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Biden's defense of new airstrikes in Iraq and Syria is weak

The legal justifications for using the U.S. military overseas shouldn't be an afterthought.

The United States launched airstrikes on another country’s soil this week. Again. According to the Pentagon, the “defensive precision” strikes hit their targets in Iraq and Syria. Great victory, huge success, everyone shrugs and goes about their day.

Had almost any other country in the world fired missiles outside its borders, it would have been a crisis — here, it was Sunday.

The U.S. government is basically allowed to conduct military operations on autopilot with the slightest oversight and accountability.

It bears pointing out that this is not a great way for a country to handle matters of war and death, especially not the most powerful country in the world, and especially not a country that espouses the power of democracy. The U.S. government is basically allowed to conduct military operations on autopilot with only the slightest oversight and accountability.

And while Congress is finally moving to do the bare minimum to curtail the White House’s ability to conduct “private wars,” there’s no sign that the executive branch is willing to dismantle the system that made these strikes a casual affair.

The aerial attacks were against “facilities used by Iran-backed militia groups in the Iraq-Syria border region,” Pentagon spokesperson John Kirby stated. Honestly, the who and what of the attack are almost secondary in this case because it bears almost no impact on the how of the matter. Which is to say, “How is it that the Biden administration has the authority to fire off missiles without there being a peep of debate in Congress or among Americans?”

Kirby offered up two defenses of the legality of the strikes in his statement:

As a matter of international law, the United States acted pursuant to its right of self-defense. The strikes were both necessary to address the threat and appropriately limited in scope. As a matter of domestic law, the President took this action pursuant to his Article II authority to protect U.S. personnel in Iraq.

Let’s unpack that some, starting with the international law defense. It’s true that under Article 51 of the United Nations Charter, states have a right to protect themselves against aggression. And it’s also true that the militias targeted have allegedly been using small drones carrying explosives to dive-bomb bases in Iraq in the last few months, including some where U.S. forces operate.

That’s a troubling development — but here’s where the real problem lies. First, while Article 51 has been a favorite justification from the U.S. for its military strikes, it’s debatable whether the clause was meant to allow for protecting troops based overseas instead of attacks directly on U.N. member states. Second, there wasn’t an attack occurring when the “self-defense” strike was launched — or even immediately preceding the U.S. strike. (The militias in question did, however, launch a retaliatory attack against U.S. forces based in Syria on Monday, which prompted return artillery fire from the U.S.)

It’s striking to me, pun unintended, that the Pentagon wouldn’t cite what until recently would have been the likely best legal justification for the attack.

Third, and most important, Iraq — the sovereign country that has in theory been the one actually under attack in these drone bombings — says that the U.S. was out of pocket Sunday. The strikes were a “blatant and unacceptable violation of Iraqi sovereignty and national security,” according to a statement from the military spokesperson for Iraqi Prime Minister Mustafa al-Kadhimi.

There are definitely domestic and international political reasons for Kadhimi to go hard on Biden right now, including not wanting to aggravate Iraqi political parties that have Tehran’s backing. And their larger neighbor just elected a new hard-line president, so it’s an opportune moment to curry favor with the new leadership. But it doesn’t exactly help justify Biden’s decision.

More troubling to me is the domestic legal defense that the Biden administration offered up for its actions. Congress hasn’t authorized any sort of broad campaign against the militias that the White House targeted. It hasn’t even offered up a narrow authorization that would clear this attack under domestic law. And it’s striking to me, pun unintended, that the Pentagon wouldn’t cite what until recently would have been the likely best legal justification for the attack.

In 2002, Congress passed an Authorization for the Use of Military Force, or AUMF, against Iraq. Unlike the much broader 2001 version that targeted al Qaeda and other terrorist groups, the 2002 AUMF gave the George W. Bush administration permission to “defend the national security of the United States against the continuing threat posed by Iraq.” Even after the 2003 war against the Iraqi government finally ended, though, Congress left the law on the books. It’s since then been used to justify things like the Obama administration’s war against ISIS in Iraq after its 2013 takeover and the expansion of that effort into Syria by the Trump administration.

Congress is finally moving to repeal the 2002 AUMF, something both parties agree is needed — sort of. The Democrats think the law just needs to be stricken, while Republicans argue that a new AUMF of some kind needs to take its place. Either way, the House this month passed its version of the repeal and the Senate is expected to take it up in the coming weeks.

That’s all great — but here’s the catch: Despite the strikes taking place in Iraq and Syria, the Biden administration didn’t even bother to cite the 2002 AUMF as giving it the power to launch the strikes. It likely knows that the law is on the way out, so why hinge military operations on a justification that won’t exist in the next few months?

Instead of citing any specific law, the strikes were presented as just something Biden's kind of allowed to do under Article II of the Constitution. It was also based on the idea that Biden was acting in his role as commander-in-chief to protect U.S. troops stationed abroad — but those troops are, in theory, only able to be stationed abroad because Congress has authorized their deployment as part of a legal operation.

That’s not how this should work. There can’t be a reliance on vague generalities. As we learned all too well in the Trump era, it’s never exactly comforting when a president bases his justification on a vague right under Article II. It’s even less so when it seems like this vague generality is meant specifically to provide an end-run around Congress. It shouldn’t be so easy for the president to launch a military attack overseas, and it shouldn’t be such a ho-hum experience that most Americans don’t even remember the attack happened two days later — if they ever heard about it at all, that is.