More on the Syria AUMF

In about the time it took the ink to dry on Peter and Jack Goldsmith’s helpful analyses of the import of the draft Senate resolution to authorize President Obama to use force in Syria, the Senate Foreign Relations Committee approved it, by a close vote of 10-7. The bill now goes to the full Senate for debate and vote; Rand Paul is evidently threatening to filibuster. Then of course the House yet needs to debate and pass its version of an authorization bill. So much for the notion that the Senate is institutionally incapable of moving with dispatch.

A few points I want to add and/or emphasize on the draft AUMF, in no particular order.

(1) The Senate version is narrower than the Administration’s initial proposal principally insofar as it limits the use of force to targets in Syria. (The Administration version would’ve allowed targeting sites anywhere in the world so long as they were legitimate targets “in connection with” the use of chemical weapons in the Syrian conflict. But to be clear, it does not prohibit the use of ground troops – only “combat troops,” a description that leaves room for rescue operations, as well as training and intelligence missions of various kinds. It also imposes no restriction on the President’s existing, substantial, and apparently already-in-use power to order various U.S. assets to the region under, for example, statutory covert action authority. On the effect of the time limit contained in the draft AUMF, I agree with Jack; the statute addresses the limits of this particular statutory authorization, it does not impose any limits on what inherent presidential power may exist under Article II of the Constitution to use force all independent of congressional authority. (Recall, pretty much everyone, me included, thinks the President has at least some inherent Art. II power to use force. Large questions remain over just how much constitutional power this is. I don’t think the non-binding and hortatory “whereas” clauses at the beginning of the operative language of the AUMF do much work one way or another in shedding light in this regard.)

(2) The Senate version, like the Administration’s proposal, is unfortunately obscure about what exactly it means “weapons of mass destruction.” The definition of the term is no small matter. The Senate would authorize the President to use military force “he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria,” to deter Syria’s use of such weapons, and to degrade Syria’s capacity to use those weapons in the future. What are “weapons of mass destruction”? The UN definition, adopted not long after World War II and sustained through various committee structures and resolutions since, limits the category to chemical, biological, nuclear, and radiological weapons. Under some U.S. law, for example, U.S. criminal laws prohibiting the use of WMDs, the term is defined much more broadly to include pretty much any explosive device. In this context, I suspect (and hope) Congress means to limit its authorization to the UN version of WMDs. For a host of reasons, it would be helpful if it made that point clear.

(3) There is one other potentially important limit/difference between the Administration’s proposed authorization to use force and the version the Senate Foreign Relations Committee just passed. Among the Senate version’s requirements: “Before exercising the authority granted…, the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that… the United States has used all appropriate diplomatic and other peaceful means to prevent the deployment and use of weapons of mass destruction in Syria.” This strikes me as a potentially useful requirement, that could be strengthened further if the Senate were serious. At the moment, it only requires presidential certification that he has used all “appropriate” non-force means. That leaves the President with substantial discretion. The Senate could actually require some action – including economic or aid measures – the administration has not yet taken. This would not preclude military force. But it would put another, even minor, hurdle, along the path to what is starting to feel like a bit of a dash to action.