Commentary on Syria: Congress' problem, our problem
This article first appeared in the St. Louis Beacon, Sept. 3, 2013 - The situation in Syria presents one of the most intricate problems any president has had to face. It involves a complicated mix of issues with unattractive options. In announcing that he will seek congressional authorization to support his decision to make a limited military response to Syria’s use of chemical weapons against its citizens, President Barack Obama has converted his problem into Congress’ problem — and our problem. And although it is not clear that such authority for so limited a response is legally needed, it’s also appropriate that Congress and citizens consider and be accountable for addressing the problems posed.
For several years, Obama has resisted involvement in the civil war in Syria. Although President Assad is a despicable character, the rebel groups are not particularly appealing either. America is weary from fighting in Iraq and Afghanistan, and Obama has been focused on ending those inherited wars.
Yet now American intelligence services have obtained apparently compelling evidence that Assad has used chemical weapons to kill more than 1,400 civilians including several hundred children. Virtually every country on earth is a signatory to a longstanding international convention that outlaws use of chemical weapons, a particularly egregious means of indiscriminate killing. International law clearly makes the United Nations the most appropriate body to respond when a government commits such an atrocity against its own citizens but the United Nations is paralyzed by the repeated insistence of Russia and China to veto any U.N. military action.
As a matter of domestic war powers law, President Obama arguably could have unilaterally launched a limited strike of missiles from naval vessels in international waters at regime targets in Syria. It is not at all clear that such a limited action, under the actual and contemplated circumstances, would be a “war” under the Constitution requiring congressional approval. Presidents have done similar limited strikes in the past -- as President Ronald Reagan did against Libya and President Bill Clinton did against Afghanistan -- without prior congressional approval.
The War Powers Resolution has its own constitutional problems, some of which Tom Eagleton exposed in ultimately opposing it 40 years ago, but it is doubtful that it applies under these circumstances since it's not clear that President Obama would be introducing U.S. armed forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances" or into foreign territory, airspace or waters, and the resolution says nothing about when hostilities may be initiated, as opposed to continued after 60 to 90 days. Even if it would otherwise apply, it's highly unlikely that any such action would extend beyond the 60 or 90 day limitation the resolution imposes. What’s contemplated in Syria doesn’t resemble Iraq or Vietnam.
By going to Congress, President Obama has deferred to the professed interest of some of its members to participate in the decision. Historically, Congress has postured but ultimately sought to avoid responsibility so that the president, not its members, would be held accountable. Going to Congress involves risks given its current dysfunction, especially now that Republicans have made general opposition to Obama a defining driver of behavior. The issue offers all sorts of opportunity for people, sincerely or not, to raise opposing arguments.
To be sure, Syria presents serious questions. Some argue that international law gives exclusive authority to the U.N. Security Council, not to individual nations, to respond to a humanitarian crisis like Syria, including one involving use of chemical weapons. It would be deeply ironic if members of Congress who have denied the relevance of international norms now exploit this argument to oppose Obama’s proposed action.
Pragmatists or humanitarians argue that international law is evolving norms that under stringent conditions individual nations may use tailored force to protect civilian populations from mass atrocities and to prevent the use of chemical weapons. Indeed, in Kosovo, President Clinton acted with NATO without U.N. approval to protect civilians from Slobodan Milosevic's attacks. President Obama endorsed in his Nobel acceptance speech and apparently accepts America's right, under international law, to act under some circumstances independent of the U.N. for humanitarian reasons or to respond to chemical weapon use.
The issue also poses vexing policy questions. Can a limited strike be effective or will it prove counterproductive? What message will a response send to Assad or to others regarding the world’s willingness to tolerate the use of such weapons? What message would inaction send? And what message will action or inaction send regarding American resolve on other national security and foreign policy issues? Should American act alone or with a few other partners if it comes to that?
President Obama’s decision to go to Congress will prompt a national discussion regarding America’s obligation to address human rights atrocities and the use of these horrific weapons as well as these other dimensions of the situation. Executive branch officials have seriously engaged those questions but now the conversation will no longer be confined to the Situation Room but will require serious deliberation in both houses of Congress and in living rooms and classrooms across the nation.
Ultimately, these questions are not just President Obama’s problem but those of the representatives we’ve sent to Congress to act in the national interest. They are also our problem, one for which American citizens will also have to take responsibility. That is as it should be. That is part of the price of democratic government and of democratic citizenship.
Joel K. Goldstein is a professor at the St. Louis University Law School.