Stirrings in the U.S. Congress on Syria Could Highlight President Obama’s Startling Reversal on Congressional Authorizations

by Julian Ku

There are growing signs of opposition in the U.S. Congress to the Obama Administration’s plans to strike Syria. Over 116 Congressmen (98 Republicans, 18 Democrats) signed a letter rejecting the administration’s (Harold Koh) interpretation of the War Powers Act in the Libya case, and demanding that the President seek Congress’s authorization for any strike. Here is a link to the letter spearheaded by Rep. Scott Rigell of Virginia, a pretty conservative Tea Party-ish Republican.

With polls in the U.S. continuing to show strong opposition to a Syria intervention, it is possible that opposition in Congress could grow in coming days.  And, as Jack Goldsmith notes, a Syria strike would be one of the most brazen exercises of unilateral presidential authority to wage war in the last 100 years at least, since there is not even a hint of a self-defense rationale here, nor a threat to U.S. persons or property.  In the past, the President’s power to unilaterally engage in military actions have almost always been justified (even if untruthfully) as an act to defend U.S. territory, persons, or property, or that of U.S. allies.  Only Libya and Kosovo comes close to Syria in its departure from this pattern of justifications.  The President is going out of his way to avoid the self-defense rationale here, even though it is the only one that has a chance of winning broad public support. And he has given no signs that he will go to Congress.

But given Candidate Obama’s rather unequivocal statements during his campaign, it is  amazing that he is not criticized more for his rather startling reversal on the need for congressional authorization.  Here is a statement he gave the Boston Globe in 2008:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action

Given this statement, shouldn’t he at least have to explain what happened since 2008 to change his view?

http://opiniojuris.org/2013/08/29/stirrings-u-s-congress-syria/

6 Responses

  1. In April of 1999, the House outright rejected a resolution authorizing the president to conduct military air operations and missile strikes against the Federal Republic of Yugoslavia.
    The bar for “most brazen exercise of unilateral presidential authority to wage war” in the last 15 years is pretty high. 

  2. Julian: there are other inconsistencies in pre-Pes. Obama statements and those now, but in this case the White House spokesperson stated that a “legal justification” was that a “significant threat” to U.S. national security was created by the use of chemical weapons. Whether or not that is true, the statement is consistent with his prior remarks.
    The main issue involves international law.  I am pleased to see our UK friends debating the international legal issues right now on CNN.  We should have such a debate in this country.
    If international law supports a strike, the President would have constitutional power to execute that competence on behalf of the United States.
    The UK is apparently focused on “humanitarian” intervention, but as noted over at http://www.ejiltalk , that seems to be a minority view globally.  Other possibilities would include:
    (1) collective self-defense at the request of Turkey,
    (2) a type of collective self-defense with the consent of the legitimate representative of the Syrian people (the “rebers”),
    (3) a NATO authorization,
    (4) a League of Arab States authorization,
    (5) possibly a United for Peace authorization from the GA (?),
    (6) a foolish attack on a U.S. naval vessel by Assad et al.,
    (7) a policy-serving interpretation of UN art. 2(4).
    See my essay in the Pa. J. Int’l L. that you provided a “click-on” to in a prior post.

  3. Julian, I’m teaching Youngstown today, am reminded of Jackson’s quip that “While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself.”

  4. p.s. re: the constitutional law issue(s), I agree with the letter’s point that the armed conflict in Libya in 2011 was an armed conflict and “war,” but have written that presidential authority existed to exercise a competence of the U.S. under the U.N. Charter and a relevant U.N. S.C. resolution and that exercise of such a competence was not violative of the War Powers Resolution. (http://ssrn.com/abstract=2061835 ).  Therefore, I disagree with the statement that “[e]ngaging our military … when no direct threat to the United States exists and without congressional authorization would violate the separation of powers.”  Also, a surgical strike by U.S. military on targets in Syria would be an act of war and trigger application of the laws of war no matter how short that war might be or whether the international armed conflict that ensues is between a state (the U.S.) and a state controlled by the Assad regime or a belligerent-Assad-regime.
    Will more than 116 demand more than mere consultation? 

  5. It seems that a combination of (1), (2), and (7) above are the best type of set of legal claims, but the Obama Administration would have to shift from a mere punitive strike-type of focus re: use of chemical weapons as such to forms of collective self-defense and a textually sound and policy-serving interpretation of UN Art. 2(4) in the special context of an ongoing civil war in Syria and significant outside recognition of the “rebels” as the legitimate representative of the Syrian people (so that use of force is not actually “against” the “territorial integrity” of Syria, “against” the “political independence” of the Syrian people, and is, on balance, serving of peace, security, self-determination of people, and human rights as well as use of force in the common interest.
    Unilateral use of armed force in another state (without UN SC authorization or NATO or the League of Arab States authorization a law UN art. 52) merely to punish or send a message regarding illegal use of chemical weapons has no legal traction.   Further, it has no traction in terms of constitutional war powers.

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