Friday, August 30, 2013

Presidential Authority for Decision on Use of Force

I don't pay much attention to all the attacks, from both right and left, on the administration's push to war, and especially the so-called requirement that the president act only with the approval of Congress. Frankly, the executive can authorize military action without legislative approval, especially airstrikes. A longer deployment does require congressional action, but at this point the focus should be on the evidence for the administration's case for the attack on Syria. What hard intelligence provides the smoking gun of Assad's use of chemical weapons? The burden should be particular heavy for the left, people who are reflexively antiwar when a Republican is in office. While some on the left are rightly critical of the push to war, there's no shortage of depraved partisan hacks bootlicking the Democrat White House, pathetically giving the disgusting Obama-Dem hypocrites a pass.

In any case, the Wall Street Journal nails it here, "Congress Finds It Tough to Block Military Action in Syria: Historically, the President Has Exercised Wide Latitude Over Military Actions":

WASHINGTON—Lawmakers of both parties have been voicing reservations over using force in Syria, but if President Barack Obama directs the U.S. military to punish Bashar al-Assad's regime for its alleged use of chemical weapons, Congress has little chance of stopping him.

The Constitution assigns most of the nation's war powers to Congress, including authority to "raise and support armies," "maintain a navy," punish "offenses against the law of nations" and "declare war" itself.

In contrast, the president's sole military function is that of "commander in chief" of the armed forces.

But historically, the president has exercised wide latitude over military actions, often with minimal involvement from Congress. A 2011 Congressional Research Service report lists hundreds of overseas deployments since 1798, only 11 of which were wars declared by Congress. Other instances were authorized by congressional statutes or resolutions, sometimes retroactively, or never approved by Congress at all.

Over the years, "Congress has not insisted on its meaningful involvement in many uses of force," and therefore has ceded some of its power, said Mary Dudziak, director of the Project on War and Security in Law, Culture and Society at Emory Law School in Atlanta.

The Obama administration presented its case for possible military action against Syria to congressional leaders in a 90-minute, unclassified briefing in a conference call Thursday evening.

Congress last asserted its independent war powers in the early 1970s, when bipartisan majorities moved decisively to end the Vietnam War and, they hoped, prevent future presidents from unilaterally committing the U.S. to conflicts that would be difficult to end. In 1973, Congress ended funding for the war in Indochina and, over President Richard Nixon's veto, passed the War Powers Resolution.

The resolution requires the president to notify lawmakers within 48 hours of sending armed forces into "hostilities" and to "terminate" such operations within a maximum of 90 days unless Congress specifically authorizes the deployment. The executive branch has disputed whether Congress can impose such limits on the president, but as a practical matter the measure hasn't prevented a host of military operations over the past 40 years.

The waters are muddied further by international law. In the case of Syria, legal experts have raised serious doubts over whether foreign intervention, even to protect civilians, is consistent with international law absent authorization from the United Nations Security Council.

But the U.S., which invaded Iraq in 2003 without Security Council backing or a claim that it was responding to an immediate threat of attack, has refused to let the international community determine how it asserts its national interests.

In 1983, President Ronald Reagan sent U.S. forces to capture the Caribbean island nation of Grenada, where American medical students were considered in jeopardy, without authorization from Congress, much less the U.N. In 1999, President Bill Clinton ordered an air campaign to protect civilians in Kosovo from Yugoslav attacks, likewise acting solely on his own authority.

Past practice, along with the Constitution's own vague definitions of war powers, essentially gives the president a free hand to act as he sees fit, at least initially, said William H. Taft IV, who served as deputy secretary of defense in the Reagan administration and as the State Department's chief lawyer under President George W. Bush.

But if Mr. Obama wants operations against the Syrian regime "to go on for a long time, he'd better get support and he'd better explain what he thinks we're doing," Mr. Taft said.

The Obama administration takes a similar view.

In justifying the 2011 air operations in Libya, the Justice Department argued that Congress itself had "implicitly recognized" a long tradition of executive primacy in military operations, at least for deployments of short duration.
More at that top link.

PREVIOUSLY: "Secretary of State John Kerry Statement on Syria."