In a post earlier this week, we referred to an ongoing public discussion among international law scholars and members of the press about the legality of a U.S. intervention in Syria under international law. But there is also a parallel discussion about the constitutionality of such an action in the absence of Congressional intervention.
Over at Lawfare, Jack Goldsmith has posed the question, “Why Doesn’t President Obama Seek Congressional Approval for Syria?” This follows up on a lengthy post from last weekend in which Goldsmith laid out his views about the President’s constitutional power to intervene in Syria and concluded that there was “no clear answer” to the question. In his new post, Goldsmith writes:
I have a pretty broad view of presidential power to use military force abroad without congressional authorization. On that view, which is close to the past views of the Office of Legal Counsel, the planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before. There are many reasons why it is a stretch even under OLC precedents. The main ones, as I alluded to a few days ago, are (1) neither U.S. persons nor property are at stake, and no plausible self-defense rationale exists; (2) the main non-self-defense U.S. interest that the Commander in Chief has invoked since the Korean War to justify unilateral uses of force – upholding the integrity of the U.N. Charter – appears (as Wells argued) to be disserved rather than served by a military strike in Syria; and (3) a Syria strike would push the legal envelope further even than Kosovo, the outer bound to date of presidential unilateralism, which at least implicated our most important security treaty organization commitments (NATO). (Note that the USG was, as Wells pointed out, never able to publicly articulate a legal rationale for Kosovo. In our more legalistic age 14 years later, such silence likely won’t be possible, but it also won’t be possible to rely on Kosovo as a constitutional precedent without explaining why the invasion was lawful at the time.)
Taking a different perspective, on Monday Mark Thompson of Time argues that “Obama Can Strike Syria Unilaterally”:
Over the weekend, the White House declared that there is “very little doubt” that Syrian dictator Bashar Assad‘s forces used chemical weapons against his own people.
For better or worse, there’s also very little doubt that President Obama—should he choose to do so—can retaliate against Syrian targets for their use without approval from the American people, or their elected representatives in Congress.
Just like he did in Libya two years ago.
Washington graybeards like to point out that only Congress can declare war, and only Congress can appropriate the funds to wage war. Technically speaking, that’s true. But it is also irrelevant.
Obama wrote congressional leaders two days after the war against Libya began in March 2011, saying U.S. military action was needed “to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya.” The U.S. strikes, he said, would be “limited in their nature, duration and scope” before the U.S. handed off command of the operation to NATO.
Actually, the initial U.S. strike involved launching 110 cruise missiles from U.S. warships and 45 bombs dropped from B-2 stealth bombers. Limited was a relative term.
Obama cited a U.N. resolution to justify the action, adding that the “United States military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European allies and Arab partners to carry out the measures authorized by the U.N. Security Council resolution.”
He added that he ordered the attacks on Libya based on his “constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” He said he was informing lawmakers of the war already under way “to keep the Congress fully informed, consistent with the War Powers Resolution.”
The 1973 law requires a President to notify Congress within 48 hours of launching military action, and bars U.S. armed forces from fighting for more than 60 days, with a further 30-day withdrawal period, without congressional approval.
What do you think?
Richard B. Eisenberg
Department of the General Counsel
U.S. Air Force