On the Challenge of Remaining in Syria without a Declaration of War

Image via BBC

Many today are rightfully concerned about how the US and coalition will leave the former territories of the Islamic State (ISIS). However, so few seem to understand in the discussion on the President’s decision to reduce troop presence in Eastern Syria the many challenges involved in leaving our US and coalition troop presence there in support of our Kurdish allies… allies among whom number countless heroic sacrifices in our mutual fight against what was ISIS, as well as other Jihadist scourges that have passed through the Euphrates Valley area of Iraq and Syria, such as Al Qaeda.

Many who are upset today forget that for any President of the United States, there are legal limits to where and how he conducts warfare. Although as a nation, the US has grown accustomed to conducting ‘wars’ without a formal and constitutionally required declaration of war, that does not mean that this constitutional requirement doesn’t exist. Congress, the President, and the military accept that the constitutional responsibility of Congress – not the President – to declare war is met through Congressional resolution and budget actions as a means of political expedience. The President, under his constitutional authority as Commander in Chief, and under the standing authority granted him by certain acts of Congress, may conduct limited military action for limited periods of time, but ultimately to continue military operations, he must secure from Congress some form of bicameral approval, as well as funding. That approval and funding is how Congress and the President meekly meet at least the spirit if not the letter of the Constitutional requirement for a ‘declaration of war.’

As to our occupation in Syria, there is no declaration of war, and no permanent legal authority for the US to remain in Syria. The original Obama Administration authority that lead to our current presence in Iraq and Syria in 2014 was to ‘defeat and degrade [ISIS]’ and to secure Iraq, under what is called “Operation Inherent Resolve.” As ISIS was transnational between Iraq and Syria, the original congressional funding allowance and authority were quite liberally interpreted to allow the US to participate with coalition partners in pursuing ISIS into Syria over the Iraqi border, under the first element: to defeat and degrade ISIS. However, once that element was achieved, the US military no longer would have a mission or legal purpose for being forward deployed into the legally sovereign territory of Syria, ruled by the Baathist / fascist regime of Bashar Assad. Regardless of your feelings towards the Assad government, they are legally and internationally recognized as the sovereign government of the whole territory of Syria. Occupying Syria against the will of the Syrian regime legally requires either (1) their permission, (2) some formal declaration that the United States no longer recognizes Syrian sovereignty, and/or (3) some form of a declaration of war by Congress against Syria.

We have remained there in eastern Syria this long (nearly half a decade) under the hazy claim that we were still fighting ISIS. The organized forces of ISIS have been defeated since 2017, with the exception of a small strip of territory in the Euphrates River Valley in Syria, that coincidentally has been the buffer between the converging coalition of US, Kurdish, and allies against the forces of the Syrian government, supported by Russians and Iranians. Naturally, the Syrians and their allies believe that their territorial integrity and the legally defined boundaries should be restored to where they were before ISIS emerged. This would mean that the territory that the Kurdish and US forces occupy now would have to be returned to them, and the Kurds would then have to return Iraq. The Kurds are naturally concerned that in doing so, they leave the former supporters of ISIS that they are currently suppressing to re-emerge under the incapable rule of Syria. Worse, the then lightly armed and unsupported Kurds will find themselves oppressed by their Iraqi masters, while being left exposed by their same Iraqi ‘countrymen’ to military raids from Turkey and Syria. This is not what anyone wants to see, except Turkey, and perhaps the axis of Russia, Iran, and China, in seeing a propaganda score against the United States and NATO.

Eastern Syrian territory formerly held by ISIS is now occupied by Kurdish troops. These fighters – some more ‘regular’ than others – are seen by the local primarily Arab population as foreign occupiers, because frankly they are, as the Kurdish homelands lay primarily in Northern Iraq. The Kurds themselves held a plebiscite vote in 2017, where 90% voted to secede from Iraq. Shortly after, the government of Iraq attacked and raided Kurdish cities – particularly those with petroleum assets nearby, and threatened war against technically their own people if the Kurds further rebelled. From the legal point of view of the United States, NATO and the United Nations that unless some nation were to recognize Kurdish independence, (as heinous as it sounds) any issue of rebellion between the Iraqis and Kurds would be an internal one for Iraq, and beyond the legal scope of the US and coalition mission in Iraq to fight ISIS. Additionally, if the US were to get involved, it would undermine any sense of legitimacy that the newly formed government of Iraq would have among its Arab population and among its neighbors, who already dismiss it as a puppet of the United States. Again, everything we do militarily must be within the confines of US and international law.

If we wish to leave to the Kurds a territory within the current borders of Iraq, we would find ourselves at war against the very government of Iraq that we helped install. So, for those who are dismayed at recent developments there, I challenge you with the same challenges facing the Commander in Chief, and all of us as a nation: how many more generations of occupation are required until the Kurds are capable of securing independence from our ‘allies’ Iraq and Turkey on their own? Are you willing to continue an occupation of the Euphrates River Valley in Syria for as long as it may take in order to see the radical cultural shift among the Syrian and Iraqi Arabs away from jihad and tribal retribution, even if that is another 20 years? Are you willing to upend the government of Iraq, and the last 20 years of effort to stabilize that nation for the sake of the Kurds? Are you and your Congressional representatives going to vote for war against Syria, and then subsequently Russia and Iran, in order to secure Eastern Syria for the Kurds, who in the long term have very little claim there? If so, the legal answer is for you to urge your congressional representatives to vote for a declaration of war against Syria… or perhaps the new government of Iraq.

In the meantime, if ISIS is truly defeated, then the President no longer has legal authority to remain in Syrian territory. If he is to change the mission to ‘defending the Kurdish people, and establishing their statehood,’ he would require a new congressional authorization, amending the nature of the coalition in support of Operation Inherent Resolve (not something many of those nations are willing to sign up for), and approval from the now sovereign governments of Iraq and Syria to remain in their territory in opposition of their desire and design to rule. Both nations have rejected this answer outright. If the President ignores their opposition, the whole of the Middle East will definitely collapse, while he has no legal authority, or Congressional support for anything at all, let alone a continuation of an already 17 year old war.

What could we have done to prevent this, you may ask? My best answer would have been to – in the aftermath of the Hussein regime – reconstitute Iraq into smaller countries, one of which would have been the sovereign nation of Kurdistan. Although that idea has always been a topic of debate, the argument against separation was that a two- or three-nation strategy may have encouraged annexation by Iran of the Shiite territories of Iraq, and Kurdistan alone may have tempted the Kurdish territories of Turkey to seek rebellion and unification with their cousins… something that Turkey would not let happen. That reason is precisely why the Turks today are seeking to end Kurdish military occupation along their border, for fears of rebellion. However, that boat sailed when the Obama administration ended original mission in Iraq.

The villains here, therefore, are not the US (albeit we are clearly not the most ideal of allies). The true villains and enemies of the Kurds in this situation remain the jihadist factions and remaining ISIS inclined Arabs; the Iraqi government, that refuses to respect their Kurdish ‘citizens,’ the Assad regime of Syria, who has no issue with the use of gas or Russian ‘mercenary’ troops against anyone; but most of all the Erdogan regime of Turkey, who collectively considers all Kurds guilty for the crimes of their own Turkish Kurds, and for this Turkish mortal threat to the Kurds is why we all mourn for the Kurds today.

So, If you seek to place your ire anywhere, it should be towards Turkey, and towards NATO for continuing an alliance with that nation that was historically referred to as the ‘Sick Man of Europe.’ But before you blame the President for leaving the Kurds, you should call your representatives, and demand that they do as you wish, and declare war on Syria.

-Copyright, James P. Freeman.

James P. Freeman is a United States Marine who currently lives in Fredericksburg, VA.

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