WASHINGTON, DC — The Pentagon on Friday said it had domestic and multinational legal authorities under the U.S. Constitution and United Nations international law, respectively, to conduct lethal airstrikes in Syria against Iran-backed militia groups accused of targeting American troops and their allies in neighboring Iraq.
John Kirby, the Pentagon’s press secretary, commented on the legality of Thursday’s strikes in response to a reporter’s questions about concerns expressed by mostly Democrat lawmakers over whether the military action was legally justified.
President Joe Biden on Thursday ordered airstrikes in Syria that targeted infrastructure used by Iran-backed militia groups accused of launching several rocket attacks in Iraq. On February 15, one of those attacks that targeted the airport in northern Iraq’s Erbil region reportedly killed a Filipino contractor with the U.S.-led coalition and injured six others, including a National Guard soldier and four contractors, all American.
Biden was under pressure to respond, particularly since his predecessor, former President Donald Trump, had swiftly responded to similar attacks by Iran-backed militia groups with retaliatory strikes and after a short tit-for-tat, by ordering the killing of Iranian terrorist leader Qasem Soleimani, who was the leader of Iran’s elite Quds Force and responsible for the deaths of hundreds of Americans. He was killed on Iraqi soil.
Thursday’s strikes mark the first military action by the Biden administration.
The attack in Syria was meant to send “an unambiguous clear message” to “all adversaries in the region … that are operating in ways that are inimical to security stability of the region and to our interests into those of our partners that we will defend ourselves. That we will protect our interests,” Kirby told reporters.
He also said the attack aimed to hurt the militias’ ability to conduct future attacks, adding, “These targets were chosen carefully [and] very deliberately.”
Kirby said two F-15 fighter jets dropped seven bombs Thursday on buildings used by pro-Iran militants, decimating nine structures and partially destroying two in Abu Kamal, near the Iraqi border.
The location is known as a hub for the Iraqi Shiite militias backed by Iran, Kirby acknowledged.
Noting that there was no congressional authorization for the U.S. to carry out the strikes in Syria, a reporter asked the Pentagon spokesman to address the move’s legality.
Kirby responded:
There are two frameworks here [that] clearly define the legality of this strike. One is Article II [of the U.S. Constitution]. The commander-in-chief [President Biden], under Article II, has not only the authority but the obligation to protect American forces in combat theaters and in military operations. … Then, second, under Article 51 of the United Nations International Law, it gives nations involved in operations the right of self-defense.
Kirby did not mention the two Authorization of Use of Military Force (AUMF) approved by the U.S. Congress in 2001 in response to the 9/11 attacks and the other AUMF approved in 2002 to authorize the 2003 Iraq war.
In justifying taking military action in the Middle East, Biden’s old boss, former President Barack Obama, cited the 2001 AUMF to the dismay of a bipartisan group of lawmakers who wanted to update the authorizations to reflect the conditions at the time.
Former President Donald Trump used the 2002 AUMF as his legal justification for assassinating Iranian Gen. Qassem Soleimani.
Killing of Soleimani was under 2002 authorization of use of military force, says NSA O’Brien.
— Steve Herman (@W7VOA) January 3, 2020
Experts and the mainstream media criticized Trump’s justification, called it a stretch since the 2002 AUMF was to act against the Iraqi regime under Saddam Hussein.
Even now-White House Press Secretary Jen Psaki and then-former Vice President Biden blasted the Trump administration for not having the authority to carry out strikes in Syria in response to Dictator Bashar al-Assad carrying out chemical weapons attacks against his own people.
Also what is the legal authority for strikes? Assad is a brutal dictator. But Syria is a sovereign country.
— Jen Psaki (@jrpsaki) April 7, 2017
This afternoon, I’ll be discussing Donald Trump’s recent actions in Syria and how his erratic, impulsive decisions endanger our troops and make us all less safe. Tune in at 5PM ET to watch live: https://t.co/6hXwCuCLsr
— Joe Biden (@JoeBiden) October 16, 2019
VP Kamala Harris also lambasted Trump for carrying out strikes in Syria without congressional authorization.
I strongly support our men and women in uniform and believe we must hold Assad accountable for his unconscionable use of chemical weapons. But I am deeply concerned about the legal rationale of last night’s strikes.
— Kamala Harris (@KamalaHarris) April 14, 2018
Biden, Harris, and Psaki’s change of heart prompted critics to call them out as hypocrites.
In the wake of Thursday’s attack, even Democrat lawmakers, including Sens. Time Kaine from Virginia and Chris Murphy of Connecticut, pushed back against Biden for carrying out the strikes without congressional authority.
Tim Kaine goes after Biden administration for the Syria strikes last night.
“Offensive military action without congressional approval is not constitutional absent extraordinary circumstances.” pic.twitter.com/uXXSdgEUeg
— Sam Stein (@samstein) February 26, 2021
Sen. Murphy, who sits on the Foreign Relations Committee, declared that “retaliatory strikes, not necessary to prevent an imminent threat, must fall within the definition of an existing congressional authorization of military force.”
“Congress should hold this administration to the same standard it did prior administrations and require clear legal justifications for military action,” he added.
Nevertheless, NBC News reported, “The administration said officials did brief congressional leadership before the airstrikes.”
While Kirby on Friday said it was too early to determine the number of militiamen killed in the strikes, the London-based Syrian Observatory for Human Rights, which tracks the conflict using sources on the ground, said the attack left at least 22 dead.
According to legal professor Oona Hathaway, Article II of the Constitution can be used to respond to “imminent threats” to the nation and when it is impractical or impossible to convene Congress.
The UN charter allows for a state to use force against another state when it has been the “subject of an armed attack” or “will imminently be subject to such an attack,” Hathway wrote in 2020 in the Atlantic.
She wrote, however, that the “threat must be so extreme and imminent that it would be unreasonable to seek the necessary approvals before taking action to defend the country.”
Some legal scholars argue a president can retaliate without Congress to attacks on U.S. military personnel or facilities.
Components of the Popular Mobilization Forces/Units (PMF/U), namely the Asaib Ahl al-Haq (AAH) and Kata’ib Hezbollah (KH), are known to operate along the Iraq-Syria border near where the U.S. strikes landed. Trump deemed AAH and KH Foreign Terrorist Organizations (FTOs), along with their ally, Iran’s Islamic Revolutionary Guard Corps (IRGC).
The Iran-backed PMF is an Iraqi state-sponsored and funded umbrella organization composed of dozens of predominantly Shiite militias.
A February 24 analysis by the Washington Institute for Near East Policy linked AAH to the deadly February 15 rocket attack that targeted U.S. troops and their allies in Erbil’s airport.
The February 15 incident reportedly marked the second strike on the city and the fourth major rocket attack on Iraq-based U.S.-led coalition facilities in Iraq since September 2020.
Thursday’s “strikes destroyed multiple facilities located at a border control point used by a number of Iranian-backed militant groups, including Kati’s Hezbollah (KH) and Kati’s Sayyid al-Shuhada (KSS),” Kirby said in a statement.
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