President Obama’s request for express congressional authorization for a limited aerial invasion of Syria raises profound legal and constitutional questions. For starters, there is simply no legal basis in international law to support an American invasion of Syria. Yet, notwithstanding that, federal law permits the president to commit U.S. military forces anywhere he wants for up to 90 days, without express authorization from Congress. So, why did Obama ask for the authorization he surely knows he already has?
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Since March 2011, Syria has been in the throes of a civil war. Those seeking to oust the government of President Bashar al-Assad are a mixture of his domestic political opponents, disgruntled former Syrian military officers and dangerous radical foreign Islamist fighters affiliated with al Qaeda. International organizations monitoring the war have put the dead from both sides at more than 100,000 persons.
Until last week, the U.S. had steadfastly stayed out of this war, as its outcome is unlikely to affect American national security. Though Assad is a former friend who once famously dined with then-Sen. John Kerry, he is now a monster willing to go to extremes to stay in power. On the other hand, our allies in the region surely would prefer that the Syrian government not be run by or under the influence of al Qaeda, and federal law prohibits Americans and the U.S. government from aiding al Qaeda. Hence, our neutrality — until Obama made a thoughtless and bravado-driven comment during his re-election campaign in August 2012, and now fears that his bluff has been called.
In his comment, the president, sounding like an international policeman — a position he condemned when President George W. Bush sounded that way — declared that if the Syrian government used chemical weapons against its adversaries, the very use of which is prohibited by all civilized norms, America would revisit its neutrality. In reliance upon what he now claims is sound intelligence showing government use of chemical weapons on innocent Syrian civilians, Obama last week stated an intention to engage in a limited military invasion of Syria so as to weaken its resolve and ability to fight the rebels further.
Never mind that the photos shown by Obama’s folks of aid workers ministering to the supposed victims of government gassing show the workers without gas masks or gloves, and never mind that the Assad regime has permitted U.N. weapons inspectors unfettered access to its materiel, and never mind that the president wants to invade Syria before the weapons inspectors issue their report. The president wants us to believe that the Assad regime intentionally gassed a thousand Syrian innocents who were of no military value to the rebels or threat to the regime — and among whom were, according to former House Speaker Nancy Pelosi, D-Calif., “hundreds of children.”
Even if all this took place as Obama claims, can he lawfully bomb Syria to punish its government for violating international norms or to deter it from doing so again? In a word: No.
International law recognizes only three lawful routes to the use of military force. It recognizes the right of every country to launch military force in order to prevent its own borders from being invaded or to subdue those who commenced an invasion. It also recognizes the ability of any U.N. member state to come to the aid of any other U.N. member state when one of them has been invaded. And treaties to which the U.S. and Syria are parties permit limited-purpose invasions when approved by the U.N. None of these lawful scenarios applies to Syria.
Can Obama just launch an invasion of Syria even if it would be unlawful and even if Congress says no?
Because of the vicissitudes of history, the personalities of presidents and the myopic compromises of past Congresses, the area of presidential war-making has different legal and constitutional ramifications. Under the Constitution, only Congress can authorize the offensive use of military force. James Madison’s notes from the Constitutional Convention in 1787 make it obvious that the Framers were nearly unanimous in their resolve to keep the war-making power away from the president and repose it exclusively with Congress. They did this clearly and unambiguously in Article I, Section 8 of the Constitution.
Notwithstanding the precise language of the Constitution and the history of the nation’s birth, the War Powers Resolution (WPR), a federal statute enacted in 1973 over President Nixon’s veto, does permit the president on his own to use the military for offensive wars for a maximum of 90 days. Thus, under current federal law, Obama may lawfully bomb Syria even if Congress declines to authorize him to do so and even though such an act would violate international law.
But the WPR is profoundly unconstitutional because it cedes Congress’ constitutional war-making power to the president. The WPR was an ill-conceived political compromise effectuated by a Watergate-weakened president, congressional hawks who approved of Nixon’s unilateral invasion of Cambodia and sober congressional heads more faithful to the separation of powers.
Yet, the Supreme Court has ruled consistently that the transfer of constitutional powers among the branches of the federal government is unconstitutional, even if popular and consensual, unless brought about by an amendment to the Constitution. Thus, Congress can no more let the president start wars than the president can let Congress appoint federal judges, lest the Constitution have no meaning or force of law.
So why does Obama want Congress’ approval to do that which international law prohibits and federal law permits? Obama knows that war is the health of the state: It unites political adversaries around common patriotic-sounding goals and often generates support for those in harm’s way and resources for the government officials who sent them there.
But, will another war enhance our freedoms or our safety? Will it add to our debt? Will it trash the law? Can we bomb and kill for bragging rights?
The answers are obvious, and they don’t justify war.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.”
© ANDREW P. NAPOLITANO
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