– Senate-crafted Syria resolution riddled with loopholes for Obama (Washington Post, Sep 6, 2013):
Senators on Wednesday tried to write a tight resolution authorizing President Obama to strike Syria under very specific circumstances, but analysts and lawmakers said the language still has plenty of holes the White House could use to expand military action well beyond what Congress appears to intend.
“Wiggle room? Plenty of that,” said Louis Fisher, scholar in residence at the Constitution Project and former long-time expert for the Congressional Research Service on separation of powers issues.
Writing the actual language to empower and constrain Mr. Obama is proving to be a difficult task, with the key authors being pulled in various directions.
Some of the drafters’ colleagues want to give the president broad latitude for ongoing strikes that not only target Syrian President Bashar Assad’s chemical weapons, but also aids the rebels seeking to overthrow him. Other lawmakers, though, want the most limited of action — a strike designed only to make sure the Assad regime can’t deploy its chemical weapons again.
The resolution drafted by Sens. Robert Menendez and Bob Corker, the top Democrat and Republican on the Senate Foreign Relations Committee, grants Mr. Obama power “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” — but only in relation to that nation’s weapons of mass destruction.
The resolution puts a 60-day limit on Mr. Obama’s ability to conduct strikes, while allowing him one 30-day extension of that authority.
“Our negotiations have led to a much narrower authorization that provides for the appropriate use of force while limiting the scope and duration of military action, prohibiting boots on the ground, and requiring the Obama administration to submit their broader plan for Syria,” Mr. Corker said in a statement late Tuesday.
The committee was slated to meet at 11:30 Wednesday to amend and vote on the resolution, but it was delayed until 2 p.m., giving all sides more time to work on the measure.
Mr. Fisher said the language the senators used in their resolution was surprising.“What could possibly be the meaning of ‘limited and tailored?’ I doubt if I’ve ever seen the word ‘tailored’ in a bill,” said Mr. Fisher, a veteran of four decades of studying legislation. “Even if the ‘intent’ of Congress is a limited war, war has its own momentum.”
Mr. Fisher pointed to the 1964 resolution that authorized a limited response to the Gulf of Tonkin, but that ended up being the start of an escalation of U.S. involvement in the Vietnam war. Mr. Fisher said he wasn’t drawing a comparison, but said it was instructive to look at what Congress thought it was authorizing and what eventually developed.
The Senate resolution has already become a point of debate on law blogs, where professors are sparring over how big a check Congress is writing.
Writing at blog Opinio Juris, Peter J. Spiro, a law professor at Temple University, said the 60-day/90-day framework in the Senate resolution seems designed specifically to impose the limits of the War Powers Resolution (WPR) on Mr. Obama, who evaded them during the 2011 Libya conflict by arguing the U.S. attacks on that nation weren’t “hostilities.”
“So the administration in effect would finds itself bound by the WPR framework that it and all other prior administrations have rejected. Doesn’t sound like a result that Obama should be happy about, a far cry from the open-ended broad authorization he requested over the weekend,” Mr. Spiro said.
He said given that, the Syria resolution, or Authorization for the Use of Military Force, could end up being a major turning point in the constitutional debate over the president’s war powers.
But Jack Goldsmith, a law professor at Harvard University, said the way the resolution is written doesn’t necessarily force Mr. Obama to live by the 90-day limit because once the time frame is up, he could still make the same case as in Libya that he wasn’t engaged in hostilities.
“I have no idea if the Senate AUMF drafters intended this complexity. I doubt they did. But whatever they intend, and whoever is right between me and Peter, I urge the drafters to be clearer on this point if their aim is to affirmatively bar presidential military action in Syria,” Mr. Goldsmith wrote on LawfareBlog.com.
“If the Congress wants to terminate presidential power to use military force in Syria after 90 (or 180) days (as opposed to remove authorization for the use of such power, thereby allowing the president to fall back on his inherent powers), it can probably do so constitutionally in this context, but it must be crystal clear,” Mr. Goldsmith wrote.
He also said that the Senate’s effort to try to prohibit U.S. ground troops from being deployed to the conflict is drawn only to limit “combat troops.” Mr. Goldsmith said that could be a nod to the possibility that U.S. special forces are either already being used in Syria or will be used for intelligence activities, and for the chance that search-and-rescue operations might be needed, too.
Rep. Ileana Ros-Lehtinen, Florida Republican and the former chairman of the House Foreign Affairs Committee, questioned why her Senate colleagues included the “combat” caveat.
“Is this intentional? Will you confirm that under no circumstances we will place boots on the ground in Syria?” she demanded of Secretary of State John F. Kerry in a hearing Wednesday.
Mr. Kerry said he didn’t see any need for any troops.
“Profoundly, no. There will be no boots on the ground. The president has said that again and again. And there is nothing in this resolution that should contemplate it,” he said.
Still, the concern among lawmakers cross party lines.
Rep. Charles B. Rangel, New York Democrat, said he sees avenues for military strikes to lead to combat troops.
“No one can judge the reaction of the country that you attack, especially irresponsible people,” he said on MSNBC. “We’re dealing with a civil war. We have no idea who wants to overthrow this madman. … Once you get in, all these resolutions mean nothing. We’re going to send troops to protect our people whenever we can, and you know it and I know it.”
Both Mr. Goldsmith and Mr. Fisher said the Senate resolution also appears to give up significant constitutional ground to Mr. Obama in the “whereas” clauses when the measure says “the president has authority under the Constitution to use force in order to defend the national security interests of the United States.”
“A huge abdication by Congress,” Mr. Fisher said. “I’ve never seen such a broad abdication before in the war powers area. If the president does indeed have that authority, why did he come to Congress and request statutory authority? Moreover, if for some reason the bill fails to pass, is Congress through this draft language giving a green light to unilateral presidential action?”