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Obama Has the Authority to Act on Syria

The British Parliament’s refusal to support action in Syria, even in principle, means that if President Obama does decide to act, he will be, in some sense, acting even more “unilaterally” than President Bush did in Iraq. Bush, after all, had the support of our second-oldest and closest ally—that would be the United Kingdom. He had numerous UN resolutions he could point to which Saddam Hussein had violated, even if, then as now, the UN has not been willing to authorize the use of military force to uphold international law. And he had overwhelming support in both houses of Congress for resolutions authorizing him to use military force.

Obama has none of those things. As a result many Republicans are lambasting him for supposedly unlawful use of force by an imperial chief executive. Not so. Obama’s use of force in Syria may be unwise—we will have to see about that—but it is certainly not unlawful. As the law professor John Yoo notes, the Founders gave Congress the power to “declare” war but gave the commander-in-chief the power to “engage” in war. The distinction may seem arcane but it means that presidents have ample executive authority to conduct hostilities, at least on a limited basis, without immediate authorization from Congress.

This is not a new development. As I argued in my book The Savage Wars of Peace: Small Wars and the Rise of American Power (which is coming out in a revised edition in 2014), presidents have been employing military force on their own authority ever since the early days of the Republic to fight Barbary pirates, Indian tribes, and other perceived menaces. More recently this power has been utilized by numerous presidents of both parties, whether it was Ford rescuing the USS Mayaguez crew in 1975, Carter trying to free the hostages in Iran in 1980, Reagan sending a peacekeeping mission to Lebanon in 1983 and bombing Libya in 1986), Bush the elder sending military forces to Somalia in 1992, Clinton bombing al-Qaeda camps in 1998, or Obama bombing Libya in 2011.

As a practical matter there is no necessity for the president to get a formal authorization from Congress to use force on a limited basis. (Obviously it’s a different matter if a major war is in the offing.) Getting such authorization is still a good idea, however, if it’s practical to do so, not least because it will help inoculate the president to some limited extent if things go wrong. (I stress limited extent—most members of Congress quickly forgot they had ever ratified the invasion of Iraq.) It is a matter of prudential calculation, then, whether President Obama should seek Congress’s blessing before the use of force in Syria, which turns on whether such blessing is likely to be forthcoming.

I would hope that it is, because there is an important international norm against the use of weapons of mass destruction which needs to be upheld. I hope most Republicans can see that even if Labour and Tory “Little Englanders” (the British version of isolationists) did not.

Instead of trying to block the president, Republicans would be well advised to push him to make the looming military action in Syria more wide-ranging and strategically significant than news accounts currently depict. Obama vows to send a “shot across the bow” of the Assad regime with cruise missiles. He would be better advised to use air power in cooperation with ground action by vetted rebel forces to cripple and ultimately bring down Assad’s regime, making impossible further atrocities such as the use of chemical weapons last week.



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