foreign interests

What Were the Legal (and Strategic) Grounds for Biden’s Syria Airstrikes?

A satellite image of the collection of buildings on the Syrian side of the border with Iraq which the Biden administration targeted with airstrikes on Thursday.
A satellite image of the collection of buildings on the Syrian side of the border with Iraq which the Biden administration targeted with airstrikes on Thursday. Photo: Handout/Maxar Technologies/EPA-EFE/Shutterstock

The airstrikes President Joe Biden ordered against Iran-backed militias in Syria on Thursday night are reigniting a longstanding dispute between the White House and Congress over the limits of presidential war powers.

The Pentagon and National Security Council say the strikes, which targeted facilities near the Syria-Iraq border and killed at least one militia member, were authorized as part of the president’s constitutional duty as commander-in-chief to protect U.S. forces and were a proportional response to recent rocket attacks on U.S. bases in Iraq. “The targets were chosen to correspond to the recent attacks on facilities and to deter the risk of additional attacks over the coming weeks,” White House press secretary Jen Psaki said on Friday.

Naturally, an old tweet of Psaki’s immediately came back to haunt her:

Biden and Vice-President Kamala Harris, like Psaki, are on the record questioning the legal basis of airstrikes that former president Donald Trump ordered in 2017 and 2019. Critics right and left jumped on these statements to accuse the administration of hypocrisy.

Several Democratic members of Congress, including senators Tim Kaine and Chris Murphy and Representative Ro Khanna, criticized the airstrikes and demanded that Congress be briefed on the matter. “Congress should hold this administration to the same standard it did prior administrations, and require clear legal justifications for military action, especially inside theaters like Syria, where Congress has not explicitly authorized any American military action,” Murphy stated. As these strikes were retaliatory and not in response to any imminent threat, Murphy argued, they were not legal without specific congressional authorization.

Biden is now the third president to order attacks in Syria without congressional approval since the start of that country’s civil war almost exactly a decade ago. Former president Barack Obama sought Congress’s permission to intervene and punish Syrian dictator Bashar al-Assad for the use of chemical weapons against civilians in 2013, but that resolution never got a vote.

The Obama administration proceeded to claim the 2001 Authorization for Use of Military Force (AUMF), which launched the Afghanistan War and the “War on Terror” writ large, and the 2002 AUMF for the Iraq War, as its legal justifications for intervention in Syria. The incredible staying power of these resolutions speaks to the amorphous and open-ended nature of these wars, as well as to just how wide the Bush administration opened the Overton window of presidential war powers. Kaine has been a leading voice in Congress calling for the repeal of the AUMFs from 2002 and 1991 (which, incredibly, is still on the books) and to update the 2001 AUMF for a more current outlook and a more limited scope.

The Trump administration also relied on the 2001 AUMF and the Article II theory of self-defense as justification for its airstrikes on Syria, as well as the more novel theory that it didn’t need Congress’s permission because the strikes simply didn’t rise to the level of “war.”

Biden has much more regard for constitutional checks and balances than Trump ever did, but the legal basis for Thursday’s action remains thin. To his credit, at least he attempted to make an argument on the basis of self-defense, and perhaps the threat the target posed was more imminent than we know. But most likely, the administration proceeded with the strike without asking Congress’s permission simply because the defense and national security brass knew they almost certainly wouldn’t get it and wouldn’t face any real consequences for acting without it. Dropping bombs in the Middle East without congressional approval has become a humdrum exercise by now.

The legal basis, or lack thereof, may be the grounds on which the political football is kicked around, but the bigger question is how these airstrikes fit into Biden’s broader strategy for dealing with Syria, Iran, and the wider Middle East. According to Biden, the point was to send a message to Iran: “You can’t act with impunity. Be careful.” The administration is making overtures to Tehran to try and revive the 2015 nuclear deal, which Trump scuttled in 2018, but does not want the Iranians thinking that means they can get away with launching proxy attacks on U.S. interests. This may not change Iran’s current ambivalence toward renewing the nuclear deal, but failure to respond to these attacks would definitely encourage worse behavior.

Picking a target in Syria was also intended to prevent escalation, as a strike in Iraq would have antagonized the Iraqi government, which the U.S. needs to keep on its side. Syria, Iran, and Russia all condemned the airstrikes, of course. In his statement, Russian foreign minister Sergei Lavrov claimed to have intelligence that the U.S. never plans to leave Syria and wants to break up the country. Perhaps we will never leave Syria, but not because we are eager to stay. Instead, it will be for the same reason we might never entirely leave Afghanistan or Iraq: the likelihood that these countries will collapse and spawn new transnational terrorist threats if we leave them unguarded.

Biden’s foreign-policy doctrine has yet to take shape, and his approach to the Middle East is particularly nebulous because it is simply not a priority. He is much more focused on our great power competition with China and Russia, America’s frayed alliances in Europe, and matters closer to home in the Western Hemisphere. He recognizes that the U.S. can’t fully disengage from the Middle East, but he doesn’t want to spend too much time on it if he can help it.

Biden’s actions in the Middle East so far point toward disengagement: stopping arms sales and support for Saudi Arabia’s intervention in Yemen, for example. Friday’s decision to release an intelligence report blaming Saudi prince Mohammed bin Salman for the murder of dissident journalist Jamal Khashoggi is also part of what the administration calls a “recalibration” of the U.S.-Saudi relationship — in other words, ending Trump’s coziness with the authoritarian regime in Riyadh. Biden’s first major foreign-policy address as president only covers Iran and Saudi Arabia in passing, and doesn’t mention Syria, Iraq, or Israel once.

Biden might be hoping to make the Middle East safe enough to put on the back burner: disentangle us from Saudi Arabia’s misadventures, revive the nuclear deal and put Iran’s nuclear program back on ice, let Israel handle its own problems. But it is really too early to draw any conclusions, especially because the greater Middle East has a way of sucking America back in just when we think we’re getting out. Thursday’s airstrikes are indicative of the kinds of decisions Biden will have to make throughout his presidency, whether he considers the region a priority or not. Soon, for instance, he will also need to decide whether to pull out of Afghanistan or double down on our troop commitment yet again.

Obama entered office pledging to end the Iraq and Afghanistan wars, and ended up getting mixed up in new crises in Libya and Syria, both of which remain basket cases to this day. As a candidate back in 2016, Trump wanted to get out of Afghanistan and Syria more than anyone, if only because he saw them as money pits. As president, he found himself unable to do so. No matter how noble his ambitions or how extensive his knowledge and experience may be, Biden may be cursed to the same fate.

The Legal (and Strategic) Grounds for Biden’s Syria Strikes