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The Senate Draft AUMF for Syria is Narrower Than the Administration’s Draft, But Still Broad In Some Respects

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Wednesday, September 4, 2013 at 5:03 AM

The draft Senate Syria AUMF contains a narrower authorization for the use of presidential force than the one the administration proposed.  But it is in some respects still broad, and it actually enhances the president’s claims of independent constitutional authority to intervene in Syria.

Before parsing the draft, a few background points to keep in mind.  The proposed AUMF contains affirmative congressional authorization for the President to use force, and some limits (e.g. the 90-day limit) on that authorization.   But a limit on the congressional authorization is not a limit on presidential power to use force if the President possesses an independent and inherent constitutional basis to use force under Article II.  President Obama claims – though we have not yet seen his administration’s legal rationale – that he has such independent constitutional authority to the use of force in Syria, regardless of what power Congress gives him (or doesn’t give him).  The limits in the draft AUMF in no way restrict this independent presidential constitutional power.  Indeed, as I will explain, far from restricting it, the draft AUMF enhances the president’s independent constitutional position.

Now to the details.

Core AuthorizationSection 2 of the draft provides:

The President is authorized, subject to subsection (b), to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to: (1) respond to the use of weapons of mass destruction by the Syrian government 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 our allies and partners against the use of such weapons; and (3) degrade Syria’s capacity to use such weapons in the future.

This language is narrower than the administration’s draft.  It limits the use of force to “targets in Syria,” and has a more narrowly tailored purpose.  It would not give congressional sanction to the use of force outside of Syria (in, for example, Iran or Lebanon).  It would, however, authorize attacks on the Syrian command hierarchy in Syria, all the way up to Assad himself, as long as the President determined such attacks to be “necessary and appropriate” to respond to and deter and degrade Syrian WMDs.  (The “limited and tailored manner” qualification is not much of a restriction, since all DOD uses of force are, under the laws of war, proportionate and discriminate, and since the President is charged with determining what is necessary and appropriate in any event.)

Ground Troops “Limitation.”  Section 3 of the draft provides: “The authority granted in section 2 does not authorize the use of the United States Armed Forces on the ground in Syria for the purpose of combat operations.”

This is a limit on the authority conferred by Congress in Section 2, and not a limit on the President’s independent constitutional power to send ground troops into Syria, even for combat purposes.  Section 3 merely says that the congressional approval of the use of presidential force in Syria does not entail approval for the use of ground troops in Syria.  But it does not speak to, much less prevent, the President from using ground troops on his own authority.

Moreover, even the ground troop limitation on Congress’s authorization contains an exception for ground troops introduced into Syria for a purpose other than “combat operations.”  In other words, Sections 2 and 3 in combination affirmatively authorize the President to introduce U.S. ground troops in Syria for non-combat purposes if he thinks they are necessary and appropriate to achieve the purposes of the authorization.  Section 3 is probably written this way to capture the fact DOD Special Operations Forces are being used in Syria, or will be used there, for intelligence-related and other “preparation of the battlefield” tasks.  (I imagine, but of course do not know, that this is a nod to operational reality, since DOD has probably already sent Special Operations Forces into Syria, under the President’s Article II power, to prepare the battlefield.) It is also probably meant as a carve out for search-and-rescue missions, and the like, if necessary.

Procedural Limitations.  The Senate’s draft authorization for presidential force terminates after 60 (or, if certain conditions are met, 90) days.  This is no way limits the President’s independent constitutional authority to use force in Syria after 90 days.  The draft AUMF also contains anodyne requirements for the President to make certain findings (Section 2(b)), boilerplate language about the War Powers Resolution (Section 2(c)), strategy consultation requirements (Section 5) notification and reporting requirements (Section 6), and rules of construction (Section 7).

The President’s Independent Constitutional AuthorityThe draft AUMF enhances, through congressional recognition, the President’s claims of independent constitutional authority to use force in Syria.  Here is why.  The draft acknowledges in its last “Whereas” clause that the President “has authority under the Constitution to use force in order to defend the national security interests of the United States.”  This broad and unqualified congressional acknowledgment of independent presidential constitutional power takes on special significance when combined with other “Whereas” findings, especially Congress’s recognition that (a) “Syria’s acquisition of weapons of mass destruction threatens . . . the national security interests of the United States; and (b) “Syria’s use of weapons of mass destruction and its conduct and actions constitute a grave threat to . . . the national security interests of the United States.  (My emphases.)

I think these provisions together constitute congressional acknowledgement that the President has constitutional authority, independent of the AUMF, to use military force to defend against the acknowledged threat to U.S. national security interests posed by the Syrian acquisition and use of WMD.  (In legal jargon, this is not a Jackson category 1 approval of such force, but it is an acknowledgment that the President has “inherent” constitutional power under Jackson category 2 to use force in these circumstances.)  Note that this very broad congressional acknowledgment of presidential power does not suggest any geographical limitation.

The last “Whereas” clause is the broadest such clause I have ever seen.  I believe that the notion of a congressional “whereas” acknowledgment of independent presidential power in an AUMF is a Bush-era innovation.  (I have not seen such clauses in pre-Bush-era AUMFs.)  But the Senate’s draft “Whereas” clause is much broader than the analogous ones during the Bush era.  The “Whereas” clause in the 2001 AUMF, which at the time was criticized for being quite broad, is more concrete and narrow than the Senate draft, for it recognizes only that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”  (The 2002 Iraq AUMF has the same basic language as the 2001 AUMF).

The “Whereas” language in the draft AUMF gives significant support to the position that the President has some (uncertain) independent constitutional authority to use force in Syria, regardless of what Congress authorizes, and (perhaps) beyond what Congress authorizes.  Since I believe that a unilateral presidential use of force in Syria would go beyond all past OLC precedents, the “Whereas” clause as currently drafted is especially important to the President’s novel constitutional position.

SummaryIf the Senate draft becomes law, the President should be very pleased.  It will give him congressional political and legal support for the targeted strikes that his senior national security advisors say he wants to conduct.  The authorization extends to the use of ground troops in Syria for intelligence and other non-combat-related purposes.  The draft AUMF does nothing to limit the President’s claimed independent constitutional power to intervene in Syria regardless of what the Congress does.  Indeed, in the “Whereas” clauses it actually supports the President’s claims for independent constitutional power in this context, in broad and unqualified terms.  Given the President’s stated aims, this is, for him, a great AUMF – if Congress passes it.

PS: Check out other views on the Senate’s draft AUMF by Wells and Ilya Somin and emptywheel.

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