If President Barack Obama chooses to unilaterally launch a military attack against Syria in retaliation for the government's alleged use of chemical weapons against civilians last week, he is certain to face criticism that he's overstepping his executive authority.
The president has already run up against resistance from some members of Congress, who argue that under the 1973 War Powers Resolution and the U.S. Constitution he must seek the body’s full approval before taking military action against the country.
The disagreement is part of a larger and thorny constitutional and legal argument over how far Congress can go to check the chief executive's war powers and what types of military actions constitute war.
Rep. Justin Amash, R-Mich., has said it would be “unquestionably unconstitutional” for Obama to bomb the country without Congress’ approval, and he has authored legislation to withhold funds from the effort. Democratic Sen. Tim Kaine of Virginia also has suggested the president might be on shaky legal ground if he doesn’t get a congressional OK. More than 100 members of Congress signed a letter to the president warning him to seek their approval before attacking another country.
Interestingly, Obama himself made a similar argument while on the campaign trail six years ago. He told the Boston Globe in 2007 that no president can use military force absent an “actual or imminent threat to the nation” without first getting Congress' approval. (Vice President Joe Biden, for his part, vowed to impeach President George W. Bush in 2007 if he bombed Iran without first getting approval from Congress.)
White House press secretary Jay Carney said on Tuesday that the president still stands by his 2007 statement, but that Syria’s alleged use of chemical weapons does pose an actual and imminent threat to U.S. national security. Obama said last week that if chemical weapons are used on a large scale, they could affect “core national interests,” such as America’s duty to protect its allies and bases in the Middle East.
The U.S. Constitution says it's up to Congress to declare war and to fund the military. The 1973 War Powers Resolution allows presidents to deploy troops when there's a "national emergency" caused by an attack on the country or its possessions, but then gives the executive only 60 days to get congressional approval or withdraw troops. Presidents in the past have become engaged in conflicts without first checking with Congress and have stretched the definition of "national emergency."
John Yoo, a University of California law professor best known for authoring controversial memos authorizing the use of torture on detainees from the war in Afghanistan during his time in Bush's Justice Department, told reporters on Thursday he believes Obama’s critics are wrong.
“If President Obama wants to use force in Syria, constitutionally I think he can,” Yoo said. “Politically, it would be wise for him to get congressional support.”
Yoo believes that Congress’ power over warfare under the Constitution is through the purse and that those who believe Congress must preapprove any use of force by the executive misunderstand the Constitution.
The U.S. involvement in Kosovo, the Korean War and other conflicts all began without a congressional vote. The last official declaration of war by Congress was for World War II, as the power to use force has gradually shifted away from Congress and toward the chief executive. The Constitution does not require the president even to have a good reason to attack another country, Yoo said.
But other scholars disagree with Yoo’s interpretation and think a unilateral strike on Syria without congressional authorization will constitute a legal gray area. Harvard Law School professor Jack Goldsmith wrote on Wednesday that “the use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.” Goldsmith argued that “no plausible self defense rationale exists” and that informal briefings to lawmakers will not be a substitute for congressional debate and authorization.
Just two years ago, the Obama administration launched an air war against Libya without getting Congress’ authorization and then handed off the operation to NATO. (The Libya operation was approved by the U.N. Security Council, which would be less likely to approve action against Syria.) The White House argued then that the airstrikes did not amount to war because U.S. troops were not put at risk. It’s likely these semantic arguments about what counts as “war” will emerge again if the United States does in fact strike Syria.
Meanwhile, there’s the issue of whether an attack on Syria would be legal under international law.
The Geneva Conventions outlawed the use of chemical weapons during warfare after World War I, and there is some precedent for invading a country to stop a humanitarian crisis. If there is irrefutable evidence that an atrocity is occurring and there is no peaceful means to stop it, the U.N. Security Council can authorize force against a nation. But even without the U.N.’s approval, international law may allow nations to band together to stop an atrocity from occurring. This is the argument that some British authorities are making, with Attorney General Dominic Grieve arguing that the U.K. is authorized to take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria.”
Obama’s argument that stopping the use of chemical weapons is in the national interest seems to have less support in international law, which does not clearly support the use of pre-emptive force as self-defense. The U.N. charter says nations may defend themselves only once they are attacked. (The Bush administration pushed back on this interpretation, arguing that the existence of “rogue states and terrorists” meant that the United States could pre-emptively attack in self-defense.)
“Allowing the use of chemical weapons on a significant scale to take place without a response would present a significant challenge to or threat to the United States' national security interests,” Carney said on Tuesday.
Correction: This story originally misidentified Rep. Justin Amash's home state.