Last week I asked whether Presidents have a stronger obligation to obey domestic law than they do to obey international law, and suggested at least one argument for that view. In a very interesting pair of posts, Marty Lederman provides reason to think that President Obama may have this view as well. Treaties have legal status both as domestic law and international law, but they can have different statuses. Congressional authorization would trump the U.N. Charter as a matter of domestic law, even though an attack on Syria would probably still violate the Charter as a matter of international law. There’s much more detailed analysis in his posts. [...]
First, as Jack Goldsmith and others have pointed out, the constraints on presidential power created by the resolution’s limitations on the range of objectives the president can pursue is partially undermined by the fact that the draft allows him to use force whenever “he determines to be necessary and appropriate” in order to achieve those goals. One can argue that the president can potentially use the resolution to justify the use of force against anyone anywhere in the world so long as he says doing so is “necessary and appropriate” for the purpose of combating the threat of Syrian WMDs. For example, he could argue that the resolution authorizes him to attack Russia or Iran on the grounds that their support of Assad has emboldened him and thereby made further use of chemical weapons more likely. At the same time, this is one of those cases where it may be wrong to read legalistic language too literally. In practice, it might be reasonable to read an implicit good faith and proportionality restriction into this language. For example, if it looks like the president is using this authority in a way that is pretextual, the resolution would not authorize that. In addition, regardless of the details of the text, it would be politically difficult for the president to use the resolution to start a massive war after having gotten it passed by telling everyone that he envisions only a very limited resolution. That said, I do think this part of the language is overly broad. If Congress votes to authorize the use of force at all, it should probably delete this [...]
Co-blogger Dale Carpenter rightly poses the question of what an authorization to use military force in Syria would actually authorize. The Obama Administration has just released the text of its proposed congressional resolution, which might help answer that question. Here is the most important part:
AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES
(a) Authorization. — The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to –
(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; or
(2) protect the United States and its allies and partners against the threat posed by such weapons.
This wording is narrow in one sense, but very broad in another. It is narrow in so far as the purpose is limited to dealing with chemical weapons and other WMDs, as opposed to pursuing broader objectives such as the overthrow of the Assad regime. It’s broad, however, in the sense that it allows the president to use force against a wide range of possible adversaries, not just Assad and his government. For example, it is certainly broad enough to allow Obama to target the Syrian rebels if he determines that they have chemical weapons or are likely to acquire them soon. The radical Islamist terrorists among the rebels surely qualify as “terrorist groups or other state or non-state actors” that the resolution would allow the president to target if it seems likely that Syrian WMDs [...]
Now that the president has vowed to seek Congress’s approval even for what he promises will be very limited military action in Syria, an interesting question arises. What will the authorization authorize him to do?
The president will want an expansive resolution, allowing him maximum flexibility to do what he thinks necessary to accomplish what he determines to be the goals of military action. Skeptics on the right and left will push for a narrower authorization, carefully circumscribing his authority to a limited response to the use of chemical weapons by Syria. Some of the issues that may arise relate to the purpose, scope, and duration of the intervention. Will the authorization state the purposes of the intervention (punishment, deterrence, disabling the regime’s ability to use chemical or other forbidden weapons, protecting civilians, etc.) and then try to limit the authorization to those purposes? How much flexibility will the president have to respond to unexpected developments, like a post-bombing retaliation by Syria against its neighbors or retaliation by terrorist groups or nations like Iran? Will the authorization be sunsetted, or will it be temporally open-ended? Will Congress attempt to select the type or magnitude of force that might be used by, for example, limiting it to air strikes rather than to the introduction of ground troops?
As we’ve already seen in the run-up to this proposed intervention in Syria, the specter of the Bush era will hang over the debate. After 9/11 there was some debate over the substance of the eventual Authorization for the Use of Military Force (AUMF). The Bush administration wanted maximum executive power, including a specific provision authorizing the president to order military force within the United States itself. While that language was ultimately omitted, the final version of the AUMF opted for breadth:
[T]he President is authorized to use all
President Obama announced today that he will seek congressional approval for US military action against Syria in retaliation for the Assad regime’s use of chemical weapons [BUT SEE IMPORTANT UPDATE BELOW]:
President Barack Obama said that the United States “should take military action against Syrian targets” in a Rose Garden address Saturday. However, he said he would seek congressional authorization when federal lawmakers return from recess.
The president appealed for congressional leaders to consider their responsibilities and values in debating U.S. military action in Syria over its alleged chemical weapons use.”Some things are more important than partisan differences or the politics of the moment,” he said. “Today I’m asking Congress to send a message to the world that we are united as one nation.”
In previous posts (e.g. – here and here), I have argued that congressional approval is constitutionally required for anything more than an extremely small attack. In addition, congressional authorization would strengthen the political support for any intervention, and thereby increase the chances of success. So I very much welcome Obama’s decision to seek congressional authorization. This wise decision stands in sharp contrast with the administration’s approach to the Libya intervention in 2011, where Obama violated both the Constitution and the 1973 War Powers Act by failing to secure congressional authorization.
If Obama fails to get congressional authorization, that might damage US credibility. Obama would then have to retreat from his threat that the use of chemical weapons by Assad crosses e a “red line” that would result in military retaliation. But, as Charles Krauthammer suggests, such a setback would be less harmful than a small-scale strike that fails to achieve any real benefit because it is not enough to deter Assad from future atrocities or accomplish any other worthwhile goal.
Republican senators John McCain [...]
1. “Internal” Separation of Powers. Forget whether President Obama went through Congress, or the Security Council, or even our NATO friends. The real question is if the Administration wants to prevent atrocities in Syria, why turn to the Navy? Isn’t this the job of the Atrocities Prevention Board?
2. More Evidence of Evolution.
Barack Obama put the Bush era decisively behind him today in a speech to the United Nations in which he rejected unilateralism in favour of countries working together to tackle problems ranging from the Middle East to Iran and North Korea.
… At the heart of his speech, he promised to work with the UN in a way that Bush had not.
And in 2008: “President-elect Barack Obama on Monday emphasized diplomacy, internationalism and alliances as he laid out a national security outlook far from President George W. Bush’s more unilateral approach..”
3. I do not understand the obsession with chemical weapons. It is a grisly way to kill people. So are machetes. I assume the only reasons the Syrian rebels aren’t using them (if they are not) are technical: they make the hearts and livers taste bad afterwards.
4. The most damaging news from Britain yesterday was that Assad had used such weapons 14 times. If true, it is hard to imagine the deterrent or punitive message a U.S. attack now could serve. First baker’s dozen of gassings come free? For weapons of mass destruction, 13 is a lucky number? [...]
In reaction to Britain’s refusal to take part in military operations against the Syria government, Obama administration officials are saying that the operation they plan is so limited that they won’t need much allied support:
President Barack Obama is prepared to act without Britain, officials said, noting that unlike U.S. involvement in the 2011 military operation in Libya, the options under consideration in Syria are smaller-scale and wouldn’t require a coalition to be effective.
“Here, what’s being contemplated is of such a limited and narrow nature that it’s not as if there’s a similar imperative for bringing in different capabilities from different countries,” a senior administration official said. “We believe it’s important that there be diplomatic support from key allies, and we think we’re getting that.”
If the operation is “limited and narrow” enough, it could obviate not only the need for British support, but also the constitutional requirement of congressional authorization, which only applies to offensive action large-scale enough to qualify as a “war” (setting aside the difficult question of the exact point at which a military engagement becomes big enough to be a “war.”) The problem is that a very small-scale action might not actually be enough to accomplish anything – especially if Assad and his government know in advance that a small-scale attack is all they have to worry about. If Assad believes that using chemical weapons and killing large numbers of civilians are necessary for him to stay in power, he’s unlikely to stop just because we hit him with a minor attack that he knows will soon end. If, on the other hand, Obama intends to launch a larger offensive should the small one fail, then both proper constitutional authorization and allied support would be desirable.
It’s hard for me to say whether [...]
At the Originalism Blog, Prof. Michael Ramsey, a leading academic expert on constitutional war powers, has an excellent post on the implications of the original meaning for the constitutionality of an attack on Syria without congressional authorization (quoting, in part, from a 2011 post he wrote during the debate over the Libya conflict):
Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton. As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval. Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries. Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war….”
The fact that our use of force is limited to air strikes should not matter. Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution). The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801. So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks….
Thus the founding generation thought the Constitution reserved war-initiation power to Congress. How could this be, though, if Congress has only the power
British Prime Minister David Cameron recently lost a vote in the House of Commons that would have authorized British participation in a military strike on Syria:
British MPs have voted to reject possible military action against the Assad regime in Syria to deter the use of chemical weapons. A government motion was defeated by 285 to 272, a majority of 13 votes. Prime Minster David Cameron said it was clear Parliament does not want action and “the government will act accordingly”. It effectively rules out British involvement in any US-led strikes against the Assad regime.
Whatever one thinks of the result, Prime Minister David Cameron at least deserves credit for seeking parliamentary authorization rather than simply making a unilateral executive decision to attack. The British government seems to understand that it is a bad idea to enter a war without a broad political consensus behind the decision. His actions are in sharp contrast to the Obama administration’s unwillingness to seek congressional authorization for its war in Libya or for a possible US military intervention in Syria. This, despite the fact that the need for legislative authorization under Britain’s unwritten constitution is far less clear than it is under Article I of the US Constitution, which gives Congress the exclusive authority to declare war.
From a strictly pragmatic point of view, Britain’s unwillingness to take part in an attack increases the risks for the United States, should President Obama decide to go forward without the support of our closest and most militarily potent ally. The US surely has the firepower needed to launch a strike without the aid of British forces. But their absence increases the burden on the US military and diminishes the international political legitimacy of any US-led operation.
UPDATE: It is not entirely clear whether the British [...]
More than 100 lawmakers, including 18 Democrats, have signed a letter that says President Obama would violate the Constitution by striking Syria without first getting authorization from Congress.
A total of 116 lawmakers had signed the letter as of 6 p.m. Wednesday, highlighting bipartisan interest and growing momentum in ensuring a role for Congress in any decision to use force in Syria.
“Engaging our military in Syria when no direct threat to the United States exists and without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution,” states the letter, spearheaded by Rep. Scott Rigell (R-Va.).
Speaker of the House John Boehner previously sent the president a letter of his own referring to “the exclusive authority of Congressional authorization under Article I of the Constitution.”
Some of the above could be partisan posturing. Most of the signatories are Republicans, and much of the GOP has taken a broader view of presidential power in the past. For example, during the Libya conflict, Speaker Boehner took President Obama to task for violating the War Powers Act of 1973, even though he had previously called for the Act’s repeal and questioned its constitutionality. Neither party has been a model of consistency on these issues.
But the opportunism of some in the GOP does not change the constitutional duty of the President. It also does not change the practical reality that going to war without a broad political consensus reflected by congressional authorization increases the risk of failure.
Congressional opposition may not matter much politically if the president wins a quick victory with few or no [...]
Harvard law professor Jack Goldsmith has an excellent Lawfare post on the constitutionality of a US intervention in Syria undertaken without congressional authorization. While I disagreed with Goldsmith’s position on the Libya intervention two years ago, I think he is mostly right on here:
I have a pretty broad view of presidential power to use military force abroad without congressional authorization. On that view, which is close to the past views of the Office of Legal Counsel, the planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before. There are many reasons why it is a stretch even under OLC precedents. The main ones, as I alluded to a few days ago, are (1) neither U.S. persons nor property are at stake, and no plausible self-defense rationale exists; (2) the main non-self-defense U.S. interest that the Commander in Chief has invoked since the Korean War to justify unilateral uses of force – upholding the integrity of the U.N. Charter – appears… to be disserved rather than served by a military strike in Syria; and (3) a Syria strike would push the legal envelope further even than Kosovo, the outer bound to date of presidential unilateralism, which at least implicated our most important security treaty organization commitments (NATO)….
All of which raises the questions: Why is President Obama going to act unilaterally? Why doesn’t the man who pledged never to use force without congressional authorization except in self-defense call Congress into session to debate and authorize the use of force in Syria? Why doesn’t he heed his own counsel that “[h]istory has shown us time and again . . . that military action is most successful when it is authorized and supported by the Legislative branch,”
The US and its allies are considering a military intervention in Syria in response to the Assad regime’s use of chemical weapons against civilians. If President Obama decides to go in, it will likely be without congressional authorization. Such a step would create serious constitutional problems similar to those arising from the intervention in Libya in 2011.
Article I of the Constitution reserves the power to declare war to Congress alone. Thus, any military action large enough to constitute a war requires congressional authorization. The president can, of course, defend against an actual or imminent enemy attack without waiting for Congress. In that scenario, a state of war would already exist independent of any US action. But the Assad regime has not attacked the US and does not seem likely to do so in the near future. Everything I said in this 2011 National Review symposium essay on the Libya War applies with equal force to a possible strike on Syria:
Article I of the Constitution unequivocally gives Congress, not the president, the “power . . . to declare War.” The Founding Fathers sought to avoid a situation where one man had the power to commit the nation to war by himself. Even Alexander Hamilton — the biggest supporter of sweeping presidential power among the framers of the Constitution — recognized that “the Legislature have a right to make war” and that “it is . . . the duty of the Executive to preserve Peace till war is declared…”
Some small-scale uses of force may not rise to the level of a war and therefore can be undertaken by the president alone under his authority as Commander in Chief of the armed forces. President Reagan’s 1986 airstrike on Libya might be an example, as were Bill Clinton’s 1998 missile
In his speech on drones and the War on Terror today President Obama made many valid points. But he also continued to elide some key issues. On the plus side, Obama correctly emphasized that the use of drones against terrorists is not inherently illegal nor immoral, that drones are often more discriminating and less likely to inflict civilian casualties than other military tactics, and that US citizens can be legitimate targets when they become enemy combatants.
Unfortunately, Obama also continued to dance around the more problematic aspects of his drone policy: who decides whether a particular individual being considered as a potential target is really a member of Al Qaeda and how much evidence is needed to back up such a determination? I emphasized these issues in my recent Senate Judiciary Subcommittee testimony on drones and here. Here are the most relevant parts of Obama’s speech on these questions:
In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes.
Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect
Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.” (Available free and not behind the subscriber wall.) It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.
The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right. There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security. It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones. Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.
Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military. University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary. Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)
Seen within the framework of US law and oversight of overseas use of force operations, this is an important step. A couple of observations. First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50. Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities. It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations. Why this focus on military operations conducted by JSOC?
Counterintuitive as many might find it, [...]