Striking Syria will likely be illegal–and it won’t matter

Updated
A picture taken on August 22, 2013 shows a devastated street in the Salaheddine district of the northern city of Aleppo, Syria.
A picture taken on August 22, 2013 shows a devastated street in the Salaheddine district of the northern city of Aleppo, Syria.
Louai Abo Al-Jod/AFP/Getty Images

If the Obama administration attacks Syria in retaliation for dictator Bashar al-Assad’s alleged use of chemical weapons, it will likely do so without authorization from Congress.

That’s probably illegal. And it also probably won’t matter.

“The law and the precedent here are at such opposite ends,” says Steve Vladeck, a professor at American University’s Washington College of Law. “The law seems to be clear that the president needs prior approval unless a claim that what he is doing is necessary for self-defense, and yet history, especially recent history, is replete with examples of the contrary.”

Obama himself once felt strongly that presidents couldn’t authorize military force on their own except under limited circumstances, saying in 2007 that the president of the United States does not have “power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

That was before he was president. Today, Obama, like many of his predecessors, subscribes to a much more expansive view of presidential power. In 2011, Obama ordered the use of military force to aid Libyan rebels against the late dictator Moammar Gaddafi without first seeking congressional approval. To justify that intervention as legal, the administration argued that the president need not seek approval for congressional approval for military operations when there is a “national interest” at stake and the operations “do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof,” or any “escalation of those factors.” That is, as long as the US is waging  a short-term war with deadly flying robots and cruise missiles, and American troops themselves are not in danger, it doesn’t really count as a war.

Those two factors, “national interest” and the assumed scope of the proposed conflict, are what Jack Goldsmith, a Harvard Law professor and former Bush administration Justice Department official, has described as the “two part test” developed by the Obama administration to determine whether unilateral military action is legal.

In an interview with PBS’ Newshour Wednesday, Obama tried to make the case that the use of chemical weapons creates a national interest for intervention. The Assad regime’s past alliances with terrorist organizations means that “there is a prospect, a possibility, in which chemical weapons that can have devastating effects could be directed at us,” Obama told PBS.

As described in media reports, the contemplated intervention in Syria would likely involve less of a commitment than US actions in Libya. Between those two factors, the president likely believes he can act without approval Congress.

The administration has been briefing Congress on its intentions, but many lawmakers argue that isn’t good enough for Obama to meet his legal obligations. Ninety-eight Republicans and 18 Democrats signed a letter sent to the White House Wednesday demanding that Obama seek congressional approval before authorizing a military strike against Syria. House GOP intelligence committee chairman Mike Rogers said in a separate letter Wednesday that administration briefings “do not constitute formal notification and consultation with Congress.”

Obama’s apprehension about going to Congress may have as much to do with Congress as it does with his view of his own powers. In 1998, the GOP controlled House narrowly voted to approve President Bill Clinton’s air strikes in the Balkans after they were already occurring. In 2011, Congress voted down a resolution disapproving of the use of military force in Libya, and then voted down a resolution approving it. Many Republicans urged intervention in Libya, and then criticized the president for intervening when he finally did. Presidents of both parties have scoffed at congressional attempts to limit their authority, and as The American Prospect’s Scott Lemieux writes, since World War II, Congress has often abdicated its responsibility to declare war to the president, in part because it makes it easier to avoid blame if things go south.

Public opinion is also against intervention in Syria, and Republicans don’t want to be on the hook for approving an unpopular war. If Obama doesn’t act, they can accuse him of weakness. If he acts without approval, they can accuse him of lawlessness. Most of Congress really wants Obama to ask permission, but history suggests that asking for forgiveness may be the safer option politically.

“The problem here is that the law seems to suggest that the president needs Congress’ approval, but the practice suggests he needs to not have their disapproval,” Vladeck says. The War Powers Resolution states that the president must seek congressional approval for ongoing military operations lasting more than two months, but that window has been read as implicitly authorizing the president to conduct military operations that don’t reach that threshold.

Yet the intended purpose of the War Powers Resolution, which was enacted in the aftermath of America’s war in Vietnam, was to prevent presidents from hastily deploying military force. The law exists in order to raise the burden of going to war by asking for Congressional permission. The possibility that Obama would have a hard time getting congressional approval for operations in Syria arguably makes it that much more important for him to seek it.

Striking Syria will likely be illegal--and it won't matter

Updated