Syria, the President and the Constitution

By now, it has become obvious to anyone with a functioning brain that Barack Obama has painted himself into a corner with his talk of “red lines.” Yesterday, he announced that he would seek Congressional approval for action in Syria in response to a chemical attack by al-Assad’s regime against civilians in the suburbs of Damascus. Originally, Obama, speaking through Secretary of State John Kerry, made the case that action had to be taken and it had to be quick. Then he backtracked and now says he will seek Congressional approval. With Obama about to depart on a trip to the G20 summit and Congress not set to reconvene until September 9th, is he going to wait, or is he going to seek some kind of quasi-Congressional approval by notifying the House and Senate leadership and getting their tacit approval?

There is varying debate on whether the President can legally and constitutionally begin hostilities in Syria without Congressional approval and most of that debate revolves around the definition of “war.” Clearly, there is ambiguity where a small scale military action ends and “war” begins. It is also recognized that the President can move unilaterally without Congressional approval in the case of actual or imminent attack. However, in this case, the regime in Syria is more concerned with self-survival than they are with drawing regional allies into the conflict, or in attacking the US or any of its Middle Eastern allies. Thus, Obama cannot use the “imminent threat” excuse to move unilaterally. It would not be surprising if he did since he has already in the case of Libya in 2011.

Regardless, there are statements from the Executive Branch indicating that should Congress convene on schedule or on an emergency basis and should they vote against using military force, Obama will nevertheless proceed with a military strike. That would be keeping with the general theme of this administration to (1) ignore the will of Congress and (2) disdain checks on presidential powers written into the United States Constitution. Whether through expansive use of Executive Orders or outright ignorance and defiance of the Constitution and Supreme Court decisions, Obama- our first alleged constitutional scholar to occupy the White House- has demonstrated that his powers as President should approximate those of a dictator. At least previous imperial presidents dealt with Congress at the time before proceeding.

Obama further illustrates the hypocrisy of the average liberal. Not too very long ago, he was one of many railing against George W. Bush. Today, many of the arguments being raised against Obama were the very same arguments raised against Bush by Obama. Either it is hypocrisy or Obama learned that Bush was, after all, correct, so which is it? But, there is a huge difference here. With Bush, he had Congressional authorization to use force in both Afghanistan and Iraq which, incidentally, are his only two military actions which pale in comparison, in terms of numbers, to those of his predecessor, Bill Clinton who had eight. While Clinton’s interventions may have been “limited,” he still used the military more times: (1) Iraq 1993 for attempted assassination of George H.W. Bush, (2) Somalia 1993, (3) Haiti 1994, (4) Bosnia 1994-1996, (5) Iraq 1996 for violating no-fly zones, (6) Sudan and Afghanistan in retaliation for embassy bombings, (7) Iraq 1998 for failure to comply with UN inspections and (8) Kosovo 1999.

But, if we look at these Clinton examples, there were either obvious US interests involved, or they were somewhat authorized under either a UN or NATO mandate. Obama will not get a UN resolution because of Russia (and possibly China) and NATO in no way is implicated in Syria. Perhaps the only excuse Obama could use here is the threat posed to allies in the area, particularly Israel, but the Assad regime has demonstrated no compunction to use chemical weapons outside its borders. Thus, the “imminent threat” excuse is non-existent.

Instead, the only reason for any military action would be the protection of not the credibility of the United States itself, but the credibility of Barack Obama. Perhaps, indirectly the country’s credibility is implicated since at this point a failure to act after a “red line” has been crossed will make the United States an international paper tiger. The recent move to seek Congressional approval is a delaying tactic, not a nod to the Constitutional power of Congress to “make and declare war.”

And the Constitution is clear in this regards. The Congress has the power to “make and declare war.” However, ever since the Vietnam War, the lines have been blurred between “war” and “conflict,” between “limited” and “large scale.” Former UN Ambassador under Bush, Josh Bolton, told Fox News that Obama has the power to attack Syria without Congressional approval and if Congress does not like it, they can cut off funding. For the sake of argument, let us say Obama orders a cruise missile strike involving 30 missiles. In the Bolton solution, what? Congress does not fund the replacement of 30 cruise missiles? They pro-rate the amount of fuel used to move destroyers into the eastern Mediterranean and subtract that from future military spending?

We need to go back to the 1780s when the Constitution was debated, written and ratified. Perhaps the one person most in favor of a strong Presidency was Alexander Hamilton. During the ratification debates, he stated: “the Legislature has the right to make war” and that “…it is the duty of the Executive to preserve peace till war in declared.” The reason is simple and this was not such a controversial proposition in 1789. Our Founders wanted to prevent the Executive from unilaterally involving the country in foreign wars without Congressional approval. The Congress was the ultimate check on the Commander-in-Chief’s war powers. If ever a situation has arisen that would clearly illustrate the fears of our Founders, it is a military strike on Syria. This is clearly a civil war in a foreign country where, admittedly, the United States has a stake in its outcome. But, that is true of every civil war in every country. For example, in Grenada in 1983, we moved to prevent a Communist take over of that island which would not have been in our interests. Even still, Reagan had the backing of the OAS for that action and acted under a valid treaty.

If Obama’s ultimate plan is a small-scale attack that does not rise to the level of “war” in any sense, it will likely be ineffective in its goals. Those goals are to punish Syria for the use of chemical weapons and to “discourage” other regimes from doing the same in the future. Are “punishment” and “discouragement” what our Founders had in mind when naming the President “Commander-in-Chief” of the military, or for laying out the power of Congress to “declare war?” In fact, a greater case can be made that this is exactly why these Constitutional provisions were written into that document- to prevent the Executive from entangling the country in foreign conflicts where absolutely no American interests were implicated beyond the pride of the occupant of the White House.

The actual resolution the Obama administration has proposed to Congress sounds simple in one sense, but is dangerous in another. Although specific to an unspecified military action for using chemical weapons, it also states that one goal is the non-proliferation of chemical and other weapons. What if one of the rebel groups in Syria gets their hands on chemical weapons and uses them? Do we then use military action against that group? In other words, once the ball starts rolling, there is nothing to stop that ball. Congress, if they act on this proposed resolution, does not have to take it or leave it. They also have the Article I power to “make rules…for the regulation of the land and naval forces.” Under this scenario, they could limit or expand Obama’s powers and options in Syria. For example, they could limit action to only missile attacks, or they can expand his powers by wording a resolution that could be interpreted as a justification for “regime change.”

In fact, depending on how Congress acts either by accepting the Obama proposed resolution or one of their own, one can conclude that the best way to deter the proliferation or use of chemical weapons would be to depose Assad in Syria. This would be a classic example of “mission creep” and Obama would clearly be going outside the objectives he himself declared and what Congress had in mind. Cant’t happen? Think Bush and Iraq, weapons of mass destruction, then regime change. Think every liberal and their uncle crying out for impeachment or making speeches, Obama included. And where would this potentially end? Such a resolution would potentially lend justification to an attack on Iran or even Russia, Syria’s two biggest supporters today.

Some have argued that seeking Congressional approval will hamstring future presidents, especially with respect to humanitarian efforts. The only analogy we have is Clinton’s intervention in Kosovo and, like Obama today, the Clinton administration never successfully explained the legal or constitutional rationale for our intervention there. Every military action since World War II has received Congressional approval with the exception of two: Kosovo in 1999 and Libya in 2011. Even Vietnam had congressional approval.

The obvious goal of any action by Obama is to prevent the future use of chemical weapons and similar atrocities. Why now? According to several foreign intelligence reports, the Assad regime has used these weapons at least 14 times already. Because this most recent attack was brought home on nightly television, is that the reason to act now? And what is so different from Assad using phosphorus or napalm on civilians? For that matter, what about the ample evidence on YouTube and elsewhere of rebels beheading people in Syria? If we want to deter civilian atrocities, then why not intervene in Nigeria where the daily slaughter of people at the hands of Islamic extremists occurs with nary a word from the press in the US? Or, why do we withhold support from the military in Egypt whose opposition (the Muslim Brotherhood) has undertaken a systematic strategy of attacking innocent Christians in that country?

The fact is that should Obama decide to go it alone without Congressional approval, it would be an extra-constitutional act, but one totally in keeping with this administration’s mindset. This administration has little respect for the Constitution and limits on executive power. Obama has stated that the world cannot stand silent while Assad uses chemical weapons on their own people, but that is exactly what the world is doing. There may be condemnations, but is any of those doing the condemning jumping behind Obama’s proposed military action? To illustrate his hypocrisy, he has adopted the anti-Bush policy that the United States cannot be the world’s policeman, yet that is exactly what he is doing here. His “shot over the bow” of the Assad regime is a “shot” nevertheless and once a shot is fired, Congressional war powers are implicated.

Bolton asserted on Fox News that Obama could constitutionally initiate a missile strike, or even a limited air strike without Congressional approval. However, he also said it would be politically problematic. A missile or air strike, despite its goals, its longevity or brevity or what have you, is an act of “war.” It is not a humanitarian effort. It requires congressional approval in the same manner that the Bush administration received approval for hostilities in Afghanistan and especially in Iraq where no direct American interests were at stake in the case of the latter. If we are going to allow the use of the military to prop up the integrity and credibility of the sitting president- not the United States, but the person occupying the White House- then those parts of the Constitution that deal with war have been totally negated. Our Founders specifically dealt with this issue over 200 years ago and their solution was simple. Unless attacked or American interests were imminently threatened, the President cannot act unilaterally. Every president until Obama knew this and acted accordingly with the possible exception of Clinton in Kosovo in 1999. How ironic- two Democratic presidents acting outside the Constitution, but par for the course. And dangerous.