Here are a few additional thoughts on the Obama administration’s draft authorization for the use of military force in Syria, beyond those I put forward in my last post.
First, as Jack Goldsmith and others have pointed out, the constraints on presidential power created by the resolution’s limitations on the range of objectives the president can pursue is partially undermined by the fact that the draft allows him to use force whenever “he determines to be necessary and appropriate” in order to achieve those goals. One can argue that the president can potentially use the resolution to justify the use of force against anyone anywhere in the world so long as he says doing so is “necessary and appropriate” for the purpose of combating the threat of Syrian WMDs. For example, he could argue that the resolution authorizes him to attack Russia or Iran on the grounds that their support of Assad has emboldened him and thereby made further use of chemical weapons more likely. At the same time, this is one of those cases where it may be wrong to read legalistic language too literally. In practice, it might be reasonable to read an implicit good faith and proportionality restriction into this language. For example, if it looks like the president is using this authority in a way that is pretextual, the resolution would not authorize that. In addition, regardless of the details of the text, it would be politically difficult for the president to use the resolution to start a massive war after having gotten it passed by telling everyone that he envisions only a very limited resolution. That said, I do think this part of the language is overly broad. If Congress votes to authorize the use of force at all, it should probably delete this part of the president’s draft.
Second, as I noted in my previous post, Congress doesn’t have to accept the administration’s language. They can pass a narrower or broader AUMF if they want to. Since I wrote that post, this has become more than just a theoretical possibility. Senate Democrats are already looking to draft a narrower resolution:
Senate Democratic aides are drafting new language for an authorization of military force in Syria, Sen. Patrick Leahy (D-Vt.) said Sunday.
The administration’s proposal is too open-ended — a complaint many lawmakers have — Leahy said after leaving the classified briefing. The current version wouldn’t garner his support, but he indicated that a more tightly written draft might.
“I know it’s going to be amended in the Senate,” said Leahy, who is the longest-serving Democrat in the chamber.
GOP members of Congress are likely to have proposed amendments of their own. An interesting question is whether any language can be drafted that will simultaneously satisfy those in both parties who are only willing to authorize a very narrow intervention, and hawks like John McCain and Lindsey Graham, who say they are only willing to support a much broader one aimed at facilitating the overthrow of the Assad regime.
Third, while the details of the AUMF deserve consideration, the most important question is not the precise language of the resolution, but whether Congress should authorize any intervention at all. As I have repeatedly emphasized, the dilemma we face is that a very small and limited strike is unlikely to do any good, while a much larger one could end up helping radical Islamists among the rebels. Neither of these scenarios is likely to benefit either American interests or the long-suffering people of Syria. Perhaps there is some brilliant third option available. But so far, neither the Obama administration nor anyone else has explained what it is.