Jack Goldsmith on the Constitutionality of Military Intervention in Syria

Harvard law professor Jack Goldsmith has an excellent Lawfare post on the constitutionality of a US intervention in Syria undertaken without congressional authorization. While I disagreed with Goldsmith’s position on the Libya intervention two years ago, I think he is mostly right on here:

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… 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)….

All of which raises the questions: Why is President Obama going to act unilaterally? Why doesn’t the man who pledged never to use force without congressional authorization except in self-defense call Congress into session to debate and authorize the use of force in Syria? Why doesn’t he heed his own counsel that “[h]istory has shown us time and again . . . that military action is most successful when it is authorized and supported by the Legislative branch,” and that it is “always preferable to have the informed consent of Congress prior to any military action”? Why is he instead rushing to use force in a way that will set a novel constitutional precedent for presidential unilateralism that will far outlive his presidency? Since U.S. intervention in Syria portends many foreseeably bad consequences, and because there is so little support in the nation for this intervention, why not get Congress on board – not just to legitimate the action, but also to spread political risk? Why exacerbate the growing perception – justified or not – of a presidency indifferent to legal constraints? Why not follow the example of George H.W. Bush, who sought and received congressional authorization for the 1991 invasion of Iraq, or George W. Bush, who did the same for the 2003 invasion of Iraq? Or to take an example more on point, why not follow David Cameron, who (embarrassingly for the President) recently called Parliament into session to debate and legitimate Britain’s planned involvement?

Goldsmith considers several possible explanations for the president’s position, but concludes that “[n]one of these are good reasons from a constitutional perspective, and in light of the costs of unilateralism.” To give the president the benefit of the doubt, it is possible that he and his advisers believe that intervention in Syria is an important moral imperative. Knowing that Congress is unlikely to authorize the operation, they could conclude that violating the Constitution is a lesser evil than allowing the Syrian government to continue to kill large numbers of innocent civilians. But even if we agree that the administration is correct about the morality of the proposed intervention (and I have my doubts on that score), going in without strong congressional and public support greatly increases the risks of failure. Such unilateral presidential action risks a collapse of political support as soon as anything goes wrong, thereby making failure more likely. As Goldsmith puts it, secret advance deliberations with a few congressional leaders “won’t help one bit politically once things go contrary to plan, as they always do.” That’s why previous presidents usually sought congressional authorization before beginning significant combat operations other than in self-defense. As a general rule, if we don’t have a political consensus in favor of war broad enough for the president to secure congressional authorization, then we probably shouldn’t go to war in the first place. Occasionally, as in Kosovo in 1999, a president lacking domestic political support can still prevail if an extremely limited military operation is enough to break the enemy’s resistance. But that seems unlikely in the case of Syria.

I laid out my own views on the constitutionality of intervention in Syria here. They are similar to Goldsmith’s, except that I am far less willing to defer to past OLC opinions.

UPDATE: In the initial version of this post, I accidentally used “Libya” instead of “Syria” in the title. I apologize for the mistake, which has now been corrected. The error likely arose because I momentarily conflated the earlier debate between Goldsmith and myself over Libya with the current discussion of Syria.