Security Council before launching attacks. But on Syria, neither of
those options looks feasible for President Obama.
military action in response to Syria’s alleged use of chemical weapons
against its own civilians, the discussion is prompting a key legal
question: Does Mr. Obama have the authority to act without
congressional approval or a UN Security Council resolution?
In England, Prime Minister David Cameron has recalled Parliament and
asked for a government motion and vote on the appropriate British
But opinions are mixed about Obama’s need for similar backing. And the
question is not only a legal one but also political.
Legally, does Obama need congressional support? And politically,
should he desire it?
Even though President George W. Bush’s administration ultimately had
to defend the supporting evidence it produced – or misrepresented,
depending on your view – to lobby for military action in Iraq,
Congress did pass a war resolution in 2002 authorizing force.
In 1991, President George H.W. Bush also asked for and received
congressional backing for the Gulf War waged on his watch. The UN
Security Council passed a resolution as well, requiring Iraq to
destroy its nuclear, chemical, and biological weapons arsenal and pay
war reparations to Kuwait.
But the UN Security Council does not appear to be a viable avenue for
the Obama administration as it considers how to move on Syria. The
Russians, fellow members, have pledged to veto anything considered by
the UN. Their comparisons between Obama and his predecessor, often
deemed the cowboy diplomat by his opponents, are rampant.
“Obama is restlessly heading towards war in Syria like Bush was
heading towards war in Iraq,” Alexei Pushkov, the head of the Russian
lower house’s international committee, said on Twitter. “Like in Iraq,
this war would be illegitimate and Obama will become Bush’s clone.”
Sergei Lavrov, the Russian foreign minister, added his voice to the
mix: “The use of force without the approval of the United Nations
Security Council is a very grave violation of international law.”
Of course, the Constitution provides Congress with the power to
declare war. But the Obama administration would likely argue it’s not
proposing war, just, potentially, a missile strike that would
represent a slap to the regime of President Bashar al-Assad and
caution that there’s more where that came from. An effort to dislodge
him, but not a full commitment of troops, money, and time.
But some lawyers see danger signs in Obama’s push for strikes against
Syria. Obama is advocating an “imperial presidential model,” says
Jonathan Turley, a professor of public interest law at George
“We speak of United Nations support but we continue to act
unilaterally in making war on those countries who do not yield to our
demands,” Professor Turley says. “The talk of unilateral military
action reaffirms the view that the United States only acts within
international rules when it suits our objectives.”
Congress is out of session this month, and given the seemingly
irreparable fissure between the GOP-controlled House of
Representatives and the White House, it’s unclear, if probably also
unlikely, that the executive branch and lawmakers could reach
consensus on how to proceed in Syria. At least not in a timely
Congressional approval would give Obama political cover, but it
doesn’t appear to be in the cards.
“Legally the president is on very firm ground if he seeks
congressional authorization,” says Wells Bennett, a national security
law fellow at Brookings. “The question then becomes is that doable as
a political matter.”
With the situation in Syria fluid, what then might Obama use as backing?
Mr. Bennett says the president’s powers to act independently loosely
encompass several areas: national security, national interest in
providing for regional stability, and protection of U.S. property or
persons. A claim of self-defense, another possible support for
executive action, isn’t evident in this situation.
More likely, where Syria is concerned, the administration is clearly
considering the humanitarian principles involved and the tenuous
balance that seems to be slipping away in this fraught region. With
this rationale, the administration might reasonably make the claim
that action is “morally and strategically justified,” Bennett says.
He also says the most likely, though by no means perfect, historic
parallel is the 1999 NATO air campaign in Kosovo. Then, as now,
civilians were involved in atrocities perpetrated by the government in
power. Russia had ties, too, to Slobodan Milosevic’s regime, so
President Clinton was unable to secure a UN resolution. Instead, he
used NATO backing as endorsement for U.S. air strikes.
Kosovo was a serious humanitarian crisis requiring expedited action;
the Obama administration is making a similar claim for Syria.
“The trouble is that the legality of the Kosovo action was and remains
acutely controversial, too – domestically, because the president acted
alone, without a self-evident basis for doing so and without
announcing his legal rationale publicly,” Bennett says, “and
internationally, because (again) the Security Council did not sign off
and no self-defense claim was implicated there, either. So Clinton’s
actions were certainly controversial legally, then as now.”
Much as Obama’s are bound to be when, and if, he moves forward. The
president likes to echo his predecessor, President Harry Truman, in
stipulating that the buck stops with him. In the case of the Syria
firestorm and U.S. reaction to it, that couldn’t be more true.