Syria Insta-Symposium: Charles Kels–At the Intersection of Legal Regimes

[Charles Kels is a major in the U.S. Air Force Reserve and an attorney for the Department of Homeland Security. His views do not reflect those of the Department of Homeland Security, Air Force or Defense.]

From a U.S. perspective, the core issue with a Syrian intervention is the interplay between international and constitutional law. Specifically, to what extent does satisfying one lessen the need to comply with the other when it comes to initiating hostilities?

Ever since President Truman bypassed Congress in favor of the UN Security Council (UNSC) to launch the Korean War, there has been a growing body of precedent to suggest that these concurrent paths to the lawful use of force represent an either-or proposition. Cases in which the President acts with the express authorization of both Congress and the UNSC, such as the Persian Gulf War, are an anomaly to say the least.

Recent history indicates that the imprimatur of the UNSC strengthens the President’s hand to act unilaterally in committing U.S. troops abroad. The Office of Legal Counsel (OLC) opinion on the authority to employ force in Libya explicitly cited “the longstanding U.S. commitment to maintaining the credibility” of the UNSC as an important national interest justifying the President’s exercise of his Article II powers.

On the flip side, securing congressional approval seems to obviate the need, at least politically, to wait on the UNSC’s blessing. Presidents can feel relatively secure that the U.S. public will not hold the failure to secure a resolution against them, especially when the overseers in Congress are on the hook by having voted to authorize force.

What if neither hurdle has been definitively cleared in the context of a humanitarian intervention? You get Kosovo, which ostensibly derived some sense of legality from its NATO roots, but has otherwise been deemed “illegal but legitimate.” The historian Michael Ignatieff has poignantly documented how the resulting lack of political will undermined the humanitarian aims of the campaign. NATO’s lofty moral language belied its strategy of minimum risk.

With his announcement that he will seek authorization from Congress for action against Syria, President Obama has thankfully pulled us back from the legal precipice of finding out what happens when there are all the elements of Kosovo, minus the auspices of NATO. He rightfully recognized the importance of making Congress go on the record with its preferences. Although Congress can be a fair-weather fan of military campaigns even when it has authorized them, the accountability of a formal vote makes it infinitely more likely that legislators will engage in partnership rather than recriminations if and when things go awry.

As such, I am inclined to disagree with Professor Spiro that the President’s announcement constitutes a “constitutional surrender.” If President Obama has indeed set a precedent with his decision, I believe it is something much less consequential than requiring future commanders-in-chief to seek congressional authorization for any limited military strike. Rather, it stands for the proposition that when American lives and property are not immediately at stake, and when there is no straight-face self-defense argument under Article 51 of the UN Charter, and when the UNSC has not authorized force, and when there’s no NATO mission to latch onto, the President is on much firmer ground going to Congress. Far from enervating the President and his successors, I tend to agree with Professor Goldsmith that this course of action actually strengthens the administration and the U.S. cause in the event of a military intervention.

One need not be an Article I absolutist to query what actual limits to presidential war-making powers would have been left if the President had gone it alone on Syria. Indeed, to borrow the terminology from Professor Lederman, I think it’s fair to say that unilateral presidential action on Syria would have been much closer to the Bybee/Yoo position, although dressed in the language of the Clinton/Obama “third way.” Seemingly, the only remaining restraint on executive initiation of hostilities would have concerned the expected breadth of the conflict, and whether it counts as “full-scale.” As a stand-alone doctrine, there’s not much there to salvage a meaningful remnant of Congress’s war powers—as I try to flesh out below.

But even in deciding to seek authorization, the President presented intervention in Syria as a fait accompli, reiterating his belief in the “authority to carry out this military action without specific congressional authorization.” The key to understanding what he likely meant is the OLC opinion on Libya, which argued that the limited “nature, scope, and duration” of the anticipated operations fell short of the definition of “war” that necessitates congressional authorization. Central to this analysis was the relative exposure, or lack thereof, of U.S. military personnel to enemy fire. To oversimplify, as long as ground troops are ruled out, and the risk of U.S. casualties is nil, the deployment doesn’t count under the Constitution’s declaration of war clause.

There are two major problems with linking the legal prerequisites for war to the physical impunity of its initiators. First, it implies that war is predictable. But a policy of minimalism can actually whet the enemy’s appetite to widen the conflict. War takes at least two sides, and both get a say as to how it is waged. A “shot across the bow” can quickly become a dogfight. While the President could theoretically go back to Congress for authorization if the scope of the mission proves wider than anticipated, that is an unlikely and daunting scenario once things have started to go bad.

The risk theorist Nassim Taleb has written that professional soldiers embrace uncertainty because it is endemic to war. The mission rarely goes as planned, and the aftermath almost never does. Libya is a case in point. It was bloodless for America until our consulate was overrun the following year. Then it wasn’t.

Second, when political leaders claim that the use of standoff munitions lowers the barriers to waging war, it directly validates the criticisms of those who view these new technologies as an insidious invitation to resort to force unnecessarily. Advanced weapons, and the know-how to use them, exist to help us win our wars. They do not alter the legal requirements for fighting them.

Ultimately, the argument that Congress’s constitutional role is contingent upon the risk to U.S. troops cannot stand on its own. In OLC’s Libya opinion, it was invoked half-heartedly, as a matter of secondary importance to the national interest served by enforcing a UNSC resolution.

With no such resolution available in Syria, and no easily definable national interest to safeguard, justifying unilateral executive action would have been a tall order indeed. As intransigent and divided as Congress may be, asking its permission stands a better chance than courting President Putin.

Of course, a congressional authorization for the use of military force does not satisfy international law. But it would surely enhance the President’s professed comfort level in going forward without a UNSC resolution.