Syria Insta-Symposium: Marty Lederman Part I–The Constitution, the Charter, and Their Intersection

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002]

Most of the participants in this Insta-Symposium, and in earlier OJ posts, have understandably focused their attention on the question of whether a U.S. military strike on Syria would violate the U.N. Charter.  I’ll address that question in a subsequent post, in the context of some remarks on the forthcoming congressional debate.  But before I do so, Peter Spiro’s recent post about U.S. constitutional law deserves a response, for he has raised an important and serious charge.

According to Peter, President Obama’s decision to seek congressional authorization for the use of force is a “watershed”—indeed, a “surrender” of constitutional authority—because “[a]t no point in the last half century at least has a president requested advance congressional authorization for anything less than the full-scale use of force.”  Peter thus agrees with David Rothkopf’s accusation that “Obama has reversed decades of precedent regarding the nature of presidential war powers.”

I don’t think that’s a fair characterization.  Or, to be more specific, although Peter is correct that the President’s turn to Congress is in one respect without recent precedent, a unilateral use of force by the President in Syria also would have been unprecedented in important respects, and probably more corrosive to the modern balance of war powers between the political branches.  To understand why this is so, some background is in order.  What follows is a very simplified account of a very complex dynamic:

In the past two generations, there have been three principal schools of thought on the question of the President’s power to initiate the use of force unilaterally, i.e., without congressional authorization:

a.  The traditional view, perhaps best articulated in Chapter One of John Hart Ely’s War and Responsibility, is that except in a small category of cases where the President does not have time to wait for Congress before acting to interdict an attack on the United States, the President must always obtain ex ante congressional authorization, for any use of military force abroad.  That view has numerous adherents, and a rich historical pedigree.  But whatever its merits, it has not carried the day for many decades in terms of U.S. practice.

b.  At the other extreme is the view articulated at pages 7-9 of the October 2003 OLC opinion on war in Iraq, signed by Jay Bybee (which was based upon earlier memos written by his Deputy, John Yoo).  The Bybee/Yoo position is that there are virtually no limits whatsoever:  The President can take the Nation into full-fledged, extended war without congressional approval, as President Truman did in Korea, as long as he does so in order to advance the “national security interests of the United States.”  With the possible exception of Korea itself, this theory has never reflected U.S. practice.  (Indeed, even before that OLC opinion was issued, President Bush sought and obtained congressional authorization for the war in Iraq.)  Notably, it was even rejected by William Rehnquist when he was head of OLC in 1970 (see the opinion beginning at page 321 here).

c.  Between these two categorical views is what I like to call the Clinton/Obama “third way”—a theory that has in effect governed, or at least described, U.S. practice for the past several decades.  It is best articulated in Walter Dellinger’s OLC opinions on Haiti and Bosnia, and in Caroline Krass’s 2011 OLC opinion on Libya.  The gist of this middle-ground view (this is my characterization of it) is that the President can act unilaterally if two conditions are met:  (i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the Libya opinion).

Largely for reasons explained by my colleague and Dean, Bill Treanor, I am partial to this “third way,” at least in contrast to the two more categorical views described above.  (I do not subscribe to every detail of the Dellinger and Krass opinions—in particular, I’m wary of resort to the interest in “regional stability,” which has never been used as a stand-alone justification for unilateral executive action—but I concur in the broad outlines sketched out above.)  Regardless of whether Dean Treanor and I—and Presidents Clinton and Obama—are right or wrong about that, however, what’s important for present purposes is that U.S. practice after World War II (with the possible exception of Korea and Kosovo) reflects, and is consistent with, this “third way” view:  When a prolonged campaign has been anticipated, with great risk to U.S. blood and treasure, congressional authorization has been necessary—and has, in fact been secured (think Vietnam, both Gulf Wars, and the conflict with al Qaeda).  Otherwise, the President has considered himself free to act unilaterally, in support of important interests that have historically justified such unilateral action—subject, however, to any statutory limitations, including the time limits imposed by the War Powers Resolution.  See, e.g., Libya (twice, 1986 and 2011), Panama (1989), Somalia (1992), Haiti (twice, 1994 and 2004), and Bosnia (1995).

Assuming this “third way” view is correct—or, in any event, that it establishes the relevant historical baseline against which to measure the case of Syria—Peter Spiro makes a valid point about the second of the two criteria.  As he puts it, “[a]t no point in the last half century . . . has a president requested advance congressional authorization for anything less than the full-scale use of force.”

But that does not mean that the President’s turn to Congress yesterday is a “watershed,” for Peter overlooks the important first condition.  All of the examples of unilateral presidential use of force since 1986 that he implicitly invokes (with the possible exception of Kosovo, discussed below) have been in the service of significant national interests that have historically supported such unilateral actions—such as self-defense, protection of U.S. nationals, and/or support of U.N. peacekeeping or other Security Council-approved endeavors and mandates (e.g., Bosnia and Libya).

The Syria operation, however, would have had no significant precedent in unilateral executive practice; it would not have been been supported by one of those historically sufficient national interests.  That’s not to say that that operation would not be in the service of a very important national interest.  For almost a century the U.S. has worked assiduously, with many other nations, to eliminate the scourge of chemical weapons.  If Syria’s use of such weapons were to remain unaddressed, that might seriously compromise the international community’s hard-won success in establishing the norm that such weapons are categorically forbidden, and should not even be contemplated as instruments of war.  As Max Fisher has written, “it’s about every war that comes after, about what kind of warfare the world is willing to allow, about preserving the small but crucial gains we’ve made over the last century in constraining warfare in its most terrible forms.”

Preventing that degradation of the strong international norm against use of chemical weapons is, indeed, an important national (and international) interest of the first order.  (To be clear:  I am not remotely qualified to opine on whether and to what extent the contemplated action would advance that interest—my point is only that the interest is undoubtedly an important one.)  And perhaps that should be enough to justify discrete, unilateral presidential action short of “war in the constitutional sense.”  But if so, it would nevertheless be an unprecedented basis for unilateral executive action, and it would open up a whole new category of uses of force that Presidents might order without congressional approval, even where such actions could have profound, longstanding consequences:  Most obviously, think, for example, of possible strikes on Iran in order to degrade its nuclear capabilities.  Is Peter so sure that that’s the sort of thing that a President should be able to do without obtaining congressional approval?  At a minimum, it’s a profound, and heretofore unresolved, question, one that any President should be wary of raising.

But there’s yet another reason why unilateral action in Syria would have been especially troubling—a reason that hasn’t received the attention it warrants in recent days.  As I discuss in my next post, I agree with the majority of OJ commentators that the Syrian operation would violate Article 2(4) of the U.N. Charter.  Indeed, it’s not really a close question.  But this is not merely a point about international law.  The Charter is a treaty of the United States.  It is therefore the “supreme Law” of the land under Article VI of the Constitution, and the President has a constitutional obligation (under Article II) to take care that it is faithfully executed.  Unless and until Congress passes a “later in time” statute, under what authority can the President deliberately put the U.S. in breach of the Charter?  That is to say:  Whatever one’s views might be on the scope of the President’s authority to unilaterally use force abroad—whether you subscribe to the traditional view, the Bybee/Yoo view, or the Clinton/Obama “third way” (or any variant in between)—what is the possible justification for a unilateral presidential decision to violate a treaty that is binding as a matter of domestic law?

This is, I think, the most troubling thing about the 1999 Kosovo precedent.  The Clinton Administration virtually conceded that the operation was in breach of the Charter.  Of course, as a matter of domestic law, Congress can pass a statute authorizing violation of the Nation’s treaty obligation.  And OLC concluded that Congress effectively authorized the Kosovo operation eight weeks after it began.  But why did President Clinton have the authority, without congressional authorization, to order the operation, and to breach Article 2(4), during those first eight weeks?  The notion that the President may unilaterally cause the U.S. to breach a treaty raises deep and unresolved questions of constitutional law:  Just as Presidents Obama and Clinton were correct to assume that their unilateral uses of force (in Kosovo and Libya, respectively) were subject to the constraints of the War Powers Resolution, so, too, should the President act within the constraints of binding treaty obligations.  The Clinton Administration never did address this problem in connection with Kosovo.  (I should note that in 1989, OLC reasoned that because Article 2(4) of the Charter is non-self-executing, in the sense that it does not establish a rule for court adjudication, it is “not legally binding on the political branches,” and thus “as a matter of domestic law, the Executive has the power to authorize actions inconsistent with Article 2(4) of the U.N. Charter.”  13 Op. O.L.C. 163, 179.  In my view, this understanding of the effect of a “non-self-executing” treaty is importantly mistaken—but that’s a much broader topic, for another day.  I am not aware of any indication that the Clinton Administration adopted this position.)

For these reasons, I think that President Obama’s decision to ask Congress for authorization for the use of force in Syria is to be commended, and welcomed.  Moreover, I agree with Jack Goldsmith that this decision will not result in any “surrender” of existing executive authority:  When in the future the two “third way” criteria for unilateral action articulated in the Haiti, Bosnia and Libya OLC opinions are satisfied, and where the use of force does not violate the Charter, Presidents will certainly continue to assert the power to act unilaterally, subject to statutory and international law constraints.  But if and when a President wishes to act for a reason that has not previously been the basis for unilateral action (such as to degrade another nation’s ability to use certain weapons), and/or in a manner that violates a U.S. treaty obligation, past practice will support obtaining congressional authorization, even as the question of the President’s unilateral authority in such circumstances remains untested and unresolved.

So much for the constitutional question.  The President’s decision yesterday thankfully ensured that it will not need to be resolved—at least for now.  But the Charter problem remains.  What if Congress does approve the Authorization for Use of Force that the President has recommended?  I will address that question in my next post.