by Oded Eran,
The Congressional approval President Barack Obama requested on August 31, 2013 for limited military involvement in Syria sets a critical precedent, and raises several legal issues as well as questions about the posture of the United States in the Middle East.
Since the War Powers Act was passed in 1973, no American president has failed to express his disapproval over the law limiting his authority to go to war or even his ability to authorize low intensity actions. However, President Obama’s predecessors went to Congress – President George W. Bush did so before putting forces in Iraq in 2003 – and Obama himself did so before the action in Libya, not to request permission but to consult and brief the legislature. He was subsequently rebuked by Congress for not having asked for an extension of the 60-day mandate allotted by the War Powers Act for the involvement of American forces. There were even attempts in the House of Representatives to pass a resolution instructing the President to halt the activity of the American forces in Libya, but the vote died on the floor.
By turning to Congress at this stage, President Obama has exposed himself to a host of problems. Since Congress is on recess, the debate will begin only next week unless an emergency session is called, and the President did not ask for one. The debate in both Houses could conclude with a joint decision, but a split decision is also a strong possibility: the Senate is controlled by the Democrats and could vote differently than the Republican-controlled House. In addition, both Houses could impose further restrictions beyond the ones Obama already stipulated in announcing he will not place American soldiers on Syrian soil and that any action there will be limited in duration and scope. This gives Congress another opportunity to further erode the President’s authority as Commander-in-Chief of the United States military.
The mandate Obama is seeking from Congress – “to prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons, or components of or materials used in such weapons,” might be seen by Congress as either too restrictive, because it makes no mention of the ongoing slaughter by conventional means, or as too broad, because it could lead to use of force beyond Syria’s borders.
President Obama could even be asked by the House of Representatives and Senate to present a military plan. Although this would happen behind closed doors, leaks designed to embarrass the President and make it harder for him to give the order are a distinct possibility.
Since the start of the Syrian uprising President Obama has projected decided unwillingness for even limited military involvement, even as the number of Syrian fatalities passed the 100,000 mark. Turning to Congress could highlight America’s image as a superpower seeking to avoid the use of military force. Obama himself made that amply clear when he said he was voted into office in order to get the American forces out of Iraq and Afghanistan. The President is thereby bringing the image of his country still closer to that of Western Europe – nations with military power that will do whatever it takes to avoid using it, even when the justification for its use is beyond any shadow of a doubt.
NATO has adopted the unofficial policy of its former secretary general: the organization will use military force for missions such as the one in Syria only if it is asked to do so and if it receives the mandate for involvement from the UN Security Council. Obama’s request of Congress makes no mention of joint action with other nations, but members of Congress who seek to complicate matters for the President could add NATO or other international involvement as a condition. Postponing American action is liable to tempt Russia to begin a debate or even filibuster in the Security Council or engage in other moves designed to undermine any military action, even if this means an explicit condemnation of Syria – provided it is not within Chapter 7 of the UN Charter.
The United States is liable to find itself acting not only without the Security Council’s mandate but also contrary to the position of many Council members. Russia could also pressure President Assad to soften his conditions for a Geneva 2 convention, in order to buy time and delay any American military action.
This situation likewise poses the question of ramifications for America’s response to Iran’s continuing nuclear progress. The House of Representative and Senate will contend that if in the case of Syria the President asked for their approval, he will be doubly obligated to do so regarding Iran – a much more serious case in terms of possible implications for United States national security – and wait to receive their green light for even the most limited military move. As with the Syrian precedent, any such request and consequent debate will let Iran take steps designed to delay military intervention and take defensive precautions, although the latter would be limited because most of the targets are permanent installations.
Inasmuch as opposition to the use of military force increased among America’s allies, there is no doubt that the vote in the British parliament against military action in Syria and President Obama’s appeal to Congress will affect these countries’ ability to invoke the military option against Iran’s continuing military nuclear program.