indication as to his intent to engage with the militia group in the future. Therefore, the President’s report is incomplete because it fails to provide sufficient explanation of his authorization and does not provide any indication as to whether this strike constituted a one-time attack or a continued conflict.
If the President hopes to avoid any further condemnation from Congress for directing this air strike, he should consider providing an updated letter to Congress to further explain his authorization to conduct the attack. He must elaborate on his Commander in Chief powers under the Constitution since the War Powers Resolution already expressly acknowledges those. Further, he must provide statutory authorization for the action, and would be well served to look to the AUMF. Although Congress disfavors the AUMF, providing some statutory authorization is better than providing none. Further, the statutory authorization may become more appealing to Congress depending on the results of confidential briefs to be given to Congress early in the week of March 1. Finally, the President should explain whether he intends to conduct any further strikes, and if so, he must outline how long he expects to engage the Armed Forces in this task.