John Bellinger - "It Will Be Critical for President Trump to Learn and Follow Domestic and International Law Governing the Use of Force"




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Nov 24, 2016
by John B. Bellinger III
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John Bellinger - "It Will Be Critical for President Trump to Learn and Follow Domestic and International Law Governing the Use of Force"

International law expert and former Legal Adviser to the Department of State offers advice to the new US President on the legality of use of military force

This is the full text of the lecture given by John B. Bellinger III at the U.S. Supreme Court on the occasion of the Sixth Annual Lloyd N. Cutler Lecture on the Rule of Law

For further analysis of the lecture, read David Rennie's Lexington column in The EconomistDonald Trump and the dark side

Because this is the Lloyd Cutler Rule of Law Lecture, and we have just elected a new President, I've decided to speak tonight about some of the most important legal rules applicable to the next President, the laws that govern his use of military force. These were issues that I was extensively involved in when I was the legal adviser to the National Security Council, and then later as legal adviser to the Secretary of State. And these were laws that were also of great interest to Lloyd Cutler personally.

One of the best-known moments of his tenure as counsel to the President was the advice that he gave in 1980 that the War Powers Resolution did not require the President to consult with Congress before ordering U.S. armed forces to attempt the rescue of the American hostages in Iran. Lloyd wrote and spoke about this incident on a number of occasions, recalling that the operation was so secret that he was told to consult no one, and that he did his own research in the White House library.

Now, the United States has now been in a continuous state of armed conflict for over 15 years straight. Presidents Bush and Obama have ordered the use of military force in Afghanistan, Pakistan, Yemen, Iraq, Syria, Somalia, and Libya, and perhaps other countries as well. President-Elect Trump will become Commander-in-Chief when the United States continues to use military force in all of these countries, and he may find it necessary to order the use of force in other countries over the next four years.

It will be critical for President Trump, Vice President Pence, and their senior advisers to learn and follow domestic and international law governing the use of force. And if there's one message I have tonight, that is it.

Many previous Presidents, even those with government experience as state governors, such as Presidents Reagan, Clinton, and George W. Bush, were initially unfamiliar with these rules that limit their actions as Commander-in-Chief and Head of State. They had to be schooled by their advisers and to learn the applicable law.

During Mr. Trump's presidential campaign, I and many others were extremely troubled by his statements advocating counterterrorism policies that would violate domestic and international law, statements that were reiterated today by his Vice President. Such statements may have appealed to some voters during a campaign, but they must be strongly repudiated by a President of the United States.

Now, any new President is likely to find it frustrating to try to comply with domestic and especially international laws governing the use of force. Some of the key governing laws rules are old and were not designed for contemporary problems. The War Powers Resolution was enacted by Congress in 1973 during the Vietnam War. The UN Charter was drafted in 1945 after World War II. The Geneva Conventions were adopted in 1949 and were intended to apply to conflicts between states. Even the two protocols to the Geneva Conventions negotiated in the 1970s after the Vietnam War were not negotiated with modern terrorists in mind.

But even if these rules are dated, a President is still required by the Constitution to comply with domestic law and with international law as a matter of international obligation, and for reasons of reciprocity and practicality.

This evening I want to discuss the applicable rules regarding the use of force and how the last two Presidents have tried to comply with them. I want to draw some lessons from my own service in the Bush Administration, and then and with some recommendations for President-Elect Trump and his advisors. Now, this is obviously a very broad subject area, and I plan just to focus really on the rules that govern the initiation of hostilities rather than the specific rules that govern the conduct of hostilities. So, let me just quickly remind you of the domestic law rules that the President must operate under.

Under Article II of The Constitution, the President has broad, but not unlimited, powers as Commander-in-Chief and Chief Executive to authorize the use of military force in self-defense or to serve important national security interests. Now, most Presidents prefer also to seek congressional authorization in the form of an authorization to use military force, or an AUMF, if possible. But Congress can be reluctant to vote to authorize the use of force, and the President must often push hard for congressional authorization. Congress has not voted a new AUMF since authorizing the use of force against Iraq in October 2002.

Presidents must also take into account the War Powers Resolution of 1973, which purports to require the President to report the introduction of U.S. armed forces into hostilities or combat situations, and to terminate any use of force covered by the resolution within 60 days unless Congress issues a specific authorization. And I say "purports," as most of you know, because most Presidents have concluded that at least some parts of the War Powers Resolution are unconstitutional, although all Presidents have tried to act consistent with the Resolution's provisions.

So, that's the applicable domestic law in broad brush, but executive branch lawyers also usually want to ensure that any U.S. of military force in another country is consistent with international law. But international law rules can be even more challenging than domestic rules.

The UN Charter prohibits the use of force against or in another country unless authorized by the Security Council or the state itself consents. Article 51 of the Charter, however, recognizes that every state has an inherent right to use force in collective or individual self-defense in response to an armed attack. Most international lawyers agree that this includes a right to use force in anticipatory self-defense to prevent an imminent attack, although lawyers debate the definition of "imminence."

These are the only bases for the use of force recognized in the UN Charter. The UN Charter does not specifically permit a state to intervene in another country for a humanitarian purpose. The United Kingdom and a few other countries have asserted that international law permits the use of force to prevent a humanitarian catastrophe in limited circumstances, but the United States and the majority of countries do not recognize a right of humanitarian intervention.

So, with that background, let me quickly survey the difficulties that the last two Presidents have had trying to comply with those rules in U.S. military actions against al-Qaeda and the Islamic State as well as in Iraq and Libya. President Trump will face the same challenges.

Let me start with the conflict with al-Qaeda. As you know President Bush and Obama have been using substantial military force against the Taliban, al-Qaeda, and associated groups for 15 years since October 2001. As domestic law authority, they've relied on the authorization to use military force passed by Congress in September 2001, which I helped to draft when I was in the White House. That authorizes the use of force against persons or organizations that committed the 9/11. This has been the authority for a vast amount of counterterrorism action -- the invasion of Afghanistan in 2001, more than 500 drone attacks in Afghanistan, Pakistan, Yemen, and Somalia, and the detention of thousands of individuals.

In recent years, however, Administration lawyers have had to stretch to conclude that the 2001 authorization authorizes the use of force against new terrorist groups loosely associated with al-Qaeda that did not exist at the time of the 9/11 attacks, such as Boko Haram in Nigeria, or al-Shabaab in Somalia.

Now, with respect to international law, both the Bush and the Obama Administrations have cited a right of self-defense to use force against al-Qaeda and associated groups in multiple countries, including hundreds of drone strikes during the Obama Administration. But what has been more controversial has been the U.S. use of force against terror suspects in countries that have not themselves consented to the use of force in their territory. Both Administrations have asserted a right to use force against terrorists in the territory of any country that is unable or unwilling to prevent the threat posed by terrorists as the Obama Administration did in the raid in Pakistan that killed bin Laden.

So, in short, although there was clear domestic and international law basis to use force to respond to the 9/11 attacks, it has been harder for Executive Branch lawyers to argue that the 2001 authorization and international law permit the use of force against groups that did not exist 15 years ago, or that operate in countries that have not consented to the use of force. And there continues to be significant disagreement among legal experts, both inside Side and outside the United States, regarding whether U.S. actions have been lawful.

So, that's the use of force against al-Qaeda and associated groups. Let me turn to the Iraq War.

Although the war was controversial, it was clearly authorized as a matter of domestic law. In October 2002 in the last authorization that Congress passed, Congress authorized the President to use force to defend the national security of the United States against the continuing threat posed by Iraq and enforce all relevant UN Security Council resolutions regarding Iraq. So, while the domestic legal basis was clear, the international law basis was less so.

The United States and the United Kingdom had tried to persuade the Security Council to adopt a new resolution authorizing the use of force against Iraq after Saddam Hussein had failed to comply with his obligations, but they were unable to do so. And so, they instead relied on UN Security Council resolutions that had been adopted by the Security Council in 1990 and 1991, more than a decade earlier at the time of the first Gulf War. The U.S. and its allies concluded that these old resolutions continued to provide authority for the use of force against Saddam. Many critics of the Iraq War believed that it was legally wrong to rely on these decade-old old Security Council resolutions.

Let me turn to the Obama Administration's use of force in both Libya and against ISIS before drawing some conclusions.

As a candidate, President Obama said the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the Nation. But as President, he has been unable to secure new congressional authorizations for his Administration's conflicts in Libya and with ISIS in Iraq and Syria.

In Libya, the Obama Administration participated in an air campaign from March to October 2011 with a coalition of other countries in response to serious human rights violations by the Gaddafi regime. The initial U.S. use of force was clearly permitted as a matter of international law after the UN Security Council adopted UN Security Council Resolution 1973, authorizing member states to use force to protect civilians and civilian populated areas under threat of attack. But many government and legal experts believe the U.S. and its allies exceeded this authority when they went farther to overthrow the Gaddafi government. But even if the use of force was permitted under international law, President Obama never pushed Congress to pass an authorization to provide specific authority for the Libya War. He relied instead on his Article II powers as Commander-in-Chief, contrary to what he said he would do as a candidate.

As the conflict in Libya continued, President Obama confronted the requirement in the War Powers Resolution that the President terminate the use of armed forces after 60 days unless specifically authorized by Congress. And faced with the choice of either scaling back U.S. military operations or declaring the 60-day termination provision unconstitutional, the White House instead chose a third route. They instead chose to interpret the provision not to apply.

In June 2011, the White House notified Congress that the termination provision was not triggered because U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor did they involve U.S. ground troops. This highly unusual interpretation was widely criticized by Congress, the press, and legal experts, who accused President Obama of undermining a key legal check on arbitrary presidential power.

Let me end with the President's difficulties in his military campaign with ISIS, which commenced in the summer of 2014.

President Obama initially informed Congress that he was relying on his Article II powers. In September 2014, however, the President and his lawyers were again faced with the War Powers Resolution's 60-day termination provision as they had in Libya in 2011. Instead of continuing to rely on his Article II power, the President present notified Congress that the use of armed forces against ISIS actually had been specifically authorized by Congress in the 2001 and 2002 AUMFs against al-Qaeda and against Iraq on the basis that ISIS, even though it was not associated with al-Qaeda, was actually a descendant of al-Qaeda. Now, this interpretation relieved a -- Congress from having to vote on a new AUMF before the midterm elections, but the Administration's reliance on these decade-old authorizations was widely viewed as a very strained legal interpretation.

After the election, at the urging of many members of Congress, especially Senator Tim Kaine, the White House asked Congress to pass a new AUMF specifically authorizing the use of force against ISIS. But the White House draft was viewed by many Democrats as too permissive and by too -- and by many Republicans as too restrictive. And despite urging by President Obama to take a vote, both the House and the Senate were unable to agree on consensus language to authorize the use of force against ISIS.

The U.S. use of force against ISIS in several countries has also raised difficult questions under international law. While the governments of Iraq and Libya have consented to the use of force against ISIS in their countries, the Syrian government has not agreed to the use of force against ISIS in Syria. And the U.S. appears to be relying on a theory of self-defense on the basis that President Assad is unwilling or unable to stop the threat posed by ISIS.

So, that is a brief survey of the difficulties that the last two Presidents have had trying to comply with domestic and international law rules regarding the use of force. President Trump and his lawyers will face similar challenges.

A major part of the problem is that the domestic and international law rules were intended to address previous historical events and are not sufficiently flexible to address contemporary challenges, such as terrorism by non-state groups and governments that abuse their populations. When legislative institutions like Congress and the Security Council become gridlocked and refuse to act, the President and his lawyers are left with the choice of not acting in the American interest, ignoring the law, or interpreting in the law in strained ways.

Clearly it would have been better for President Bush to have secured a new Security Council resolution for the Iraq War rather than rely on decade-old resolutions, just as it would have been better for President Obama to have secured new congressional authorizations for the US air campaign in Libya and against ISIS rather than interpreting the War Powers resolution not to apply, or relying on the 2001 and 2002 AUMFs. But the Security Council and Congress had refused to act.

As long as the conflicts with al-Qaeda, ISIS, and other terrorist groups continue, President Trump and his lawyers will have to deal with difficult questions of interpretation of the 2001 AUMF and of international law rules governing the use of force. President Trump seems less likely than President Obama or Hillary Clinton to order the use of force in another country, such as Syria, for humanitarian purposes, but he could still confront a situation that would lead him to want to intervene in Syria or elsewhere to prevent a humanitarian catastrophe. So, I want to end with some specific recommendations for President Trump and his administration to address some of these legal challenges.

Let me begin with domestic law. With respect to the conflicts with al-Qaeda and ISIS, President Trump should push Congress hard to enact a new authorization early in 2017. And rather than go through the exercise twice, he should ask Congress to pass a comprehensive new authorization against terrorist groups that revises and updates the 15-year-old 2001 AUMF and also authorizes the use of force against ISIS. The authorization should be broad enough to authorize the use of force against groups that pose imminent threats to the United States.

Now, congressional Democrats may be reluctant to give President Trump any additional war powers, but he should agree on his side to reasonable limits to avoid protracted ground wars. More generally, President Trump should ask Congress in 2017 to revise and update the War Powers Resolution, which has increasingly been ignored by modern Presidents.

The White House should study the recommendations of the National War Powers Commission, which was co-chaired by former Secretaries of State James Baker and Warren Christopher, and issued a report in 2008 that called the War Powers Resolution impractical and ineffective. The Commission stated that no President has treated the resolution as mandatory and "that this does not promote the rule of law." They recommended that the Resolution be repealed and replaced with a mandatory consultation process.

In 2013, Senators Tim Kaine and John McCain introduced the War Powers Consultation Act to implement the Commission's recommendations. Any general reform of the War Powers Resolution must address contemporary conflicts and take into account increasing congressional reluctance to vote to authorize the use of force.

Now, President Trump and his advisors may not view a new counterterrorism AUMF or a reform of the War Powers Resolution as top legislative priorities, but they should undertake the effort anyway as a matter of good government. The 2001 AUMF has been stretched far beyond its original purpose, and the War Powers Resolution is close to becoming meaningless.

With respect to international law governing the use of force, the President and his White House advisers should resist any temptation to ignore international law as politically correct or as Lilliputian infringements on U.S. sovereignty. If the United States violates or skirts international law regarding use of force, it encourages other countries, like Russia or China, to do the same, and it makes it difficult for the United States to criticize them when they do. And if the United States ignores international law, it also makes our friends and allies who respect international law, such as the UK, Canada, Australia, and EU countries, less likely to work with us. Unlike Russia and China, the United States has many friends and allies who share our values, including respect for the rule of law, but we lose our friends when we do not act consistent with law and our shared values.

More generally, President Trump should recognize that when he speaks as President, he speaks to multiple audiences. He must be cautious not to advocate policies that will provide cover for unlawful actions by other governments. Moreover, statements that are popular with some in the United States may be highly unpopular and stir up anti-American sentiments abroad.

When I made this argument in the Bush Administration, some of my colleagues responded by saying, "It doesn't matter what other countries think. They don't vote for us." But other countries do vote for us by deciding whether to cooperate with us on intelligence, law enforcement, diplomatic, and military matters.

During the Bush Administration, many European governments became reluctant to share intelligence information with us because they believed our intelligence agencies might use information to commit violations of law. And after what I heard this morning, I can see that happening again.

The Trump Administration must also recognize that foreign leaders face their own domestic political pressures, and they must respond to the views of their own populations. If the U.S. government engages in unilateral actions or pushes foreign leaders to join in American actions that are unpopular or viewed as unlawful in their own countries, the U.S. loses the support of these governments, and may actually cause them to fall.

President Trump will find that he will be most effective in his international actions if he works with our allies rather than alienating them. The Bush Administration learned this lesson from its actions in the first term, including the Iraq War and some of its counterterrorism policies. In its second term, the Bush Administration found that it could be more successful through multilateral diplomacy. The United States achieves more, not less, through international cooperation.

To the extent that international law rules regarding the use of force are outdated, and they are, the Trump Administration should work with other countries to update them rather than condemn them or ignore them. Other governments are unlikely to amend the UN Charter or to replace the Geneva Conventions, but the Trump Administration can still work with them to develop principles or additional rules so that international law can evolve to address contemporary international problems.

When I was legal adviser, I began a series of talks that David referred to with our closest allies that produced principles for use of force against terrorist groups in countries that are unwilling or unable to prevent the threats. The Administration should continue to refine these principles so that they are accepted by a broader group of states. And the Administration should also work with other governments to develop new rules for detention of non-state actors where even the International Committee for the Red Cross has acknowledged that there are legal gaps that need to be filled.

And even if President Trump is initially disinclined to use military force for humanitarian purposes, his Administration should still continue discussions with U.S. allies regarding the appropriate circumstances for humanitarian intervention. Should President Trump decide to use force in another country for a humanitarian purpose without approval of the Security Council, he should be prepared to explain when and why the use of force is legitimate under certain limited circumstances, even if not clearly lawful under international law.

In closing, when Donald Trump becomes President he will have the awesome responsibility of commanding the most powerful military in the world. He will immediately be responsible for the direction of our military in combat operations in at least seven countries in the Near East and North Africa. At some point over the next four years, he may have to make the very difficult decision to send U.S. armed forces into action in or against another country either to defend the United States or U.S. interests.

Because they are likely not familiar with the domestic and international law rules that govern the use of military force and the conduct of military operations, President-Elect Trump and Vice President-Elect Pence should take time during the transition to be briefed on these rules and understand why they are important. The President should appoint Secretaries of Defense and State and senior White House advisers who know the applicable law and have experience with the use of military force. Choosing a White House counsel and deputy counsel with experience in national security issues will be vital. We must hope that President Trump will select advisers as wise as Lloyd Cutler to give him sound legal advice, and that he will listen to their advice.

Thank you.

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The full text of the lecture can be read