On Friday night, President Trump ordered the U.S. military to conduct a bombing attack against the government of Syria without congressional authorization. How can this be constitutional, given the fact that Article I, Section 8 of America’s founding document declares that “The Congress shall have Power … To declare War”?
The deeply bizarre and alarming answer is that Trump almost certainly does have some purported legal justification provided to him by the Justice Department’s Office of Legal Counsel — but no one else, including Congress, can read it.
The Office of Legal Counsel is often called the Supreme Court of the executive branch, providing opinions on how the president and government agencies should interpret the law.
We know that Trump received a top secret OLC opinion justifying the previous U.S. strike on Syria on April 6, 2017. Friday’s bombing undoubtedly relied on the same memo or one with similar reasoning.
So while over 80 members of Congress wrote to Trump on Friday night stating that “engaging our military in Syria … without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution,” their action has no impact. The military will rely on the OLC’s opinion that, constitutionally speaking, Trump’s orders were perfectly fine. And it will be quite difficult for members of Congress to argue otherwise, since they don’t even know what the Trump administration’s precise rationale is.
It is not unprecedented for the OLC’s reasoning to be classified. Over 20 percent of its opinions between 1998 and 2013 have been secret.
However, these OLC memos were generally written on government actions that were themselves classified. One notorious example is the so-called “torture memos” produced by the OLC during the George W. Bush administration...
Read the full article, with possible updates, at The Intercept.