Harry S. Truman went to war in Korea. Ronald Reagan bombed Libya and invaded Grenada. George H.W. Bush invaded Panama. Bill Clinton fired cruise missiles at targets in Sudan and Afghanistan and sent troops to Haiti and bombers to Kosovo. Barack Obama bombed Libya (again).
All of these military actions were ordered without seeking authorization from the legislative branch and sometimes even without prior notification.
Obama, announcing that he would consult with lawmakers and ask for a vote before launching a military strike in Syria, said Saturday: “I believe I have the authority to carry out this military action without specific congressional authorization.”
But, he added, “the country will be stronger . . . and our actions will be even more effective” with legislative assent to a “limited” strike to punish the government of Syrian President Bashar al-
Assad for the alleged use of chemical weapons, and to make sure they aren’t used again.
In the days since Obama’s announcement, legal scholars and experts have joined battle in television appearances, blog postings and other public forums over the rules for congressional authorization, the president’s inherent national security powers under Article II of the Constitution and the wisdom of Obama’s decision.
No matter what authority he claims, “the larger consequence of the president’s action will resonate for years,” foreign policy author and Clinton administration official David Rothkopf wrote in Foreign Policy. Obama, he said, “reversed decades of precedent regarding the nature of presidential powers” and has made it “highly unlikely that at any time during the remainder of his term will he be able to initiate military action without seeking congressional approval.”
Obama’s “hands will be tied” if Congress votes against him on Syria, Temple University law professor Peter J. Spiro wrote on the Opinio Juris blog Saturday. “At no point in the last half century at least has a president sought advance congressional authorization for anything less than the full-scale use of force.”
There is little argument outside Congress that Obama can act alone under both the Constitution and the 1973 War Powers Resolution.
Many have applauded Obama for doing the right thing. Harvard Law professor Jack Goldsmith, writing on the Lawfare blog, declared himself ”very happily surprised” by Obama’s announcement.
“In light of the constitutional questions, the lack of obvious support in the nation and Congress, and the risks of sparking a broader conflict in the Middle East . . . it would have been terrible for the President and the nation if he had engaged in strikes in Syria without seeking congressional approval,” wrote Goldsmith, head of the Justice Department’s Office of Legal Counsel during the George W. Bush administration.
Georgetown Law School professor Martin Lederman argued on Opinio Juris that although Spiro was “correct that the President’s turn to Congress is in one respect without recent precedent, a unilateral use of force by the President in Syria also would have been unprecedented in important respects, and probably more corrosive to the modern balance of war powers between the political branches.”
Unlike previous efforts, wrote Lederman, who served in the Obama Justice Department’s Office of Legal Counsel, a Syria strike would not have been supported by “historically sufficient national interests,” including self-defense, protection of U.S. nationals and/or support” of actions approved by the United Nations.
U.N. Security Council resolutions or NATO participation have sometimes been cited by presidents who asked for approval after the fact. Then-State Department legal counsel Harold H. Koh mentioned both in 2011 congressional testimony supporting a war powers resolution more than three months after the initiation of U.S. military action in Libya.
While the circumstances of separate military actions may seem nearly identical, how the president or Congress responds often comes down to a judgment on what the political traffic will bear.
“The original purpose of the Kosovo strikes was similar to the ones stated for Syria: ‘to demonstrate the seriousness of NATO’s purpose so that the Serbian leaders understand the imperative of reversing course; to deter an even bloodier offensive against innocent civilians in Kosovo; and, if necessary, to seriously damage the Serbian military’s capacity to harm the people of Kosovo,’ ” Goldsmith wrote.
Although the protection of civilians was among the stated purposes of both the 2011 Libya action and Obama’s case for Syria, a sense of urgency about the former was shared by a healthy portion of both the public and Congress. When Obama gave the order to start cruise missile attacks and subsequent bombing strikes in Libya, “we judged we had 48 hours before [Libyan leader Moammar] Gaddafi’s forces got to Benghazi,” said a senior administration official, who spoke on the condition of anonymity as Obama and his national security cabinet presented the public justification for Syria.