Lawfare Archive: War Powers and the Biden Administration
Jan 27, 2024
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John Bellinger, former legal adviser at the State Department, and Scott Anderson, Lawfare senior editor, discuss Biden's military strikes in Syria, the Biden administration's justification for the strikes, limited congressional notification and pre-strike briefing, advanced consultation, authorization, and domestic politics, potential changes in national security strategy, continuity of U.S. administration's approach to war powers and preemptive war, PPG implementation and AUMF reform, and the challenges of closing Guantanamo.
The Biden administration justified military strikes in Syria based on self-defense and the concept that Syria is unwilling or unable to address the threat.
The legal framework for the strikes combines international law principles of self-defense with domestic constitutional authority, rather than relying on previous congressional authorizations.
The Biden administration supports a narrow and specific framework for AUMF reform, including the potential repeal of the 2002 and 1991 Iraq AUMFs.
Deep dives
Legal Justifications for Strikes in Syria
The podcast episode discusses how the Biden administration justified its military strikes in Syria. The administration claims to act in self-defense and argues that the strikes were necessary to prevent ongoing or imminent attacks by non-state actors. This justification is based on the concept that the Syrian government is unwilling or unable to address the threat. The administration's legal framework combines international law principles of self-defense with domestic constitutional authority, rather than relying on previous congressional authorizations. The conversation also delves into the continuity of war powers policies across different administrations and the potential implications for future AUMF reform.
Domestic and International Legal Issues
The discussion explores the legal basis for the strikes in Syria from both domestic and international law perspectives. Under international law, the United States claims that it is acting in self-defense against an armed attack by non-state actors, even if the host state, Syria, did not carry out the attacks. This is justified on the grounds that Syria is unwilling or unable to address the threat. The domestic legal justification differs from the previous administration, as the Biden administration does not rely on prior congressional authorizations, instead citing constitutional power alone. The conversation also examines the concept of anticipatory self-defense and the potential expansion of the unwilling or unable test in justifying uses of force abroad.
Congressional Notification and AUMF Reform
The podcast discusses the circumstances surrounding congressional notification of the strikes in Syria, where a limited number of members were briefed shortly before the strike took place. The conversation highlights the need for clearer procedures and communication between the executive branch and Congress. Additionally, the episode touches on the prospects for AUMF reform under the Biden administration. While the administration has not specified which war powers authorities it seeks to replace, there are indications that it supports a narrow and specific framework to replace existing authorizations. The potential repeal of the 2002 and 1991 Iraq AUMFs is mentioned, while acknowledging the complexity of revising the 2001 AUMF due to differing opinions on its scope and language.
The Challenges of War Powers Reform
The podcast discusses the challenges and potential for war powers reform, highlighting the complex dynamics between Congress and the President in making decisions about the use of military force. The guests argue that a democratic Congress constraining a democratic president could create an opportunity for reform. While the need for war powers reform is recognized, there is skepticism about the likelihood of significant changes, with the 2001 AUMF likely to remain intact due to the high barriers to amendment or repeal. Guantanamo closure is also mentioned as an unresolved issue, with political obstacles and the need for congressional action.
The Biden Administration's National Security Strategy
The podcast delves into the legal and policy frameworks report and the Interim National Security Strategy released by the Biden administration. While the legal and policy framework report is not yet public, it is expected to comment on the Trump administration's approach and potentially set forth the Biden administration's own framework without significant changes from the Obama era. The Interim National Security Strategy emphasizes multilateralism, US leadership, and working with international institutions and rules. It also cautions that force will be used as a last resort, but notes the administration's willingness to use force to defend Americans. The prospects for AUMF reform are discussed, with the 2002 AUMF related to Iraq seen as low-hanging fruit for potential repeal, while consensus on the 2001 AUMF remains difficult to achieve.
From March 12, 2021: President Joe Biden has conducted military strikes in Syria, has articulated legal theories under which the series of strikes were proper and has temporarily reined in the use of drone strikes. To talk about Biden and war powers, Benjamin Wittes sat down with John Bellinger, who served as the legal adviser at the State Department and the legal adviser for the National Security Council in the Bush administration; Lawfare senior editor Scott Anderson, who worked in the State Department's Office of the Legal Adviser, as well as in the Iraqi embassy; and Rebecca Ingber, who also worked in the State Department's Office of the Legal Adviser and is currently a professor at Cardozo Law School. They talked about how the Biden administration justified the strikes in Syria, the reports it has not yet given on its legal and policy framework for counterterrorism, whether this is the year that AUMF reform might finally happen and which authorizations to use military force might finally see reform.
