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Syria Authorization 2.0

- September 4, 2013

News outlets including Roll Call’s #WGDB blog recently released the text of the Senate Foreign Relation Committee leadership’s draft authorizing military force in Syria. The draft, which will reportedly be marked up Wednesday, marks compromise language between Sens. Robert Menendez and Bob Corker. It begins with a long list of “whereas” clauses denouncing the “abuses of the regime of Bashar al-Assad,” including “the brutal repression and war upon its own civilian population…. creating an unprecedented regional crisis and instability,” its “material breach of the laws of war” as well as the treaties and norms against chemical weapons declared by the United Nations, the U.S. Congress, and (for good measure) the Arab League.

Quick thoughts: The substance of the resolution is a collection of attempts to limit presidential discretion and at least one strange submission to it.

On the one hand, the resolution:

(1) twice mentions the “limited and tailored” use of force authorized therein, seeking to limit such force “only to: respond to the use of weapons of mass destruction by the Syrian government…; deter Syria’s use of such weapons in order to protect the national security interests of the United States and to protect our allies and partners against the use of such weapons; and…degrade Syria’s capacity to use such weapons in the future.”

(2) limits ‘boots on the ground’ by declaring that “The authority granted…does not authorize the use of the United States Armed Forces on the ground in Syria for the purpose of combat operations.”

(3) requires the president to make: (i) to the House and Senate leadership of a variety of certifications in advance of using force, then (ii) to tell “Congress” again that he is going to use force, then to report after 10 days (and every 20 days thereafter) on how things are going, and how much it’s costing. Since the resolution specifies that it does not set aside any requirements under the War Powers Resolution, he presumably also has (iii) to have reported all this within 48 hours after military action starts. In any case, (iv) within 30 days the president is also supposed to come up with a “Syria Strategy” aimed at achieving a negotiated solution there, with some hints at the Committee’s wishlist in this regard (help the opposition! limit Iranian influence! isolate extremists! find some allies, for goodness’ sake!)

(4) limits the authorization to 60 days from the effective date of the resolution, though the president (by certifying he needs to) may extend this deadline for 30 days unless Congress passes a joint resolution (subject to veto) disapproving an extension.

All this certainly aims to be more constraining than the original Obama draft.

On the other hand,

(1) those boots could still land if they are on soldiers doing something that could be defined as ‘non-combat’ operations;

(2) even onerous reporting requirements are easy enough given an infinitely large national security staff; and judging from Sec. Kerry’s performance before the Committee today, the administration will have no problem certifying everything demanded here;

(3) limits centered on the need to “protect the national security interests of the United States” might be relatively malleable in the circumstances. The phrase is presumably designed to stop the mission from extending to broader protections of the Syrian civilian population (one of the rationales for the Libyan operation, you will recall). But to get this far, the president will already have been required to certify that punishment of the Syrian regime for attacks on civilians with chemical weapons is designed to protect the national security interests of the United States. Further, in the same sentence the president is given authority to protect “our partners” from such weapons. So what if we make some new partners along the way?

(4) the resolution says in one of its “whereas” clauses that “the President has authority under the Constitution to use force in order to defend the national security interests of the United States.”  Different from, but quite as broad as, the parallel clause in the September 2001 AUMF (“the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States”) it seems out of place in a series of “whereases” justifying the resolution in the first place.

If the president does have such authority under the Constitution, unfettered by others’ judgment about what the national security interests of the United States might entail, putting it in statutory language has no effect. If he does not, the clause does not make it so — but it does provide another useful piece of ‘legislative intent’ presidents can point to in future iterations of this interaction. Since in the resolution at present what expires after 60 (or 90) days is the congressional authorization for the operation, not the operation itself, there seems to be a backdoor permission here to continue the latter even after that time, under ongoing claims to “national security interests.”

This may be at once both too close and too quick a reading of Resolution 2.0, especially since it is probably not the final draft. But, as former OLC head Jack Goldsmith noted earlier today on Lawfare, it does show the rhetorical contortions necessary to try to simultaneously empower and restrain the president.