What Will A Proposed Authorization for Military Force in Syria Authorize?

Now that the president has vowed to seek Congress’s approval even for what he promises will be very limited military action in Syria, an interesting question arises. What will the authorization authorize him to do? 

The president will want an expansive resolution, allowing him maximum flexibility to do what he thinks necessary to accomplish what he determines to be the goals of military action.  Skeptics on the right and left will push for a narrower authorization, carefully circumscribing his authority to a limited response to the use of chemical weapons by Syria.  Some of the issues that may arise relate to the purpose, scope, and duration of the intervention.  Will the authorization state the purposes of the intervention (punishment, deterrence, disabling the regime’s ability to use chemical or other forbidden weapons, protecting civilians, etc.) and then try to limit the authorization to those purposes?  How much flexibility will the president have to respond to unexpected developments, like a post-bombing retaliation by Syria against its neighbors or retaliation by terrorist groups or nations like Iran?  Will the authorization be sunsetted, or will it be temporally open-ended?  Will Congress attempt to select the type or magnitude of force that might be used by, for example, limiting it to air strikes rather than to the introduction of ground troops? 

As we’ve already seen in the run-up to this proposed intervention in Syria, the specter of the Bush era will hang over the debate.  After 9/11 there was some debate over the substance of the eventual Authorization for the Use of Military Force (AUMF).  The Bush administration wanted maximum executive power, including a specific provision authorizing the president to order military force within the United States itself.  While that language was ultimately omitted, the final version of the AUMF opted for breadth:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The president later argued, and a majority of the Supreme Court areed, that this language allowed the president to set up a system of possibly indefinite detentions of “enemy combatants,” without trial and with only limited review of the basis for their detentions, in the war on terror.  The Bush administration also claimed that the AUMF allowed the president to place prisoners on trial before Article II military tribunals whose procedures and rules of evidence were determined by the president.  The Supreme Court disagreed with that interpretation of the AUMF, but Congress later specifically approved the tribunals.

The Iraq War Resolution approved in 2002 similarly allowed the president full discretion “to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.”

A similarly worded authorization might allow President Obama to use any force “he determines to be necessary and appropriate in order to deter and prevent the continued use of chemical weapons by Syria.”  That would be a very broad authorization, not limited as to time or methods and leaving discretion entirely in the hands of the president. In the case of the Iraq resolution, of course, such language was designed to allow the president to order a full-scale invasion with the goal of regime change.  Years of military occupation followed.  So Congress can be expected to want narrower language than that.

Whatever limits Congress tries to place on the president’s authority, we can be sure that the president will insist that he has the authority as the nation’s executive and as the Commander-in-Chief to take whatever action he thinks needs to be taken in the national interest.

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