I want to briefly unpack this extraordinary statement by President Obama yesterday in Sweden:
[T]he truth of the matter is that under international law, Security Council resolution for self-defense or defense of an ally provides a clear basis for action.
But increasingly, what we’re going to be confronted with are situations like Syria, like Kosovo, like Rwanda, which we may not always have a Security Council that can act. It may be paralyzed, for a whole host of reasons. And yet we’ve got all these international norms that we’re interested in upholding. We may not be directly, imminently threatened by what’s taking place in a Kosovo or a Syria or Rwanda in the short term, but our long-term national security will be impacted in a profound way, and our humanity is impacted in a profound way.
And so I think it’s important for us to get out of the habit, in those circumstances — again, I’m not talking about circumstances where our national security is directly impacted, we’ve been attacked, et cetera, where the president has to act quickly, but in circumstances of the type that I described, it’s important for us to get out of the habit of just saying, well, we’ll let the president kind of stretch the boundaries of his authority as far as — as he can; Congress will sit on the sidelines, snipe; if it works, the sniping will be a little less; if it doesn’t, a little more, but either way, the American people and their representatives are not fully invested in what are tough choices. And we as a country and the world are going to start — have to take tough choices. . . .
And if the answer is, well, we should engage diplomatically, well, we’ve engaged diplomatically. The answer is, well, we should shine the spotlight and shame these governments. Well, these governments oftentimes show no shame. Well, we should act internationally. Well, sometimes, because of the various alignments, it’s hard to act through a Security Council resolution.
And so either we resign ourselves to saying, there’s nothing we can do about it, and we’ll just shake our heads and go about our business, or we make decisions, even when they’re difficult. And I think this is an example of where we need to take — make decisions even though they’re difficult, and I think it’s important for Congress to be involved in that decision.
This statement is very significant for two reasons.
Domestic Constitutional Law. The President here states that he thinks it is appropriate to go to Congress for authorization of force (a) when he there is no “imminent threat” to U.S. national security, but (b) there is a humanitarian crisis, and (c) the U.N. Security Council has not authorized force. This shows the relatively limited scope of the precedent being set here, at least in the President’s mind. No need to go to Congress in situations like Libya (UNSC Resolution), or when U.S. self-defense, or protecting U.S. persons or property, are at stake (e.g. Libya 1986, Afghanistan 1998). This statement is consistent with the Executive branch’s prior views on presidential unilateralism, which (compressing a lot) basically deems it appropriate for the President to use unilateral force when U.S. self-defense or persons or property are being protected, or when there is a UNSC Resolution, as long as the commitment of U.S. force is not too extreme (as in, say, 2001, or Iraq 2002, or Iraq 1990, went the President also went to Congress). Kosovo is of course the outlier, and President Obama might be implying that President Clinton should have gone to Congress (although of course Obama might deem NATO’s approval in Kosovo adequate, and his lawyers certainly will when they are relying heavily on the Kosovo precedent for the Syria intervention should Congress say “no.”). Presidents need cover/approval when engaging in uses of force that lack an obvious short-term national interest rationale – and that cover can be provided by the Security Council (Libya), or NATO (Kosovo), or Congress (Syria). The extraordinary thing, of course, is that the President deems Congress but one of a number force-legitimating institutions, the one he turned to last, and at the last second, after the international options didn’t work out.
International Law. The President’s statement, combined with his remarks last Saturday that he is “comfortable going forward without the approval of a United Nations Security Council that, so far, has been completely paralyzed and unwilling to hold Assad accountable,” marks the death knell for the long-held USG view that humanitarian intervention without Security Council approval violates the U.N. Charter. (Even after Kosovo, the USG did not retreat from this view.) Of all the norm and precedent changes being effectuated by the Syria matter, this one will have the most long-term significance. The President’s reorientation of the U.S. posture toward the United Nations demonstrates again the extraordinary power presidents have to speak for the United States in international affairs. Here the President announces a major change in the USG’s interpretation of the most fundamental treaty, a change that many think will result in action that clearly violates the treaty – all without prior consultation with, much less approval by, the Senate or Congress.
To get a sense of how defiant of international law and the U.N. system the President’s statement was on this front, consider the poor Swedish Prime Minister’s humorously awkward statement directly following President Obama’s:
I think — I think — I think — I think I should answer the question. I think you’re right in saying that this is a very difficult decision to take, and as always, it’s a balancing act. And we’ve been discussing this during our talks. Just to remind you, you’re now in Sweden, a small country with a deep belief in the United Nations.
UPDATE: Marty Lederman and I have an exchange on the issues above.