That Syria War Power Debate, Continued

Cross-posted at Balkinization

If, as I argued earlier this week, the 2001 AUMF passed by Congress cannot be read to authorize the growing set of U.S. military actions against Syrian and Iranian forces in Syria, does the President’s Article II power standing alone support these strikes? The best articulated argument I’ve seen that the President has the Article II power to attack Syrian aircraft (or Iranian drones or any non-ISIS force in Syria) in the interest of defending U.S.-allied Syrian government rebels goes something like this. The President surely has Article II authority to act in defense of U.S. facilities and troops overseas without first waiting for congressional authorization, a necessary extension of the President’s power (on which there is near uniform agreement) to “repel sudden attacks.” As relevant here, this authority should be understood to extend to the defense of certain organized third parties (whether a state like Britain or our allied non-state Syrian Democratic Forces) operating (as Bobby Chesney puts it) “in close coordination with the U.S. military in a combat setting.” In such a situation, I take the idea to be, our interests are closely enough aligned and our military forces closely enough entangled, that an attack (or threatened attack) on a third party ally is effectively the same as an attack on us.

This ‘third party self-defense’ theory of the scope of Article II power is in one sense quite a bit narrower the currently prevailing position of the Justice Department Office of Legal Counsel – which, under President Obama, took the view that the President has constitutional authority to use military force on his own so long as an important U.S. interest was at stake, and so long as the quantum or nature of contemplated force didn’t actually amount to “war” within the meaning of the Constitution’s “declare war” clause. Under this OLC view – based in part on OLC’s assessment of post-World War II presidential practice – one need not develop any specialized theory of third party self-defense to justify the use of executive power here; the current President could surely assert one of several U.S. concerns in Syria as the important interest at stake (say, protecting the interest of regional stability), and so long as the strikes were limited in scope and duration (i.e. less than “war”), all of these actions could be said to fall within the scope of Article II, whether defense of battlefield allies was among the expressly named interests or not.

Yet there are at least three ways in which this ‘third party defense’ notion may be said to go beyond even the broad 2011 OLC conception of presidential power: (1) I am not aware of any previous practice in which the President has asserted the particular national interest of defending battlefield allies as such as a justification for authorizing the use of force abroad. Now it is surely one of the difficulties with the 2011 OLC opinion that it leaves so open-ended the question of what counts as an national interest sufficiently important for the President to use force, but if we are to take seriously the notion that past practice matters here, it would seem important to identify some at least analogous illustration on which to rely. (2) To the extent past examples of “important” national interests matter, the case for using force to protect a zone in a foreign country within which our own military might train opposition forces strikes me as vastly less impressive than the interest in, say, ridding the world of the scourge of chemical weapons. Indeed, the “de-confliction” zone we are now using force to protect is geographically just over the border from a country (Iraq) in which we have every right (thanks to that nation’s consent) to be operating militarily and, presumably, training anti-ISIL forces all we like. Above all, (3) in the 2011 Libya strike (and almost all previous post-World War II operations), unilateral executive uses of force abroad were taken in concert with UN authorities. For reasons I alluded to briefly in my previous post, both our downing of the Syrian jet and the recent U.S. strikes to preserve its non-state allies’ right to operate in the “de-confliction” zone appear to be in violation of the UN Charter (a treaty we are obligated to observe as supreme law of the land under our own Constitution’s Article VI). Whether one considers that an Article II problem, an Article VI problem, or simply a violation of international law – the United States’ legal position here is as precarious as it gets.