Thoughts on the Text of the Obama Administration’s Proposed Authorization to Use Military Force in Syria

Co-blogger Dale Carpenter rightly poses the question of what an authorization to use military force in Syria would actually authorize. The Obama Administration has just released the text of its proposed congressional resolution, which might help answer that question. Here is the most important part:

AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES

(a) Authorization. — The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to —

(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; or

(2) protect the United States and its allies and partners against the threat posed by such weapons.

This wording is narrow in one sense, but very broad in another. It is narrow in so far as the purpose is limited to dealing with chemical weapons and other WMDs, as opposed to pursuing broader objectives such as the overthrow of the Assad regime. It’s broad, however, in the sense that it allows the president to use force against a wide range of possible adversaries, not just Assad and his government. For example, it is certainly broad enough to allow Obama to target the Syrian rebels if he determines that they have chemical weapons or are likely to acquire them soon. The radical Islamist terrorists among the rebels surely qualify as “terrorist groups or other state or non-state actors” that the resolution would allow the president to target if it seems likely that Syrian WMDs might be “transfer[red]” to them. Indeed, if US air strikes weaken the Assad regime sufficiently that the rebels end up capturing some of its chemical weapons stockpiles, we could end up fighting both sides in the Syrian civil war simultaneously.

Obviously, Congress doesn’t have to “take or leave” Obama’s proposed wording. They could potentially adopt a narrower or broader authorization for the use of military force. Some argue that Congress cannot limit the president’s wartime authority in this way. In my view, it has the right to do so under its Article I power to “make rules for the Government and Regulation of the land and naval Forces.” This is what gives Congress the power to to forbid the use of chemical and nuclear weapons in combat, regulate the treatment of enemy prisoners, and adopt the various rules contained in the Uniform Code of Military Justice. If Congress can regulate the weapons, tactics, and conduct of the armed forces, it can also limit the range of purposes for which they are used in wartime, and the range of enemies they are allowed to attack. In practice, however, it is very difficult to enforce restrictions on presidential discretion in the use of military force once the fighting actually begins. IF the missiles start flying, the main effect of congressional limitations is likely to be political rather than strictly legal.

None of the above will matter much if Obama only launches a very brief attack limited to launching a few missiles or sending in a few airstrikes. The administration has repeatedly stated that they envision only a brief and limited operation, perhaps just a “shot across the bow,” as Obama himself put it. In that event, he can easily stay within the limits of even the most restrictive congressional resolution. But, as I suggested previously, such a small-scale attack is unlikely to accomplish anything useful, and could turn out to be worse than doing nothing. In addition, there is always the chance that the conflict will escalate beyond the limits originally envisioned by the administration. Thus, if Congress is going to authorize the use of force at all, it should carefully consider how far that authorization should go. And if it turns out that there is no way to inflict meaningful damage on the Assad regime without thereby helping radical Islamists take over the country, Congress would do well to simply refuse the president’s request.

UPDATE: Peter Spiro and David Rothkopf argue that Obama’s decision to submit this request to Congress is a major surrender of presidential authority. Jack Goldsmith effectively rebuts such claims here. With the important exceptions of the Kosovo and Libya conflicts, presidents usually have sought congressional authorization for all but very small nondefensive uses of force. And rightly so, as a matter of both prudence and constitutional law.

UPDATE #2: As some commenters note, Obama could potentially use this resolution to justify efforts to overthrow Assad by claiming that removing him is the best way to “prevent or deter the use or proliferation” of chemical weapons. On the other hand, such massive “mission creep” would raise serious political difficulties after the president secured the resolution’s passage by assuring everyone that he only seeks a very limited intervention. It would also go against the spirit of the resolution, if not its letter. By similar reasoning, Obama could theoretically try to use the resolution to justify an attack on Russia or Iran, because their support of Assad emboldened him to use chemical weapons, and punishing them for that support might help “prevent or deter” future uses of WMDs by the Syrian regime.

UPDATE #3: Jack Goldsmith has a good post where he argues that the proposed resolution is “much broader” than I suggest. He correctly points out that it does not limit the range of forces the president can use (e.g. – he can use ground troops as well as air and naval power). He is also right to suggest that in some circumstances, it would allow the president to use force against Iran or Hezbollah, if for example he determines that Syrian WMD have been transferred to them, or if they are somehow helping Assad use them). All of this is consistent with my analysis above. I do think Goldsmith goes to far when he says the draft would give Obama the authority to use force against any entity that has “a connection” to the use of WMD in Syria. The resolution speaks of authorizing force “in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria,” but only for the two purposes outlined above: preventing and deterring future use or proliferation of WMD, and protecting the US and its allies against the threat posed by their use.