In Wake of US 'Massacre' that Killed Russians in Syria, Senator Demands Release of Trump's Secret War Powers Memo
February 11, 2018
NBC News & World Socialist Web Site & The Globe and Mail
Sen. Tim Kaine is demanding the release of a secret memo that outlines Donald Trump's interpretation of his legal authority to wage war. Kaine's demand comes after the US-led coalition fighting ISIS in Syria conducted air and artillery strikes that killed an estimated 100 pro-regime fighters. Multiple reports indicate that Russian military contractors were among those killed in "devastating" US air and artillery strikes. The confrontation "raises serious questions about our continued presence in Syria."
Sen. Tim Kaine Demands Release of
Secret Trump War Powers Memo
Heidi Przybyla / NBC News & World Socialist Web Site & The Globe and Mail
WASHINGTON (February 9, 2018) -- Sen. Tim Kaine (D-VA) is demanding the release of a secret memo outlining President Donald Trump's interpretation of his legal authority to wage war. Kaine, a member of the Armed Services and the Foreign Relations committees, sent a letter Thursday night to Secretary of State Rex Tillerson seeking a seven-page memo the administration has kept under wraps for months.
Kaine has been leading the charge for Trump to outline his legal rationale for a US bombing campaign in Syria last April in response to President Bashar al-Assad's chemical attacks on civilians. Kaine and others worry that such action compromises congressional oversight over military action.
There is a new urgency to obtain the memo given increasing US involvement in Syria and recent Trump administration rhetoric on North Korea. Shortly after the 2017 bombing raid, several members of Congress called on Trump to justify it under US and international law. Article I of the US Constitution gives Congress the power to declare war.
"The fact that there is a lengthy memo with a more detailed legal justification that has not been shared with Congress, or the American public, is unacceptable," Kaine said in the letter to Tillerson, obtained by NBC News.
It has been standard for US presidents to release their legal arguments behind military strikes dating to the Korean War, according to Protect Democracy, a bipartisan group of lawyers. There have been a few exceptions, including the US invasion of Grenada in 1983 under President Ronald Reagan.
"I am also concerned that this legal justification may now become precedent for additional executive unilateral military action, including this week's US airstrikes in Syria against pro-Assad forces or even an extremely risky 'bloody nose' strike against North Korea," Kaine wrote.
According to a court filing provided by Protect Democracy, Attorney General Jeff Sessions was briefed last April on the substance of the memo. Sessions received the briefing so he could know "how to advise the president on future actions," the filing said, citing a Department of Justice attorney.
The Justice Department declined a request for comment.
Kaine's demand comes after a US-led coalition fighting ISIS in Syria conducted air and artillery strikes against pro-regime forces on Wednesday, killing an estimated 100 pro-regime fighters. The confrontation and last year's operation "raises serious questions about our continued presence in Syria," Kaine said.
It also follows recent talk from Trump administration officials -- including United Nations ambassador Nikki Haley -- suggesting the US stands ready to respond militarily to additional chemical attacks in Syria.
Lawmakers are also concerned about the administration's adversarial posture toward North Korea, including reported internal discussions of a first strike. On Monday, a group of Democratic senators organized by Sen. Martin Heinrich of New Mexico, sent a letter to Trump saying he lacks the "legal authority" to carry out a pre-emptive strike on North Korea.
Trump has previously suggested on Twitter he may dispense with diplomacy in North Korea, contradicting his own officials, including Tillerson.
Meanwhile, his administration has not committed to seeking prior approval from Congress or the United Nations Security Council for any potential action against North Korea.
Finally, Trump's demand for a US military parade in Washington, an event that has historically been associated with major wars, has raised concerns on both sides of the aisle.
"Unless Donald Trump goes to Congress before starting a new war, the real bloody nose is going to be the American Constitution," said Allison Murphy, counsel at Protect Democracy who served in President Barack Obama's White House Counsel's office.
"Congress needs to demand the secret Syria memo when the administration is threatening to use force around the world without authority," Murphy said, adding that the American people deserve to see it.
The memo's existence came to light last fall because of a Freedom of Information Act request by Protect Democracy seeking Trump's legal justification for the strikes.
Since the military action in Syria was against a foreign sovereign country -- and not ISIS -- there was no obvious legal basis for it, the group argued. In July, a US District Court judge ordered federal agencies to expedite their responses to the group's FOIA request.
Protect Democracy has also filed a lawsuit to determine whether the Trump administration is developing any analysis about a legal basis for a potential pre-emptive attack on North Korea.
The administration has shared a summary explanation of the memo, which Kaine read aloud during a Dec. 13 Senate hearing, claiming it "would completely wipe out Congress's power (to declare war) under Article I."
Defense Secretary James Mattis suggested last week that the US could launch further attacks against Syria. "You've all seen how we reacted to that," he said, referring to the April strikes.
A few days later, Haley warned the US will "not give up on the responsibility" to "provide real accountability for chemical weapons use in Syria."
Kaine's bid for more disclosure is part of a broader controversy over how legislation passed shortly after the Sept. 11, 2001, attacks is being used for an open-ended battle against Islamic terrorist groups, including ISIS, that are not covered under the current version of what's called an AUMF, or authorization to use military force.
Talks on Capitol Hill to approve a new AUMF have stalled amid disputes over issues including how to limit the war's geographic reach. Some lawmakers are also pushing back, leery of restricting the executive branch's interpretation of his current wartime powers.
Along with Sen. Jeff Flake, a retiring Republican from Arizona, Kaine has proposed a new war authorization bill. Others who've been outspoken include Sen. Bob Corker, a retiring Tennessee Republican who said in October that Trump's reckless threats against other countries could put the US "on the path to World War III."
Russians Reported Killed in US Strikes in Syria
Bill Van Auken / World Socialist Web Site & Global Research
(February 10, 2018) -- Multiple reports indicate that Russian military contractors were among the dead in air and artillery strikes launched Wednesday by the US military in the northeastern Syrian province of Deir Ezzor against forces loyal to the government of President Bashar al-Assad.
The Pentagon unleashed devastating firepower against the pro-government fighters on the pretext that they were mounting an attack against a headquarters of the Syrian Democratic Forces (SDF), the US proxy ground force that is dominated by the Syrian Kurdish YPG militia. US Special Forces troops directing the activities of the Kurdish proxies were stationed at the headquarters in the zone of influence carved out by the US intervention in Deir Ezzor, northeast of the Euphrates River.
Bombs and missiles were rained down upon the force, which reportedly included between 300 and 500 infantry, backed by tanks and artillery. US F15 fighter jets, Apache helicopters, AC-130 gunships and unmanned drones were all called in to attack the force, along with US artillery units.
According to Pentagon sources, 100 of the Syrian fighters were killed in the barrage. The Syrian government reported "dozens" killed in what it described as an unprovoked "massacre" and a "war crime."
Iran's Tasnim news agency quoted Syrian sources as reporting that several Russian military advisors were killed in the attack, which took place in the Khasham gas field in Eastern Deir Ezzor.
In the Washington Post, the newspaper's columnist David Ignatius, who is well-connected to the US military and intelligence apparatus and is currently reporting from US-occupied areas in Syria, quoted a Kurdish militia commander working with the US special forces. The Kurdish commander, identified as General Hassan, told Ignatius that:
"the casualties included some Russians, apparently from the mercenaries fighting alongside pro-regime forces."
CNN, meanwhile, quoted Pentagon officials as saying that they were investigating reports of Russian casualties in the US strikes.
Moscow has insisted that it had no uniformed military personnel in the area, but Russian private military contractors have provided significant forces in support of the Assad government.
The attack, comes barely half a week after last Saturday's shoot-down of a Russian Su-25 fighter jet over Idlib province. The plane was brought down by a shoulder-fired anti-aircraft missile, or MANPAD, most likely supplied by the CIA or Turkey to the so-called rebels dominated by Al Qaeda. A funeral for the pilot, Maj. Roman Filippov, who managed to eject but was killed on the ground fighting elements of the Al Nusra Front, was held in the southwestern Russian city of Voronezh Thursday, drawing some 30,000 people.
The two incidents have raised tensions in Syria between the two major nuclear powers to an unprecedented level.
The pretext for the illegal US military intervention in the country -- the so-called war against the Islamic State of Iraq and Syria (ISIS) -- has evaporated, and its real motives emerged ever more openly. These include Syrian regime change, sought initially through the support of the CIA and the Pentagon for Al Qaeda-linked Islamist militias against the Assad government, and, more broadly combatting Iranian and Russian influence and continuing the bloody decades-old campaign for US hegemony over the oil rich Middle East.
The US defense secretary, recently retired Marine Gen. James Mattis, gave a press conference Thursday insisting that the US massacre of pro-government forces in Deir Ezzor was an act of "self-defense," a claim belied by the fact that the US and its Kurdish proxies suffered not one fatality in the incident and reported a single YPG militia member wounded.
"Obviously, we are not getting engaged in the Syrian civil war," Mattis said, describing Wednesday's massacre as a "perplexing situation" and insisting he could not give "any explanation for why" the battle had erupted.
The immediate explanation, however, is made obvious by the location of the attack. The pro-government forces were moving into gas and oil fields that had previously been controlled by ISIS and fell under the sway of the American proxies of the Syrian Democratic Forces. As an SDF commander told the Wall Street Journal last September, after the fields were taken:
"Our goal is to prevent the regime from taking the areas of oil which will enable it to regain control of the country like it was before."
In this case, the word "our" refers to both Washington and its proxies.
US officials, most prominently Secretary of State Rex Tillerson, have made it clear that the US military force, officially consisting of some 2,000 special forces troops, will remain in Syria after the defeat of ISIS with the aim of toppling Assad and imposing a US puppet regime. To that end, Washington is determined to continue its carve-up of Syrian territory and to deny Damascus strategically vital energy resources in Deir Ezzor that are needed to fuel the country's reconstruction. This is why the attack was unleashed Wednesday.
The US announcement of an indefinite military occupation in Syria, along with its plans for deploying a 30,000-strong "border security force" consisting in large part of the Kurdish YPG militia, is the principal driving force of the renewed escalation of violence in the country.
The Turkish military has resumed its airstrikes against the northwestern Syrian enclave of Afrin following a four-day hiatus imposed by Russia after the shoot-down of the Russian fighter jet. It seems likely that Moscow, which exercises effective control over airspace in the region, gave the go-ahead to Ankara as a means of ratcheting up tensions between the US and Turkey.
Mattis, Tillerson and national security advisor H.R. McMaster are now all scheduled to arrive in Turkey next week for urgent talks with the government of President Recep Tayyip Erdogan. Erdogan, who has denounced the US plans as tantamount to creating a de facto Kurdish state on Turkey's border, has vowed to extend the Turkish offensive eastward into the town of Manbij, which is currently occupied by the YPG along with its US special forces handlers. This raises the prospect of an armed confrontation between the two ostensible NATO allies.
The British Independent's veteran Middle East correspondent Patrick Cockburn, citing sources in the region, reported this week that militia forces that are fighting alongside the Turkish army in the offensive in Afrin have been drawn almost exclusively from former ISIS fighters, who have been rebranded as the "Free Syrian Army."
Washington, undoubtedly aware of this fact, has made no move to interfere with the Turkish operation in Afrin, so long as it does not continue eastward into US-occupied territory. There is ample evidence that the Pentagon has made its own use of the former ISIS fighters, thousands of whom were evacuated -- along with their arms and ammunition -- from Raqqa and other cities besieged by the US and its proxies, in order to redeploy them against Syrian government forces.
Both Washington and the French government of President Emmanuel Macron have issued protests and threats over civilian casualties caused by Syrian government and Russian airstrikes against areas of Idlib province and Eastern Ghouta, outside of Damascus, that are controlled by Al Qaeda-linked militias. Dutifully echoed by the corporate media, these protests are utterly hypocritical, given the slaughter of tens of thousands carried out by the US itself in cites of Raqqa in Syria and Mosul in Iraq.
Unsubstantiated claims from Washington and Paris that the Syrian government, with Russian support, has carried out attacks using chlorine against the civilian population are being used to create conditions for a fresh military intervention against the Syrian government.
France's Minister of the Armed Forces Florence Parly declared in an interview with the French broadcaster Inter on Friday that Paris had "potential evidence of the use of chlorine" by Damascus, but "no definite proof."
This virtually echoes the statement made by US Defense Secretary Mattis, who threatened US military retaliation over unverified claims of chemical attacks, while acknowledging "we do not have evidence of it, but we are not refuting them."
On Friday, the New York Times prominently carried an article by veteran propagandist Anne Barnard, depicting harrowing accounts of alleged atrocities by the Syrian and Russian militaries, beginning with the line:
"Half a dozen newborns, blinking and arching their backs, were carried from a burning hospital hit by airstrikes."
Reflecting pressure within the US ruling establishment for a more aggressive US intervention against Syria -- as well as Iran and Russia -- the Wall Street Journal published an editorial Friday, criticizing the Trump administration for having "turned, almost Obama-like, to pleading with Russia to make Assad stop his latest assaults." It insisted that it was impossible to negotiate with Moscow, which "wants to keep Assad in power, maintain bases in Syria from which to threaten NATO, and thwart US goals in the Middle East."
Insisting that Damascus has violated Washington's "red line," it called upon the administration to "send another" message to Syria, like the firing of the 59 cruise missiles against the country last April.
Illegal but Legitimate?
The Consequences of US Action in Syria
Craig Forcese / Special to The Globe and Mail
(April 10, 2017) -- The United States has fired missiles at the Syrian military. This is a dramatic escalation in the horrific Syrian conflict. It is also the most legally doubtful use of military force by a NATO state in recent history.
To be clear, the regime of Bashar al-Assad has itself transgressed most bounds of international law and human morality -- most notoriously in what Western states believe was another chemical weapons attack on a civilian population.
But the problem is -- as it has always been with Mr. al-Assad's atrocities -- that atrocities are not themselves justification for one state to use force against another. This is true whether atrocities are committed with small arms or banned weapons of mass destruction.
Boiled to its essence, international law has limited use of force by one state against another to situations of self-defence or circumstances where force is authorized by the UN Security Council.
Here, there is no plausible basis for self-defence. The US has not been attacked by Syria. Nor have its allies. Nor is there any Security Council authorization -- thanks largely to the obstinacy of the Russians, allies of the Assad regime.
The result is a legal impasse, one that is not easily circumvented by creative lawyering.
Contrary to popular misunderstandings, there is no separate justification of "humanitarian intervention" or "responsibility to protect" in international law. Those who so claim aspire to a different international law than we have right now. This was most acutely the case in the Kosovo conflict in the late 1990s. There, NATO states engaged in a lengthy air war against Serbia in response to its conduct in Kosovo.
With no plausible basis in self-defence and no Security Council authorization, the best that could be said about that conflict was that it was "illegal but legitimate".
And so we face a repeat scenario: The international community has compelling reasons to punish transgressions of basic and elemental rules, in this case on the use of chemical weapons. Legally, those punishments involve prosecutions for war crimes and crimes against humanity.
But practically, criminal justice solutions require defendants in the custody of police and courts.
That situation does not exist in Syria. And so the US has instead chosen to signal that use of chemical weapons will be met with force. Its defence will likely focus on moral and political legitimacy, whatever the legalities.
But it is worth voicing a note of warning. The stern strictures on use of force were one of the great accomplishments of the post-war world order. It is true that they have been violated in the past. But it is very rare to find an instance where a state did not try (however implausibly) to defend its conduct as self-defence or authorized by the Security Council. Even the states that participated in the infamous 2003 Iraq war proposed a sort of residual Security Council authorization from the original 1990 Gulf War.
We should not dismiss the success of the postwar rules on military force. There are many civil wars. But armed conflicts between states are now rare, to a degree unprecedented in earlier centuries.
Kosovo did mark an exception to this pattern, now joined by the missile strike on Syria. Like in Kosovo, the United States' recent use of force pits that country against a Russian ally. But in other key respects, this is a different situation.
Russia has different ambitions than it did in the 1990s -- and has forces in Syria it has been prepared to use in support of Assad. Moreover, unlike in the Kosovo conflict, the US acted unilaterally, and not in close concert with its allies (whether they were notified or not).
We may have reason to regret abandoning the straitjacket of international law, regardless of the horrors that motivated this departure. There may be real costs to unravelling well-understood limitations on use of force in this manner, and in the most volatile of possible contexts.
And then there is the long-term consequence. After all, in this period of increased instability, acts done by today's great power -- even with the best of intentions -- may be mimicked by other aspirants, driven by less palatable objectives.
Be careful, in other words, what sort of international law you wish for.
Craig Forcese teaches national security and public international law at the University of Ottawa Faculty of Law. He is co-author of International Law: Doctrine, Practice and Theory and author of a forthcoming book tracing the origins of self-defence and the use of force in international law.
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