Could the President Bomb Syria Even If Congress Says No?

Posted in: Government

What is at stake in the Congressional debate over whether to authorize the Obama Administration to bomb Syria in response to the apparent use of chemical weapons by the regime of Bashar al-Assad?  Apparently, nothing, at least if one takes the word of Secretary of State John Kerry.  In a recent interview, Kerry stated that, while he does not know what decision President Obama would make in the event that Congress fails to authorize force, “every president . . . has always reserved to the presidency, to the commander in chief of the armed forces, the right to make a decision with respect to American security.”

Can that be right?  In this column, I acknowledge the logic of Kerry’s position, as well as the recent precedents for his view.  Nonetheless, I also explain why his view is profoundly misguided.

Bombing Syria Without U.N. Authorization Would Violate International Law

Before turning to Kerry’s suggestion that the Congressional vote with respect to Syria makes no difference domestically, it should be noted that the vote surely makes no difference to the question of the ultimate legality of bombing Syria.  As I explained in a blog post, and as other legal commentators have also noted, bombing Syria without United Nations Security Council authorization would plainly violate international law.

To summarize, the U.N. Charter permits the use of armed force in exactly two circumstances: (1) when authorized by the Security Council; or (2) in response to an armed attack.  The Obama Administration has apparently concluded that a Russian veto (and possibly also a Chinese veto) is so certain that there is no point in the Administration’s even offering a resolution for Security Council action.  And while the Syrian civil war’s spillover effects on NATO ally Turkey could justify the U.S. in coming to Turkey’s aid, Turkey has not, in fact, sought NATO assistance, nor has the Obama Administration claimed that it seeks to use force in response to an external attack by Syria.

Indeed, the Administration has not offered any reason for thinking that its proposal to bomb Syria complies with international law.  Some Administration defenders point to a supposed customary international law norm permitting force to defend human rights, but as both my blog commentary discussed above and the other source that is linked above explain, there is no good argument for thinking that this norm, even if it exists, can be invoked in circumvention of the Security Council.

Accordingly, the Administration has found itself in the awkward position of arguing that it must violate international law—by bombing Syria without authorization—in order to uphold international law—in particular, the customary and treaty-based prohibitions on the use of chemical weapons.

Congressional Authorization Cannot Substitute for Security Council Authorization

Despite the Obama Administration’s apparent conclusion that it would be futile to seek Security Council authorization, the President and his spokespeople have aggressively sought authorization from Congress.  The Administration won a partial victory last week, when the Senate Foreign Relations Committee voted 10-7 in favor of authorizing limited military intervention in Syria, but the prospects in the full Congress remain uncertain at best.  Public opinion polls show most Americans to be opposed to the proposed missile strikes, and members of Congress of both parties have just spent a long summer recess getting an earful from their constituents.

Even in the Administration’s best-case scenario, however, Congressional authorization cannot substitute for U.N. Security Council authorization.  International law contains requirements for the use of force that act in addition to the requirements of domestic law.  Just as some action might be permitted under state law but forbidden under federal law (or vice-versa), so too, an action might be permitted under domestic law but forbidden under international law.  Congressional authorization of the use of force serves to ensure compliance with the Constitution’s system of checks and balances but does nothing to ensure compliance with the U.N. Charter’s system for minimizing the risks of global armed conflict.

Is the Congressional Vote Merely Advisory?

 Perhaps the Obama Administration has concluded that military intervention in Syria is so imperative that the U.S. must act, even in the face of Russian opposition in the Security Council.   Nonetheless, Congressional authorization is not mere window dressing.  Although the Administration may take the view that a moral imperative justifies violating international law, the President has not even hinted that he believes himself to be empowered to act unconstitutionally.

But neither does the Administration think that bombing Syria without Congressional authorization would be unconstitutional.  On the contrary, Secretary Kerry’s statements indicate that he believes that the President has the power to act as Commander in Chief, regardless of Congress’s wishes.  In this view, the Constitution commits national security decisions to the President, who may seek the advice of Congress, but the President can still decide to act against that advice.

In his weekend interview, Secretary Kerry invoked recent military interventions in support of this view.  The most directly relevant is President Clinton’s 1999 decision to commit U.S. air power to the NATO mission to protect civilians in Kosovo.  After the Senate passed a resolution authorizing force, the NATO bombing mission commenced.  The resolution then failed to pass (on a rare tie vote) in the House of Representatives, although the signal was somewhat confounded by other votes in the House.

President Clinton’s actions in Kosovo thus do provide some precedent for Kerry’s position, but the analogy is not entirely apposite, as it involved a failure to authorize a military campaign that was already underway.  In that respect, it looks quite a bit like other military actions that were undertaken by recent presidents without prior Congressional authorization: Ronald Reagan’s invasion of Grenada; George H.W. Bush’s invasion of Panama; and Obama’s own bombing of Libya.

But there may be a difference between a President’s using military force without prior authorization when he did not seek it, and a President’s seeking authorization but then using military force anyway when he is denied that authorization.

The Constitutional Line

Because the Constitution allocates some military powers to Congress and others to the President, the line between what the President can do on his own, and what he can do only with Congressional authorization is often murky.  Nonetheless, a general principle emerges that permits the President to act when delay would be risky.

When the United States faces an actual or imminent attack, the President may respond with force without first waiting for Congressional authorization.  Secretary Kerry implicitly invoked this principle in stating that the President does not need Congressional permission to act in the interest of American national security.

However, in the Syrian context, the invocation is simply a non sequitur.  No one seriously thinks that the use of chemical weapons by the Assad regime against its own citizens poses a national security threat to the United States.  By its own admissions, the Administration seeks to intervene in Syria to protect Syrians, not to protect Americans.

Moreover, even if U.S. national security could be said to be at stake in the Syrian civil war, it is a matter of long-term national security.  Would the U.S. be better served by bombing Syria in the hope of reinforcing the prohibition on chemical weapons use and maintaining U.S. credibility—as the Administration says—or by continuing to pursue diplomatic efforts to resolve the Syrian conflict?  By seeking Congressional input on that question, the Administration tacitly but unmistakably acknowledged that this is not a situation in which an immediate response is required.

Even though Secretary Kerry is right that recent Presidents have sometimes acted without Congressional authorization when the delay occasioned by seeking authorization would have been consistent with national security interests, that pattern itself should be regarded as disturbing, for it undermines a vital constitutional check on the ability of a President to take the country to war.  In an era when Congress so often seems dysfunctional, it would be terribly ironic for the President to ignore its judgment on a rare occasion when it soberly reflects the popular will.

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