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United States Bombs Syrian Government Facilities in Response to Chemical Weapons Use

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On April 13, 2018, President Trump ordered the launch of air strikes against Syria in response to the Syrian government's apparent use of chemical weapons on civilians in the Syrian town of Douma a few days earlier. The air strikes, which targeted several weapons-related facilities of the Syrian government, were carried out in conjunction with the United Kingdom and France.

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1 Donald J. Trump, Remarks on United States Military Operations in Syria, 2018 Daily Comp. Pres. Doc. 242 (Apr. 13, 2018) [hereinafter Trump Remarks].

2 Donald J. Trump, Letter to Congressional Leaders on United States Military Operations in Syria, 2018 Daily Comp. Pres. Doc. 243 (Apr. 15, 2018) [hereinafter Trump Letter].

3 White House Press Release, Joined by Allies, President Trump Takes Action to End Syria's Chemical Weapons Attacks (Apr. 14, 2018), at https://www.whitehouse.gov/articles/joined-allies-president-trump-takes-action-end-syrias-chemical-weapons-attacks [https://perma.cc/7D2J-NWFG].

4 Trump Remarks, supra note 1.

5 White House Press Release, United States Government Assessment of the Assad Regime's Chemical Weapons Use (Apr. 13, 2018), at https://www.whitehouse.gov/briefings-statements/united-states-government-assessment-assad-regimes-chemical-weapons-use [https://perma.cc/5EAK-DJMW].

6 Id.

7 Id.

8 U.S. Dep't of State Press Release, On the Chemical Attack in Douma (Apr. 7, 2018), at https://www.state.gov/r/pa/prs/ps/2018/04/280313.htm [https://perma.cc/56XJ-PRMV].

9 Id. Resolution 2118, adopted in September 2013 in the wake of a chemical weapons attack against civilians during the Syrian civil war, condemned the use of chemical weapons, banned Syria from using them, and welcomed an agreement reached between Russia, the United States, and Syria regarding the destruction of Syria's chemical weapons. SC Res. 2118 (Sept. 27, 2013); see also Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States, 108 AJIL 94, 95 (2014) (describing this resolution and its context).

10 Russ. Fed. Foreign Ministry Press Release, Foreign Minister Sergey Lavrov's Interview With BBC HardTalk (Apr. 16, 2018), at http://www.mid.ru/en/web/guest/organizacia-po-zapreseniu-himiceskogo-oruzia/-/asset_publisher/km9HkaXMTium/content/id/3172318.

11 Off. of the Brit. Prime Minister Press Release, Syria Action – UK Government Legal Position (Apr. 14, 2018), at https://www.gov.uk/government/publications/syria-action-uk-government-legal-position/syria-action-uk-government-legal-position.

12 See Permanent Mission of France to the UN Press Release, Syria: Silence is No Longer an Option (Apr. 14, 2018), at https://onu.delegfrance.org/Syria-silence-is-no-longer-an-option (describing the strikes as “lawful” and referencing, among other things, the “goals and values proclaimed in the very first lines of the UN Charter”).

13 Justin Florence, What's the Legal Basis for the Syria Strikes? The Administration Must Acknowledge Limits on Its Power to Start a War, Just Security (May 8, 2017), at https://lawfareblog.com/whats-legal-basis-syria-strikes-administration-must-acknowledge-limits-its-power-start-war (commenting that “Members of the Administration have offered a plethora of inconsistent rationales for the [air] strikes”); cf. Alonso Gurmendi Dunkelberg, Rebecca Ingber, Priya Pillai & Elvina Pothelet, Mapping States’ Reactions to the Syria Strikes of April 2018, Just Security (Apr. 22, 2018), at https://www.justsecurity.org/55157/mapping-states-reactions-syria-strikes-april-2018 (listing possible claims of legality by the United States and more generally surveying state reactions to the air strikes).

14 Dunkelberg, Ingber, Pillai & Pothelet, supra note 13; see also Alonso Gurmendi Dunkelberg, Rebecca Ingber, Priya Pillai & Elvina Pothelet, UPDATE: Mapping States’ Reactions to the Syria Strikes of April 2018, Just Security (May 7, 2018), at https://www.justsecurity.org/55790/update-mapping-states-reactions-syria-strikes-april-2018 (updating their prior survey to include an additional twenty-three states and dividing the cumulative responses into ten categories).

15 Dunkelberg, Ingber, Pillai & Pothelet, supra note 13. For scholarly analysis on the legality of the air strikes, see, e.g., Ryan Goodman, What Do Top Legal Experts Say About the Syria Strikes?, Just Security (Apr. 7, 2017), at https://www.justsecurity.org/39712/top-legal-experts-syria-strikes; Jack Goldsmith & Oona Hathaway, Bad Legal Arguments for the Syria Strikes, Lawfare (Apr. 14, 2018), https://lawfareblog.com/bad-legal-arguments-syria-airstrikes (addressing legal theories that have been proposed to justify the legality of the air strikes and commenting that “there is no apparent domestic or international legal authority for the strikes”).

16 President of Russia Press Release, Statement by President of Russia Vladimir Putin (Apr. 14, 2018), at http://en.kremlin.ru/events/president/news/57257.

17 Sewell Chan, U.N. Security Council Rejects Russian Resolution Condemning Syrian Strikes, N.Y. Times (Apr. 14, 2018), at https://www.nytimes.com/2018/04/14/world/middleeast/un-security-council-syria-airstrikes.html.

18 Id.

19 Trump Letter, supra note 2.

20 Donald J. Trump, Letter to Congressional Leaders on United States Military Operations in Syria, 2017 Daily Comp. Pres. Doc. 244 (Apr. 8, 2017). A non-profit organization has filed a FOIA lawsuit against the Trump administration, seeking to obtain documents regarding its legal justifications for these April 2017 air strikes. See Chris Mirasola, Summary: Lawsuit to Release the Legal Justification of Syria Airstrikes, Just Security (Feb. 14, 2018), at https://www.lawfareblog.com/summary-lawsuit-release-legal-justification-syria-airstrikes; see also Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 111 AJIL 781 (2017) (discussing these strikes and some issues related to their legality).

21 April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, Memorandum Opinion of May 31, 2018 (Memorandum from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel), available at https://www.justice.gov/olc/opinion/file/1067551/download. The opinion indicates that legal advice to this effect was given before the strikes took place. Id. at 1 (noting that “[t]his memorandum explains the bases for our [earlier] conclusion”).

22 Id. at 3.

23 Id. at 10–11.

24 Id. at 11–12; see also id. at 15 (noting that “[i]n some [prior] cases, humanitarian concerns have been a significant, or even the primary, interest served by U.S. military operations”).

25 Id. at 18; see also id. at 9 (citing prior precedents in observing that congressional authorization may be required for a military engagement that rises to the level of a war).

26 Id. at 20.

27 Id. at 21–22.

30 The most prominent of these is a bipartisan bill, introduced by Senators Corker and Kaine. Authorization for Use of Military Force of 2018, at § 3(a), SJ Res. 59, 115th Cong. (2018). For discussion of another bill, see Heather Brandon-Smith, Senator Merkley's Smart New Alternative AUMF Proposal, Just Security (May 24, 2018), at https://www.justsecurity.org/56987/senator-merkleys-smart-alternative-aumf-proposal.

31 For an overview, see Sabrina McCubbin, Smith v. Trump: AUMF Challenge Pretrial Motion Summaries, Lawfare (Oct. 23, 2017), at https://www.lawfareblog.com/smith-v-trump-aumf-challenge-pretrial-motion-summaries. The case was argued in October 2017 at the D.C. Circuit, but, as of May 2018, the court had not issued its decision.

32 For an analysis on the legal issues, see Robert Chesney, A Primer on the Legal Dispute in Doe v. Mattis, Lawfare (Mar. 9, 2018), at https://www.lawfareblog.com/primer-legal-dispute-doe-v-mattis.

33 See Doe v. Mattis, 889 F.3d 745 (D.C. Cir. 2018) (holding that in the absence of an applicable statute or treaty, the United States could only transfer Doe as an enemy combatant if there is “legal authority for the Executive to wage war against the enemy” and there is “an opportunity for the citizen to contest the factual determination that he is an enemy combatant fighting on behalf of that enemy”). The D.C. Circuit issued this decision in May 2018 and it remains to be seen whether the United States will seek review of it.

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