So Was Congress Thinking of Authorizing Force in Syria?

As members of Congress begin calling more insistently for some unspecified form of U.S. military intervention against the regime of Syrian president Bashar al-Assad, I admit to suffering the same doubt as Julian. What exactly is the legal theory here – under domestic and international law – that would authorize the United States to use force in Syria?

There was, once upon a time, this idea in the Constitution that only Congress had the authority to declare war. While declarations of war per se have long since fallen out of legislative favor, Congress has still from time to time stirred itself to authorize the President to use military force abroad – giving the whole going-to-war business some meaningful democratic imprimatur. But Congress hasn’t authorized the use of force in Syria.

The go-to use-of-force authority for the post-9/11 wars – the 2001 Authorization for Use of Military Force – doesn’t plausibly extend to the use of force against Assad’s government. The 2001 AUMF authorized the President to use force against the Taliban, Al Qaeda and “associated forces.” Assad is none of the above. There have been reports that some of the rebel groups competing to overthrow the Assad regime are sympathetic (at the least) with the radical Islamist aims of Al Qaeda. Even if (a big if) those groups could be counted as associates of the Al Qaeda that attacked this country on 9/11, those groups in this conflict are also fighting against Assad. In other words, if we intervened in Syria against Assad, we would all in some sense be on the same side. That can’t be what the Congress that passed the AUMF had in mind.

Maybe, then, Congress is imagining the President could take action under his own power under Article II of the Constitution. After all, this President intervened in Libya without prior congressional authorization. That, too, of course had its problems. It was also thought, once upon a time, the President’s power to use force without getting Congress’ sign off first was quite limited. The Constitution’s framers believed, and the Supreme Court agreed, that the President must have at least some inherent constitutional power to, as they put it, “repel sudden attacks.” There has been no such attack by Syria against the United States here. True enough, the White House was legally untroubled by the absence of any attack against the United States by Libya. Embracing the far more problematic contemporary reading of inherent presidential power, the Obama Justice Department said then that the President could use military force on his own so long as it was in the national interest, and so long as the contemplated force didn’t actually amount to “war.” At least for 60 days. After that, under the statutory War Powers Resolution, the President has to get congressional approval for engaging U.S. forces in any kind of “hostilities” – a level of force even the Administration recognized could fall short of all-out war. In Libya, the Administration was able to argue its continued military engagement beyond the 60-day clock didn’t rise to the level of “hostilities” requiring authorization in part because our international allies did much of the actual fighting themselves. Is that in the cards here?

This brings us to the other small set of problems around Syrian intervention: international law. The UN Charter says that one state can use force against another in two circumstances: (1) if the UN Security Council authorizes it, or (2) in national or collective self-defense if an armed attack occurs, until the Security Council has time to act. In Libya, we had a UN Security Council Resolution authorizing military intervention. There is no such resolution here, and at the moment, slim prospect of obtaining one given Russia’s opposition to intervention. Is this plausibly self-defense, for example, collective self-defense on behalf of our NATO ally Turkey? Perhaps. Recent months have seen scattered reports of shelling across the Syria-Turkey border. But there is no public indication thus far that Syria has used chemical weapons against Turkey, or evidence that it has plans to do so, or even that it is threatening conventional attacks. In any case, without support from NATO itself, it is difficult to see the United States prevailing in any claim that it is acting with such justification. Is NATO actually on board?

Finally, and even setting aside the still contested international legality of humanitarian intervention in the absence of a Security Council resolution, it’s not at all yet clear that the limited use of chemical weapons seemingly at issue thus far materially changes the already horrifying humanitarian disaster that has been Syria for the past nearly two years. It is here the term “weapons of mass destruction” can hide all kinds of important detail. Of course the use of chemical weapons is horrible, of course it’s illegal. But not every use of a chemical agent, or even a biological one, harbors the potential to cause actual mass destruction. Both in assessing the case for humanitarian intervention, and the case that might justify an anticipatory use of force in self defense, it matters a lot what’s actually going on. The Obama Administration wants to wait and find out the details? For the sake of the law along with very much else, sounds like a good idea to me.