How Congress Can Limit Obama’s War in Syria – Bloomberg

The White House draft of a measure
granting President Barack Obama the authority to attack Syria,
sent to Congress last week, was far too broad. Now some critics
are saying that the Senate’s rewritten resolution, approved by
the Foreign Relations Committee this week, is too narrow.

Consider me skeptical. The lesson of history is clear:
Whatever limiting language Congress adopts, a determined chief
executive will read it to justify pretty much whatever he wants
it to justify.

Presidents, when they choose, have always found ways to
broaden the authority granted them by Congress, especially in
matters of war and peace — where, as the political scientist
Kenneth R. Mayer details in his book “With the Stroke of a Pen:
Executive Orders and Presidential Power,” limiting language
rarely limits.

Shortly before the U.S. entered World War II, for example,
President Franklin Roosevelt issued an executive order creating
an extensive system of classification for defense information.
He cited as his authority a statute granting him narrow
discretion to protect the details of the locations of military
bases.

In 1945, Congress passed a law prohibiting the use of
appropriated funds for agencies created without legislative
approval. The very next year, President Harry Truman used an
executive order to establish the Central Intelligence Group,
avoiding the word “agency” to get around the statute.

Contradictory Language

When concern turns to the actual use of military force,
there is a grand American tradition of what we might call
bifurcated grants of war power, in which the Congress in one
clause circumscribes the president’s authority and, in the next,
grants him the discretion to do what circumstances demand.

The bifurcated war resolution has a long history. In 1802,
for example, President Thomas Jefferson asked Congress for
authorization to use naval forces to stop the Barbary States
from holding captured U.S. merchant ships for ransom and
enslaving their crews. Congress responded with alacrity,
adopting legislation that permitted the president to take
measures “as may be judged requisite … for protecting
effectually the commerce and seamen thereof on the Atlantic
ocean, the Mediterranean and adjoining seas.”

But the resolution didn’t stop there. Congress also
authorized Jefferson to take Barbary ships and other goods in
retaliation, and “to cause to be done all such other acts of
precaution or hostility as the state of war will justify, and
may, in his opinion, require.”

This last clause is in effect an unfettered grant of
discretion, all but revoking the seeming limits created by the
previous clause. The bifurcated resolution has become a model in
the transfer of war powers from Congress to the president. One
finds similar language, for example, in the Gulf of Tonkin
Resolution
of 1964 (“all necessary measures to repel any armed
attack against the forces of the United States and to prevent
further aggression”) and the 2002 joint resolution authorizing
the use of force in Iraq (“necessary actions against
international terrorists and terrorist organizations”).

The drafters of the Senate’s Syria resolution seem
determined to avoid so broad a grant of authority. The question
is whether they have succeeded. Let’s look at the Senate’s
language:

“The President is authorized … to use the Armed Forces
of the United States as he determines to be necessary and
appropriate in a limited and specified manner against legitimate
military targets in Syria, only to: (1) respond to the use of
weapons of mass destruction by the government of Syria in the
conflict in Syria; (2) deter Syria’s use of such weapons in
order to protect the national security interests of the United
States and to protect United States allies and partners against
the use of such weapons; (3) degrade Syria’s capacity to use
such weapons in the future; and (4) prevent the transfer to
terrorist groups or other state or non-state actors within Syria
of any weapons of mass destruction.”

Slippery Language

Sounds narrow, right? Wrong.

Consider a simple hypothetical. A repressive foreign leader
– call him Bad Guy — is concerned that his population might
rebel. Impressed by Syria’s use of sarin gas to kill hundreds or
thousands of people, Bad Guy decides to try to obtain some of
that regime’s chemical weapons. Could the U.S. president order a
strike against Bad Guy?

You might think that the resolution is written to avoid
this. In this, you would be mistaken. The president could reason
that Bad Guy would never have attempted to obtain any of Syria’s
WMD stocks but for its regime’s use of nerve gas. Attacking Bad
Guy, the president says, is therefore part of responding “to
the use of weapons of mass destruction by the Syrian government
in the conflict in Syria.”

You might object that the resolution refers explicitly to
“legitimate military targets in Syria.” And the restriction on
transfers explicitly refers to terrorists and other actors
“within Syria.” How on earth could this language be considered
a grant of authority to attack targets outside of Syria?

Very easily, I’m afraid. The president might say, for
example, that Congress could not possibly have intended that
Syria be able to protects its chemical weapons stocks simply by
moving them over the border — say, to Lebanon or, the way
things are now, even Iraq. Surely (the president could assert)
Congress wanted those weapons destroyed wherever they might wind
up.

And if you think the president would never attempt so far-fetched a justification, I recommend that you go back and study
the resolution that authorized the use of military force passed
after the Sept. 11 attacks, relied on by the Obama
administration as legal justification for its wider drone war.
Search for any hint of authority for drone attacks against
persons or groups not thought to be involved in Sept. 11. (Hint:
You won’t find it.)

This is not to say that the current administration
stretches the law any further than did its predecessors. My
point, rather, is that an authorizing resolution is the wrong
place to try to limit the president’s discretion — not because
one can’t invent language, but because it isn’t going to work.

Clear Language

I am not necessarily a fan of tying the hands of the
commander in chief as U.S. forces go into battle. If it’s going
to be done, however, the most effective tool for curtailing
presidential discretion is the appropriations power.

According to the Congressional Research Service, Congress
has used this power successfully several times: to prohibit the
introduction of ground forces in Cambodia during the Vietnam
War, as well as to end direct U.S. participation in the war
itself; to prevent the reintroduction of U.S. forces into
Somalia after 1993’s “Black Hawk down” incident in Mogadishu,
Somalia; and to keep the Bill Clinton administration from using
“ground elements” in the Balkans in 1999 (except to rescue
downed airmen).

The ability to agree on an appropriations rider isn’t some
relic of a bygone age of bipartisan cooperation. The many
provisions prohibiting the use of appropriated funds to transfer
prisoners from Guantanamo Bay, Cuba, to the U.S. have been
adopted regularly since 2009, when the Democrats controlled both
houses of Congress.

In short, even in these fractured times, the House and the
Senate know how to stop the president, even in matters of
national security, when they really want to. They just don’t
seem to want to.

(Stephen L. Carter is a Bloomberg View columnist and a
professor of law at Yale University. He is the author of “The
Violence of Peace: America’s Wars in the Age of Obama” and the
novel “The Impeachment of Abraham Lincoln.” Follow him on
Twitter at @StepCarter.)

To contact the writer of this article:
Stephen L. Carter at stephen.carter@yale.edu.

To contact the editor responsible for this article:
Michael Newman at mnewman43@bloomberg.net.

Stephen Carter