Sept. 6 (Bloomberg) -- The White House draft of a measure granting President Barack Obama the authority to attack Syria, sent to Congress last week, was far too broad. Now some critics are saying that the Senate’s rewritten resolution, approved by the Foreign Relations Committee this week, is too narrow.
Consider me skeptical. The lesson of history is clear: Whatever limiting language Congress adopts, a determined chief executive will read it to justify pretty much whatever he wants it to justify.
Presidents, when they choose, have always found ways to broaden the authority granted them by Congress, especially in matters of war and peace -- where, as the political scientist Kenneth R. Mayer details in his book “With the Stroke of a Pen: Executive Orders and Presidential Power,” limiting language rarely limits.
Shortly before the U.S. entered World War II, for example, President Franklin Roosevelt issued an executive order creating an extensive system of classification for defense information. He cited as his authority a statute granting him narrow discretion to protect the details of the locations of military bases.
In 1945, Congress passed a law prohibiting the use of appropriated funds for agencies created without legislative approval. The very next year, President Harry Truman used an executive order to establish the Central Intelligence Group, avoiding the word “agency” to get around the statute.
When concern turns to the actual use of military force, there is a grand American tradition of what we might call bifurcated grants of war power, in which the Congress in one clause circumscribes the president’s authority and, in the next, grants him the discretion to do what circumstances demand.
The bifurcated war resolution has a long history. In 1802, for example, President Thomas Jefferson asked Congress for authorization to use naval forces to stop the Barbary States from holding captured U.S. merchant ships for ransom and enslaving their crews. Congress responded with alacrity, adopting legislation that permitted the president to take measures “as may be judged requisite ... for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the Mediterranean and adjoining seas.”
But the resolution didn’t stop there. Congress also authorized Jefferson to take Barbary ships and other goods in retaliation, and “to cause to be done all such other acts of precaution or hostility as the state of war will justify, and may, in his opinion, require.”
This last clause is in effect an unfettered grant of discretion, all but revoking the seeming limits created by the previous clause. The bifurcated resolution has become a model in the transfer of war powers from Congress to the president. One finds similar language, for example, in the Gulf of Tonkin Resolution of 1964 (“all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression”) and the 2002 joint resolution authorizing the use of force in Iraq (“necessary actions against international terrorists and terrorist organizations”).
The drafters of the Senate’s Syria resolution seem determined to avoid so broad a grant of authority. The question is whether they have succeeded. Let’s look at the Senate’s language:
“The President is authorized ... to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and specified manner against legitimate military targets in Syria, only to: (1) respond to the use of weapons of mass destruction by the government of Syria 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 United States allies and partners against the use of such weapons; (3) degrade Syria’s capacity to use such weapons in the future; and (4) prevent the transfer to terrorist groups or other state or non-state actors within Syria of any weapons of mass destruction.”
Sounds narrow, right? Wrong.
Consider a simple hypothetical. A repressive foreign leader -- call him Bad Guy -- is concerned that his population might rebel. Impressed by Syria’s use of sarin gas to kill hundreds or thousands of people, Bad Guy decides to try to obtain some of that regime’s chemical weapons. Could the U.S. president order a strike against Bad Guy?
You might think that the resolution is written to avoid this. In this, you would be mistaken. The president could reason that Bad Guy would never have attempted to obtain any of Syria’s WMD stocks but for its regime’s use of nerve gas. Attacking Bad Guy, the president says, is therefore part of responding “to the use of weapons of mass destruction by the Syrian government in the conflict in Syria.”
You might object that the resolution refers explicitly to “legitimate military targets in Syria.” And the restriction on transfers explicitly refers to terrorists and other actors “within Syria.” How on earth could this language be considered a grant of authority to attack targets outside of Syria?
Very easily, I’m afraid. The president might say, for example, that Congress could not possibly have intended that Syria be able to protects its chemical weapons stocks simply by moving them over the border -- say, to Lebanon or, the way things are now, even Iraq. Surely (the president could assert) Congress wanted those weapons destroyed wherever they might wind up.
And if you think the president would never attempt so far-fetched a justification, I recommend that you go back and study the resolution that authorized the use of military force passed after the Sept. 11 attacks, relied on by the Obama administration as legal justification for its wider drone war. Search for any hint of authority for drone attacks against persons or groups not thought to be involved in Sept. 11. (Hint: You won’t find it.)
This is not to say that the current administration stretches the law any further than did its predecessors. My point, rather, is that an authorizing resolution is the wrong place to try to limit the president’s discretion -- not because one can’t invent language, but because it isn’t going to work.
I am not necessarily a fan of tying the hands of the commander in chief as U.S. forces go into battle. If it’s going to be done, however, the most effective tool for curtailing presidential discretion is the appropriations power.
According to the Congressional Research Service, Congress has used this power successfully several times: to prohibit the introduction of ground forces in Cambodia during the Vietnam War, as well as to end direct U.S. participation in the war itself; to prevent the reintroduction of U.S. forces into Somalia after 1993’s “Black Hawk down” incident in Mogadishu, Somalia; and to keep the Bill Clinton administration from using “ground elements” in the Balkans in 1999 (except to rescue downed airmen).
The ability to agree on an appropriations rider isn’t some relic of a bygone age of bipartisan cooperation. The many provisions prohibiting the use of appropriated funds to transfer prisoners from Guantanamo Bay, Cuba, to the U.S. have been adopted regularly since 2009, when the Democrats controlled both houses of Congress.
In short, even in these fractured times, the House and the Senate know how to stop the president, even in matters of national security, when they really want to. They just don’t seem to want to.
(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama” and the novel “The Impeachment of Abraham Lincoln.” Follow him on Twitter at @StepCarter.)
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