Obama's flawed case for a Syria strike

By Ari Melber We should not bomb Syria without a vital national security interest and a precise foreign policy objective. Right now, the Obama administration has not established either. Under the United States' legal and historical precedents, a president faces the highest burden for justifying military attacks that are essentially optional: actions not required for self-defense and which are not in response to an attack on the United States — or imminent threat of such attack. Intervening in the Syrian civil war fits that difficult category. Even supporters of Syrian intervention do not claim it is required for U.S. security, since the Assad regime has not directly attacked the United States or its interests. In fact, the mission's stated goal doesn't attempt to qualify as traditional self-defense. The aim is to "prevent or deter" Syria from killing its citizens with chemical weapons, according to the Obama administration's original draft resolution. The White House has every right to make the humanitarian case for intervention, a rationale pressed earnestly in Bosnia and dishonestly in Iraq. This altruistic argument, however, has rarely provided the sole policy or legal justification for a proactive attack on a sovereign nation. That's true both in American history and under international law. Given that context, the administration's piecemeal case for limited intervention is particularly hard to accept. Administration officials are proposing a military operation that claims to fall short of war while sidestepping any notion of conventional victory over the Assad regime. The potential attack is "not about regime change," White House officials said last week. Thus the draft resolution limits the use of force for containing the "use of chemical weapons or other weapons of mass destruction in the conflict in Syria." Those promised boundaries make the operation sound like far less of a commitment than declaring war. And as a legal matter, those boundaries mean explicit congressional approval is probably not required. But this approach risks boxing the entire effort in as a tactical campaign with no foreign policy strategy. Attacking Assad's infrastructure without aiming at his authority leaves the operation without a long-term goal. Even that assumes a "best case," limited attack. The larger risk is that promised boundaries will prove illusory. Yes, the administration can sell intervention as a surgical strike — "quick" and "limited," an antidote to the mission creep or the "third war" many Americans wish to avoid. Does anyone familiar with military history, however, believe intervention can be so tightly scripted? Surely if Syria responded to a foreign attack by retaliating against the United States or its interests — which is the right of any sovereign nation under attack — then U.S. objectives and operations could shift dramatically. Given all the talk in Washington, these questions are moving quickly past whispered hypotheticals. On Monday, Syrian officials said they would respond to any U.S. bombing by attacking American ships in the Mediterranean Sea, in coordination with Hezbollah. (The Lebanese Shi'ite group, which has fought Israel since the early 1980s, backs Assad in the civil war.) That reaction would risk a wider conflict with the United States, and possibly Israel or Iran. Obama can genuinely propose a limited operation — but no president can guarantee one. And once Congress hands over authority to attack another country, it is hard to take back. That is a well known political dynamic, since it's hard to de-fund even unpopular wars. It is also a legal dynamic, because our national security laws usually give Congress only one chance to hit the brakes. Congress' role in authorizing military actions usually operates as a switch before a conflict — rarely during or after it. Congress may reject the administration's resolution, like any executive proposal. But once approved, it opens the door to a potentially long and wide conflict. The White House draft uses several different words to stress a limited chemical weapons response. As a legal trigger, however, it uses the key provision of the War Powers law to grant war-like authority for an open-ended military operation. For an attack on Syria, the resolution states that Congress is granting "specific statutory authorization within the meaning of Section 5(b) of the War Powers Resolution" That is the crucial section of the War Powers law that limits unilateral war. It requires the president to begin rolling back any unilateral military operations after two months, unless specific conditions are met. Those conditions include a declaration of war or Congress passing a "specific authorization" of force. So the resolution gives the president the explicit power of an authorized war under the law, but without using those words. There is no clear case for intervention here, and definitely not for intervention under those terms. Some members of Congress want to tighten the resolution, including explicitly limiting the length of combat and barring regime change as a military objective. There is plenty to improve here, and that is a worthwhile part of the public and congressional debate. For example, the resolution doesn't limit geographic targets to Syria's borders, a concern considering that the 2001 Afghanistan resolution has been applied to attacks in Yemen and Pakistan. But we should be careful to avoid taking too much comfort in revisions to the resolution. Congress cannot wordsmith the administration out of a flawed strategy, nor amend foreign policy precedents with a narrow authorization. Once force is authorized, there are very few practical limits on the executive, and presidents in both parties have claimed broad military powers. "Authorizing strikes for 60 days will not prohibit the president from using force beyond 60 days," explains Jack Goldsmith, a Harvard law professor and former Justice Department official, because modern presidents believe they have "independent, inherent" constitutional authority to conduct military campaigns. Ultimately, if Congress really wants to limit an open-ended commitment in Syria, its best opportunity is to vote "no" from the start. (We should not bomb Syria without a vital national security interest and a precise foreign policy objective. Right now, the Obama administration has not established either. Under the United States' legal and historical precedents, a president faces the highest burden for justifying military attacks that are essentially optional: actions not required for self-defense and which are not in response to an attack on the United States — or imminent threat of such attack. Intervening in the Syrian civil war fits that difficult category. Even supporters of Syrian intervention do not claim it is required for U.S. security, since the Assad regime has not directly attacked the United States or its interests. In fact, the mission's stated goal doesn't attempt to qualify as traditional self-defense. The aim is to "prevent or deter" Syria from killing its citizens with chemical weapons, according to the Obama administration's original draft resolution. The White House has every right to make the humanitarian case for intervention, a rationale pressed earnestly in Bosnia and dishonestly in Iraq. This altruistic argument, however, has rarely provided the sole policy or legal justification for a proactive attack on a sovereign nation. That's true both in American history and under international law. Given that context, the administration's piecemeal case for limited intervention is particularly hard to accept. Administration officials are proposing a military operation that claims to fall short of war while sidestepping any notion of conventional victory over the Assad regime. The potential attack is "not about regime change," White House officials said last week. Thus the draft resolution limits the use of force for containing the "use of chemical weapons or other weapons of mass destruction in the conflict in Syria." Those promised boundaries make the operation sound like far less of a commitment than declaring war. And as a legal matter, those boundaries mean explicit congressional approval is probably not required. But this approach risks boxing the entire effort in as a tactical campaign with no foreign policy strategy. Attacking Assad's infrastructure without aiming at his authority leaves the operation without a long-term goal. Even that assumes a "best case," limited attack. The larger risk is that promised boundaries will prove illusory. Yes, the administration can sell intervention as a surgical strike — "quick" and "limited," an antidote to the mission creep or the "third war" many Americans wish to avoid. Does anyone familiar with military history, however, believe intervention can be so tightly scripted? Surely if Syria responded to a foreign attack by retaliating against the United States or its interests — which is the right of any sovereign nation under attack — then U.S. objectives and operations could shift dramatically. Given all the talk in Washington, these questions are moving quickly past whispered hypotheticals. On Monday, Syrian officials said they would respond to any U.S. bombing by attacking American ships in the Mediterranean Sea, in coordination with Hezbollah. (The Lebanese Shi'ite group, which has fought Israel since the early 1980s, backs Assad in the civil war.) That reaction would risk a wider conflict with the United States, and possibly Israel or Iran. Obama can genuinely propose a limited operation — but no president can guarantee one. And once Congress hands over authority to attack another country, it is hard to take back. That is a well known political dynamic, since it's hard to de-fund even unpopular wars. It is also a legal dynamic, because our national security laws usually give Congress only one chance to hit the brakes. Congress' role in authorizing military actions usually operates as a switch before a conflict — rarely during or after it. Congress may reject the administration's resolution, like any executive proposal. But once approved, it opens the door to a potentially long and wide conflict. The White House draft uses several different words to stress a limited chemical weapons response. As a legal trigger, however, it uses the key provision of the War Powers law to grant war-like authority for an open-ended military operation. For an attack on Syria, the resolution states that Congress is granting "specific statutory authorization within the meaning of Section 5(b) of the War Powers Resolution" That is the crucial section of the War Powers law that limits unilateral war. It requires the president to begin rolling back any unilateral military operations after two months, unless specific conditions are met. Those conditions include a declaration of war or Congress passing a "specific authorization" of force. So the resolution gives the president the explicit power of an authorized war under the law, but without using those words. There is no clear case for intervention here, and definitely not for intervention under those terms. Some members of Congress want to tighten the resolution, including explicitly limiting the length of combat and barring regime change as a military objective. There is plenty to improve here, and that is a worthwhile part of the public and congressional debate. For example, the resolution doesn't limit geographic targets to Syria's borders, a concern considering that the 2001 Afghanistan resolution has been applied to attacks in Yemen and Pakistan. But we should be careful to avoid taking too much comfort in revisions to the resolution. Congress cannot wordsmith the administration out of a flawed strategy, nor amend foreign policy precedents with a narrow authorization. Once force is authorized, there are very few practical limits on the executive, and presidents in both parties have claimed broad military powers. "Authorizing strikes for 60 days will not prohibit the president from using force beyond 60 days," explains Jack Goldsmith, a Harvard law professor and former Justice Department official, because modern presidents believe they have "independent, inherent" constitutional authority to conduct military campaigns. Ultimately, if Congress really wants to limit an open-ended commitment in Syria, its best opportunity is to vote "no" from the start. (Ari Melber is a co-host of "The Cycle" on MSNBC. He is an attorney and correspondent for The Nation magazine. Opinions expressed are his own.)