September 10, 2013
The President wanted to attack Syria. He may still want to, or may have changed his mind, or may be dissuaded, or a diplomatic solution may be found, but the prospect of military action has raised an issue, hardly for the first time, about presidential war powers. No one doubts that Mr. Obama could have launched an attack on Syria without consulting Congress. He’s even been criticized for not doing so. However, perhaps motivated less by fidelity to the Constitution than by political calculation, he belatedly asked Congress to concur in his plan.
Merely asking Congress for support (and cover), and doing so only when it suits, isn’t exactly what the Constitution contemplates: "The Congress shall have Power . . . To declare War . . . ."[78] There is no suggestion that this is a divided or qualified power. "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . ."[79] However, that says nothing about commencing hostilities.
One argument for bypassing Congress is that a military operation against Syria would not be a "war." That doesn’t pass the laugh test: firing missiles is an act of war, Secretary Kerry’s claim to the contrary notwithstanding. Indeed, when convenient, we are told that we are at war, permanently, though Congress hasn’t declared one since 1942.
There is the humanitarian theory: we cannot stand by while people are gassed. That justification (which assumes that the stories we have been told are accurate) simply overrides any constitutional quibbles: the President must act, so he has the right to act. However, even ignoring the constitutional issue, there is the problem that outrages occur all the time; what is our standard for intervention? This is an area where decisions should be taken internationally, but paralysis is built into the UN structure, and humanitarian warfare in the Middle East doesn’t quite fit the NATO model. If the UN were to act, American participation in any military operation would, in theory, be subject to congressional approval under the United Nations Participation Act of 1945.[80]
However, that apparently is a nullity because the US never has entered into the agreement with the UN which is required to trigger the Act. Even if it had come into play, it might have been ignored; we entered the Korean War under the "aegis" of the UN, but without any action by Congress.
However, that apparently is a nullity because the US never has entered into the agreement with the UN which is required to trigger the Act. Even if it had come into play, it might have been ignored; we entered the Korean War under the "aegis" of the UN, but without any action by Congress.
Another argument is that there may be situations in which an immediate response is required, and there is no time for consultation with Congress. A variation cites the remark made during the Constitutional Convention that assigning to Congress the power to "declare" war rather than to "make" war would leave the president with "the power to repel sudden attacks."[81] The immediate-response argument has merit, and perhaps the "sudden attacks" discussion supports finding an implied power, but how often do such emergencies arise? None of our recent military adventures, with the possible exception of the early stages of the operation in Afghanistan, have fallen within this exception, and Syria does not.
It can be argued that, in effect, war has been declared many times, through congressional resolutions. However, resolutions can be mere exercises in face-saving, taken with the knowledge that the president would proceed anyway; the 1991 Gulf War provides an example. In addition, resolutions can be vague and open-ended; how many times have courts been required to decide what the Authorization for Use of Military Force against Iraq means?
The resolutions in this case demonstrate the tendency to say too much. The resolution proposed by the President asks for authority
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; . . .[82]
The President’s draft resolution recites that
in the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, Congress found that Syria's acquisition of weapons of mass destruction threatens the security of the Middle East and the national security interests of the United States.
The Senate Foreign Relations Committee has taken a step further down the path of handing over power to the president. The recitals in its draft resolution on Syria include the reference to the 2003 Act, and add this:
"Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . ."[83]
Although given that recital, any limitations on the President’s power under the proposed resolution would be a contradiction and an exercise in futility, the committee draft pretends to impose some: force is to be used "in a limited and tailored manner against legitimate military targets in Syria." Before resorting to force the President must certify that "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," and there must be "a military plan to achieve the specific goals. . . ." We might be excused for thinking that the committee members who voted for the resolution are not up to the task.
The reason that presidents no longer follow the Constitution is that Congress already has abandoned its right to demand that they do so. In effect, it has conspired in a silent Amendment. The War Powers Resolution of 1973 [84] was a recognition of that, but it also was an attempt to set some limits on presidential action. Presidents have ignored the limits. Congress also has allowed the executive to be the repository of secrets, and the sole judge of who may share them, so even when Congress is consulted, it may not be able to make an intelligent decision.
We have developed a national attitude which tolerates, and often encourages, military solutions to any perceived, or manufactured, crisis abroad, and which assumes for us a world-policeman stance. National Security Advisor Susan Rice set forth that position: if we do not "punish" Assad, it "could indicate the United States is not prepared to use the full range of tools necessary to keep our country safe." Safe from Syria? No, from others who will think we aren’t much of a policeman: "Rejecting limited military action that President Obama strongly supports would raise questions around the world about whether the United States is truly prepared to use the full range of its power." We mustn’t encourage bad guys: "Leaders in Tehran must know the United States means what we say. . . . If we do not respond when Iran’s close ally, Syria, uses weapons of mass destruction, what message does that send to Iran?"[85]
Some of Rice’s hyperbole was prompted by Obama’s threat to use force, followed by his decision to ask for congressional approval. In other words, he’s gone out on a limb, from which Congress must rescue him by authorizing an attack. However, the insistence that we use "the full range of our power" also is part of a pattern; we have adopted what Andrew Bacevich terms the new American militarism, which "manifests itself through an increased propensity to use force, leading, in effect, to the normalization of war. . . . The American public's ready acceptance of the prospect of war without foreseeable end and of a policy that abandons even the pretense of the United States fighting defensively or viewing war as a last resort shows clearly how far the process of militarization has advanced."[86]
The nation has pressing domestic problems, such as unemployment, poverty, the weakness of the economy, the capture of the polity by the wealthy, and the breakdown of responsive and responsible government. When we can govern ourselves effectively and justly, then perhaps we legitimately can consider whether and how to manage other countries.
Syria and humanitarian intervention are not the only situations which pose war-power issues; drone assassinations, indefinite detention, and domestic surveillance also require an inquiry into the extent of and justification for presidential authority. At some point, Congress needs to step back, look at the whole picture, reassert its constitutional rights, limit the situations in which the president can act on his sole initiative, and set out rules for those cases.
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78. Article I, Section 8.79. Article II, Section 2
80. 22 U.S.C. § 287d
81. See Records of the Federal Convention:
http://press-pubs.uchicago.edu/founders/documents/a1_8_11s4.html
82. https://s3.amazonaws.com/s3.documentcloud.org/documents/782228/aumfresolutiontext.pdf 83. http://www.foreign.senate.gov/imo/media/doc/DAV13973.pdf
84. 5 U.S.C. § § 1541-48
85. http://www.washingtonpost.com/politics/obama-adviser-susan-rice-pushes-presidents-case-for-strike-against-syria/2013/09/09/92edd2e4-196f-11e3-a628-7e6dde8f889d_story.html?hpid=z9
86. Bacevich, The New American Militarism: How Americans Are Seduced by War, pp. 18-19
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