Instead, administration officials say, the Constitution gives the president the authority, in certain circumstances, to order action against Assad’s forces.
Obama administration officials have begun telling senators that the legal authorizations that undergird the war on terror don’t permit the U.S. military to defend U.S.-trained Syrian fighters against troops commanded by Syrian President Bashar al-Assad — but that the Constitution does.
“If Syrian government forces attack the Syrian fighters we have trained and equipped while they were engaging ISIL, the President would have the authority under Article II of the Constitution to defend those fighters,” a senior administration official told Defense One.
It’s an acknowledgement that the mission in Syria has grown past its already-stretched-thin legal framework.
As recently as July, military officials on the ground in the region told Sen. Tim Kaine, D-Va., that the rules of engagement didn’t allow American troops to protect the Syrian fighters. But in an Armed Services hearing last week, Kaine asked what authority would allow such action. Defense Undersecretary Christine Wormuth, the Pentagon’s policy chief, responded that the existing authorizations for the use of military force, or AUMFs, cover actions against ISIS or al-Qaeda affiliates, but not against Assad’s armed forces.
But if U.S.-trained Syrian forces “are attacked by the regime in a particular circumstance, we could — the president could exercise his Article II rights under the Constitution,” Wormuth said.
Responded Kaine, “I have not seen an interpretation of Article II — ever — that would allow the United States to undertake action under Article II to protect others’ fighters.”
Such concerns have led other members of the Armed Services Committee to ask Defense Secretary Ash Carter for a briefing on the changes he is considering for the program and the new legal argument. “The troubling state of the program calls into question its role in our counter-ISIL operations,” wrote Sens. Deb Fischer, R-Neb., and Claire McCaskill, D-Mo., in a letter released Friday evening.
Senators have been asking such questions since early July, when the first class of the U.S. program was preparing to graduate. Republican Sens. Lindsey Graham, S.C., and Mike Lee, Utah, said they have yet to hear back from the Defense Department on similar questions they asked three months ago. Lee was set to receive a briefing on the issue, but it was moved to Monday due to Pope Francis’s visit.
Initially, Carter said the United States had an obligation to the Syrians it trained to fight ISIS — but said he didn’t know whether that included the use of force. Administration officials have since hedged on how far they would go to defend them, saying Assad’s forces had heeded back-channel warnings to stay out of the way of U.S. and coalition forces – and by extension, the U.S.-trained fighters.
“They’ve basically stated ‘the new rules of engagement we have would allow us to do it,’ so to state that ‘we can do it,’ but then say, ‘Don’t worry, we probably won’t have to, so we don’t have to have an answer on the legal authority question,’ is disingenuous,” Kaine told Defense One earlier this month. “If they change the rules of engagement to allow it to be done, then they’ve got to have a legal rationale.”
Kaine said senators who previously were content to accept the administration’s legal arguments have become concerned that the mission in Syria has crept past the limits of the AUMFs.
“We haven’t really authorized the war at all yet,” he said. “I think we’re going to get dragged into doing an authorization because this thing is mutating and more complexities are coming up.”
When asked whether the AUMF covers engaging Assad’s forces, Senate Foreign Relations Committee Chairman Sen. Bob Corker, R-Tenn., said simply, “It does not.”
“And I would think any AUMF that we put forth, it would be important for that element to be there, to protect the train and equip people that are coming forward,” Corker told Defense One.
“I passed with others an AUMF to deal with this issue in 2013,” he said. “And had that happened and the president carried out the activities, had he actually wanted there to be a debate instead of jumping into the lap of Putin, and Iran, we wouldn’t be where we are today.”