Thoughts on the Senate Foreign Relations Committee’s Narrow Version of the Syria AUMF

The Senate Foreign Relations Committee has drawn up its own version of a resolution authorizing the use of military force in Syria, which imposes significantly tighter constraints on the president than the administration version. Here is the key language [SEE IMPORTANT UPDATES BELOW]:

SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION-The President is authorized, subject to subsection (b), to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to: (1) respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria; (2) deter Syria’s use of such weapons in order to protect the national security interests of the United States and to protect our allies and partners against the use of such weapons; and (3) degrade Syria’s capacity to use such weapons in the future.

(b) REQUIREMENT FOR DETERMINATION THAT USE OF MILITARY FORCE IS NECESSARY- Before exercising the authority granted in subsection (a), the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that—

(1) the United States has used all appropriate diplomatic and other peaceful means to prevent the deployment and use of weapons of mass destruction by Syria;

(2) the Syrian government has conducted one or more significant chemical weapons attacks;

(3) the use of military force is necessary to respond to the use of chemical weapons by the Syrian government;

(4) it is in the core national security interest of the United States to use such military force;

(5) the United States has a military plan to achieve the specific goals of responding to the use of weapons of mass destruction by the Syrian government in the conflict in Syria, to deter Syria’s use of such weapons in order to protect the national security interests of the United States and to protect our allies and partners against the use of such weapons, and to degrade Syria’s capacity to use such weapons in the future; and

(6) the use of military force is consistent with and furthers the goals of the United States strategy toward Syria, including achieving a negotiated political settlement to the conflict….

SECTION 3. LIMITATION. The authority granted in section 2 does not authorize the use of the United States Armed Forces on the ground in Syria for the purpose of combat operations.

SECTION 4. Termination of the Authorization for the Use of United States Armed Forces.

The authorization in section 2(a) shall terminate 60 days after the date of the enactment of this joint resolution, except that the President may extend, for a single period of 30 days, such authorization if –

(1) the President determines and certifies to Congress, not later than 5 days before the date of termination of the initial authorization, that the extension is necessary to fulfill the purposes of this resolution as defined by Section 2(a) due to extraordinary circumstances and for ongoing and impending military operations against Syria under section 2(a); and

(2) Congress does not enact into law, before the extension of authorization, a joint resolution disapproving the extension of the authorization for the additional 30 day period; provided that any such joint resolution shall be considered under the expedited procedures otherwise provided for concurrent resolutions of disapproval contained in section 7 of the War Powers Resolution (50 U.S.C. 1546).

There is a lot here. But the key constraints are 1) the ban on the use of ground forces, 2) the requirement that the intervention end within 60 days, subject to a possible 30 day extension, and 3) the statement that force can only be used in a “limited and tailored manner.” The latter requirement may not be completely clear (it may not always be easy to tell the difference between a “limited and tailored” use of force and an unconstrained and indiscriminate one). But it’s still a stronger statement of the need for limits than the initial White House draft.

Defenders of very broad executive power might argue that these kinds of constraints on presidential power are unconstitutional. I disagree because they fall within the scope of Congress’ power to “make rules for the Government and Regulation of the land and naval Forces.” Moreover, as Jack Goldsmith points out, there is a great deal of historical precedent for such restrictions.

The more difficult questions are whether these restrictions are wise, and if so whether they are enough to justify a vote in favor of this narrower version of the AUMF. Whatever its other virtues, I don’t believe the new language does anything to solve the fundamental dilemma emphasized in my last post: a very limited intervention is unlikely to achieve much, while a broader one that succeeds in weakening Assad is likely to strengthen the radical Islamist opposition. If this dilemma can be overcome at all, the solution will be primarily military or political, rather than legal. If it can’t be, then even a narrowly drawn AUMF might be worse than simply refusing the administration’s request completely.

UPDATE: I should emphasize another important constraint in this draft: the geographic constraint limiting the authorization of military force to strikes on “legitimate military targets in Syria.” The original White House draft did not include such a limitation, thereby potentially leaving the door open to the use of force outside Syria, if the president determined that such attacks would be useful for the purpose of curbing the threat posed by Syrian WMD stocks.

UPDATE #2: Jack Goldsmith argues that this draft implicitly gives the president very broad authority because it does not constrain his “independent constitutional authority” to use force in Syria even without congressional authorization under his powers as commander-in-chief of the armed forces. But if the president has such authority, a congressional resolution could not take it away. To my mind, the very fact that Congress extends whatever authority is actually granted by the AUMF implies that the president did not have that authority in the absence of congressional authorization.

Goldsmith also argues that the draft’s recognition of the president’s “authority under the Constitution to use force in order to defend the national security interests of the United States” constitutes an important congressional recognition of inherent presidential power. I am not convinced. First of all, just as Congress cannot take away any inherent power the president may have under the Constitution, it also cannot add to that authority. The most Congress can do is authorize the president to take whatever actions may require congressional authorization. Second, the relevant language is actually consistent with the idea that the president cannot authorize large-scale nondefensive military action without congressional authorization. The key point here is that the wording only recognizes the president’s authority to use force “in order to defend the national security interests of the United States” (emphasis added). The word “defend” can reasonably be interpreted to require some sort of attack on American troops, civilians, or territory, for the president to defend against. Obviously, this depends on the breadth of the term “national security interests.” But the resolution does not require a broad definition, and the fact that it assumes that action against Syria requires congressional authorization suggests a relatively narrow definition of the president’s inherent authority.