Syria Insta-Symposium: The President’s Wise Decision

by Deborah Pearlstein

As an adherent of the view that the Constitution requires congressional approval before the President can use military force (other than in certain circumstances of national self defense), I think the President’s decision to seek authorization from Congress was legally required. While Marty is right that presidential practice has at times been otherwise, I don’t think that practice should be understood to alter the otherwise clear import of the Constitution in generally requiring the engagement of more than one branch of government before the United States uses force. Presidential practice past, however, has been relied on by many presidents to justify their circumvention of the requirement to go to Congress. And Congress has, often to its shame, shirked its responsibility to engage more. That President Obama did not follow this well trodden path is thus to his great credit. In this respect, I agree with the basic premise of Peter’s post: the decision was remarkable.

I don’t think I agree, however, with Peter’s expressed concern, which seems to be that because the requirement of getting congressional authorization makes it less likely the U.S. will use force “in these kinds of situations,” this is a bad development for “the global system generally.” Of course, making it hard for the U.S. government to go to war was precisely why the Constitution’s framers thought it wise to bifurcate the war-making power between the branches (as John Hart Ely, among others, eloquently demonstrated). The instinct wasn’t complicated: war is brutal and costly and should be presumed to be rarely in the national interest. But let’s set aside that history for the time being as, one might reasonably argue, the conclusion that emerged from a time in which the United States was young and weak, and in which the world was a categorically different place from the world we live in today. What are “kinds of situations” like these that Peter thinks it should be less difficult than that for the U.S. to use force? Some of the examples he cites – Reagan in Lebanon, Clinton in Somalia – don’t seem to me like great illustrations of good things coming to the global system from unilateral presidential intervention. Other examples one might recall – Reagan in Libya, Clinton in Sudan and Afghanistan – fall I think more evidently into the category of national self defense – a category of justification for unilateral presidential action I do not see as touched at all by President Obama’s decision to go to Congress here.

A better, and much more challenging, example is something like NATO intervention in Kosovo – where the humanitarian situation was horrifying, rapidly worsening, and the UN Security Council unwilling to act. There, the Clinton Administration acted without either advance congressional approval or Security Council authority – an agonizing and self-conscious decision to violate the prevailing law for the purpose of accomplishing what it concluded was a more important end: preventing an ongoing massacre. I found it a very difficult question but ultimately agreed with intervention then. Not unlike Robert Cover’s judges of the slavery era south – torn between a clear legal and professional duty to enforce a law they believed led to a morally abhorrent result – anyone who has ever contemplated civil disobedience recognizes that circumstances may arise in which the profound value of protecting and observing the rule of law comes into conflict with another value, also profound, the protection of which one might reasonably expect to be served by the law’s violation.

But for reasons I alluded to in an earlier post, it’s not at all clear to me that the proposed U.S. use of force in Syria is particularly aimed at the alleviation of human suffering. The President’s stated purposes here – focused largely on accountability for Assad’s past action and deterrence of any future use – coupled with his stated commitment to keep the use of force short and minimal, make it hard to credit the idea that such a U.S. use of force would have the effect (or has the purpose) of ending the humanitarian disaster there (now underway for 2+ years). On the contrary, a limited use of force may provoke retaliation against Syrians or other countries in the region; Assad seemingly has no compunction about using any means at his disposal to preserve power. At the other end of the spectrum – if U.S. intervention causes the regime to collapse, it’s hard to see how we don’t face a greater danger of the dispersal of chemical weapons in the regime’s control, as warring factions fight for power in post-Assad Syria. If we could just destroy the weapons themselves, that might be one thing. But blowing up chemical weapons of course risks a far greater disaster than the one already apparent on the ground. One could go on.

For now, the point is twofold: (1) There’ve been plenty of past U.S. interventions on unilateral presidential authority that have not gone well, for the United States or the global system. (2) There are plenty of reasons to fear this is one of those instances that also will not go well – such that it makes it at a minimum worth debating in a full and democratic way (i.e. with Congress), whether or not force in Syria is the right next step to take.

http://opiniojuris.org/2013/09/01/presidents-wise-decision/

2 Responses

  1. Thanks Deborah to you and your colleagues for this symposium, I hope the upcoming Congressional debate and public conversation will be as deep and thoughtful as the OJ posts and those on Lawfare.
    Like you I welcome the President’s decision to seek Congressional approval.  Among the benefits is that debate  will sharpen the arguments for and against using force and possibly raise alternative approaches that are worthy of consideration, which hopefully will diminish the risk of taking action that will not end well for our country or Syrian civilians. 
     

  2. Excellent point – that the relevant considerations aren’t the objective attributes of the proposed military action but rather its likely consequences and character. While the fight is apples-to-apples with some past humanitarian efforts, we’re talking about a partially destabilized Russian client state in the Middle East — this apple tree is in a minefield.

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