Congress, War Powers and Syria
The potential for an attack on Syria once again raises the thorny constitutional question of who, the President or Congress, has war-making authority.
In the wake of the deadly poison gas attack in Syria that has claimed many, many lives, expectations around the world hold that the Obama administration will approve military action against the Assad regime.
Perhaps this is the right move, on humanitarian grounds. Regardless of who is right or wrong in Syria, the Assad regime or the mostly anonymous "rebels," there are no winners in this civil war. There is only death and destruction. An end to the hostilities and a return to peace would be immensely beneficial. On this basis, again, perhaps military intervention would be the right choice.
The expectation, however, is that that choice falls to President Barack Obama. That perception, though, is incorrect. If the White House unilaterally decides to initiate military operations against Syria, not only will that set the stage for a much wider quagmire in the Middle East, it will also be violating at least the spirit of the law in the United States. This will be true even if the President acts in concert with the United Nations, NATO and the European Union.
The decision to commit the entire nation to war, regardless of how just that war might be, should not ever fall to a single person to decide. If it does, if the President can, in fact, legally order the nation to war, then he is no longer accountable to anyone. He has become the sole legislative authority in the nation. To put it bluntly, he has become a dictator, and it doesn't matter in the least if his intentions are honorable. The only salient point is that the principle has been confirmed that one person, the President, can by personal fiat commit the entire nation to war.
What would those who founded this nation think of such a possibility?
The Founding Fathers both wrote into law and established precedent governing when a President may exercise authority to order war making operations. The first is written into the Constitution. Enumerated among the powers of Congress, is the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
By writing this rule, the Founding Fathers sought to prevent a president from having the unilateral power to commit the nation to hostilities. But this doesn't prevent a president from initiating military action in all cases.
During his administration, President Thomas Jefferson engaged the Barbary pirates without a Congressional act of war, but he was not transgressing the Constitution in so doing. As Commander-in-Chief, the President may act to defend the United States against aggression.
This was the case with the Barbary pirates, who had been demanding tribute, capturing ships, and holding prisoners for ransom for several years. In 1785, for example, Algerians captured two American ships and held their crews, demanding ransom of $60,000.
As a minister to Europe at the time, Thomas Jefferson was ordered to begin negotiations with the pirates to arrange a payment of tribute in exchange for safe passage for American ships. He was uncomfortable with this policy and thought that the United States should respond to the violence of the Barbary states with force. In 1786, in a letter to president of Yale College, Ezra Stiles, Jefferson wrote, "it will be more easy to raise ships and men to fight these pirates into reason, than money to bribe them."
In 1801, after Jefferson entered the White House as President, Tripoli alone demanded that the United States pay $225,000 plus an annual tribute of $25,000. The pasha of Tripoli then declared war on America.
In his message to Congress, Jefferson described the situation: "To this state of general peace with which we have been blessed, one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean…."
As Albert Gallatin, then Secretary of the Treasury, pointed out, this action did not violate the War Powers Clause. "The [executive] cannot put us in a state of war," he said, "but if we be put into that state either by the decree of Congress or of the other nation, the command & direction of the public force then belongs to the [executive]."
In other words, Jefferson believed that a President had the power to order defensive operations using whatever forces Congress had funded. Nonetheless, it was clear that the power to order offensive operations was retained by Congress.
John Yoo, no friend of limited government, writing for the Boston University Law Review, noted that "Jefferson and his advisors clearly believed the Constitution only required Congress to declare war to undertake purely offensive operations against a nation with which the United States was at peace…."
Things have changed drastically since the time of Jefferson. The last time a President asked Congress for a declaration of war was after the attack on Pearl Harbor. It's noteworthy that President Roosevelt, again no friend of limited government, asked for an official declaration of war given that under the precedent set by Jefferson, he would have had the option to retaliate on his own authority because the United States had been attacked and both Germany and Japan had already declared war. Japan declared war on December 8 and Germany declared war on December 11, 1941.
In subsequent years, Presidents have ignored the Constitution when it comes to war and have initiated hostilities on their own or have looked to international bodies for authorization.
Seeking to ever so mildly reassert its authority, in 1973 Congress passed the War Powers Resolution that allows the President to commit armed forces to war for 60 days with the caveat that Congress must be informed within 48 hours.
With regard to the present crisis in Syria, this would seem to allow the President to commit American forces to action as long as he notifies Congress within 48 hours.
This is, in fact, the position taken by Time Magazine. In an article titled, "Obama Can Strike Syria Unilaterally," Mark Thompson reminded readers of the administration's action against Libya in 2011.
According to Thompson, "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."
The administration's action was legally questionable then, and it would be so again if similar justification is used for a strike on Syria.
The War Powers Resolution provides a three part framework within which a President has power to commit forces to war. Under "Purpose and Policy," the law reads:
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to
(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
This is entirely in keeping with the Jeffersonian precedent. It did not apply to the action taken against Libya in 2011.
According to Michael J. Glennon, Professor of International Law at the Fletcher School of Law and diplomacy at Tufts University, at the time of the Libyan action, the Justice Department's opinion on the "Authority to Use Military Force in Libya" was not "convincing" in light of the Constitution, precedent and the wording and intention of the War Powers Resolution.
Glennon wrote: "With the text of the Constitution, its structure and function, the intent of the Framers, and case law proving scant support," the Justice Department "has fashioned a new, elastic standard to justify presidential war making…."
Moreover, prior to this new innovation that runs counter to all previous American law and custom regarding the war power of the President, Glennon notes that not even Barack Obama, nor his closest advisors, originally believed the President could make war outside of the Constitution's restrictions.
Glennon cites then-Senator Obama who said, in 2007: "The president 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." Then-Senator Biden also agreed on this point, saying, "The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force."
The Constitution is clear on the subject, as is precedent and the War Powers Resolution. The President does not have the legal authority to intervene militarily unless the nation is attacked or is about to be attacked. Clearly, Syria is in no position to attack the United States.
Why is this such an important issue? As Abraham Lincoln pointed out:
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."
Lincoln was no fan of limited government. Yet even he was aware that the war making power should not be solely held by the President.
In this case, Congress should follow his advice, and reassert its authority to prevent the current president, and future occupants of the Oval Office, from arrogating to themselves the sole power to make war.