A Win for the WPR? No, but…

President Obama’s decision to seek congressional authorization for the use of force in Syria seems to have taken the political world by surprise. After all, when Obama intervened in Libya in 2011, he creatively evaded such an action, citing such rationales as UN resolutions, the “non-kinetic” nature of logistical support to NATO, and the proposition that the Libya operation did not constitute “hostilities” as envisioned in the 1973 War Powers Resolution. (For further details see my series of posts at the time, linked here.)  This time around, he has provided a draft resolution that even mentions the WPR.

The reaction shows the extent to which presidents have claimed—and Congress has abdicated— authority in this area, as I posted earlier today. The WPR has only been invoked formally once by a president (Ford, back in 1975).  There are many reasons for this, ranging from presidents’ claim of inherent war powers to the drafting imprecisions of the WPR itself. (On the latter, see my earlier summary here, and a longer discussion in a book chapter, here – go to Ch. 6, p. 192.)  No president—starting with Nixon, in his overridden veto message—has accepted the WPR as binding.

And nor did Obama, with respect to Syria.

Indeed, in his Rose Garden statement of August 31, the president argued that “I believe I have the authority to carry out this military action without specific congressional authorization.”  In this he followed past precedent. The first Gulf War in 1991, the Afghanistan war in 2001 (including, albeit controversially, the much broader “global war on terror”), and the Iraq war in 2003 all received congressional sanction at presidential request—but in none of these cases did the president say he needed congressional authorization to act. Most colorfully, George H.W. Bush said in 1992 that “I didn’t have to get permission from some old goat in Congress to kick Saddam Hussein out of Kuwait.”  (If the gentlemanly Bush thought the relatively friendly 102nd Congress was full of goats, one wonders what Obama might call their contemporary counterparts…)

To be sure, the Syria intervention, as discussed publicly to date, is far less broad in its intent than these wars. On the other hand, the draft resolution the administration sent to Congress is not particularly constrained. It would give the president the authority, without time limit, to “prevent or deter the use or proliferation” of chemical weapons or weapons of mass destruction as well as to “protect the United States and its allies and partners” from them. It mentions the WPR, yes, but only to say the resolution is “consistent with” it (not, say, “required by” it.)

Even so, why? Why attract accusations from Sarah Palin, and even (self-loathing?) legislators that he is “hiding behind Congress”?

There are surely many answers, but it strikes me that other post-1973 actions where prior congressional authority was not sought have some characteristics in common not present in the Syrian case.

First, they have a rationale in self-defense, even imaginatively defined. In the WPR, presidents are given authority to use force when there is (1) a declaration of war; (2) a specific statutory authorization; or (3) ”a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Obviously options (1) and (2) can be based on any rationale, or none; but they do not – yet – apply to the Syrian situation. So one question facing Obama was whether (3) would cover sufficient ground. Some cases are easy, as with the (failed) rescue attempt of the American hostages in Iran in 1980 or the 1998 missile strikes after the African embassy bombings. In other cases presidents have been very generous in their interpretation of “attack upon the United States.”  The 1989 invasion of Panama was explained by President Bush as a response to General Manuel Noriega’s “reckless threats and attacks upon Americans in Panama [which] created an imminent danger to the 35,000 American citizens” there. The 1983 invasion of Grenada was publicly justified by President Reagan along similar lines: “first, and of overriding importance, to protect innocent lives,” and not just any lives: “American lives are at stake.” Still, it’s hard to stretch to this from the Syrian rationale, sold before today largely as punishment for the violation of international norms.

Second – in addition or instead—they had multilateral support, a cause of action endorsed by the international community, normally with a humanitarian component. Even Reagan in Grenada was careful to stress that the US had been invited to respond, that it was doing so in concert with other nations in the region (whose battleship inventory was perhaps a bit thin), and that ”this collective action has been forced on us by events that have no precedent in the eastern Caribbean and no place in any civilized society.” Likewise in Somalia (1992), Kosovo (1999), and Libya (2011), one could cite both humanitarian concerns, and treaty obligations (e.g. with the United Nations, NATO, or both). The WPR specifically rules out inferring authority to use force from such obligations (see Section 8(a)(2).)  Nonetheless, they muddy the legal waters.

In Syria, Obama has neither of these covering contexts to justify action. Indeed, he faces substantial international opposition, divided domestic opinion, and little likelihood that a ‘one and done’ airstrike will do much to change the behavior of the Assad regime. In the circumstances (and given his earlier “red line” pledge), it makes sense to bring Congress “in on the take-off” and hope the landing is not too rough. Obama’s argument that congressional debate is “the right thing to do for our democracy” might have been self-serving. But that doesn’t make it incorrect. “Senior administration officials” grumpily told the Washington Post that they debated “the implications of ceding executive authority over war powers to the legislative branch.” Such a formulation frames this authority as purely executive in the first place. It is not.

In short, this is probably not a “win” for the WPR. The combination of circumstances it entails seems rare in the annals of presidential uses of force. Still, even if the president is doing the right thing for the wrong reasons, I cannot bring myself to take T.S. Eliot’s view of such cases. Even if they don’t want to, presidents set precedents. This one, however limited it proves, might force Congress to regain some self-respect.

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