I am still waiting to see what specifically is planned, but it is hard to imagine military intervention in Syria which will be much more than symbolic in opposition to the use of sarin gas. While I question Obama’s military plans, he deserves tremendous credit for his decision to honor the Constitution and take the matter before Congress. Walter Shapiro discussed the significance of this:
…the president, a former part-time constitutional law professor, may have also belatedly recalled the wording of Article One, Section Eight of the Constitution that grants Congress the sole power “to declare war.”
But whatever Obama’s underlying motivations and however the Syrian vote plays out on Capitol Hill, the president’s decision to go to Congress represents an historic turning point. It may well be the most important presidential act on the Constitution and war-making powers since Harry Truman decided to sidestep Congress and not seek their backing to launch the Korean war.
Just a few days ago, before Obama’s decision was known, legal scholars from both the right and the left were in agreement that waging war over Syria – no matter how briefly – without congressional approval would bend the Constitution beyond recognition.
Jack Goldsmith, a Harvard law professor who served as a Bush administration lawyer during the run-up to the 2003 Iraq war, wrote in the legal blog Lawfare, “The planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.” And liberal constitutional scholar Garrett Epps, writing for the Atlantic , concluded, “It’s pretty clear that an American attack would violate the Constitution.”
Shapiro summarized past decisions by presidents to use military power and concluded:
No American lives are in danger and the national security threat is hard to identify. Not only is NATO not participating, but also neither are the Brits, the United State’s closest diplomatic ally. With Russia serving as Assad’s enabler, there will be no Security Council resolution or UN mandate.
Every time a president employs questionable legal arguments to wage war, it becomes a valuable tool for the next Commander in Chief impatient with the constitutional requirement to work through Congress. That’s why it would have been so dangerous for Obama to go forward in Syria without a congressional vote or the support of the UN or NATO. It is as much of a slippery slope argument as the contention that Iran, say, would be emboldened with its nuclear program if America did not punish Assad’s chemical attacks.
Assuming Obama wins congressional approval, America’s coming attack on Syria is designed to set a lasting precedent: No government can ever again use chemical, biological – let alone nuclear – weapons without facing devastating consequences. As Obama asked rhetorically in his Saturday Rose Garden statement, “What message will we send if a dictator can gas hundreds of children to death in plain sight and pay no price?”
But Obama’s decision to seek congressional approval may prove to be an even more important precedent. Future presidents – as they consider unilateral military action without American security hanging in the balance – will have to answer, “Why didn’t you go to Congress like Obama did over Syria?”
Confronted with a series of wrenching choices over Syria, Obama chose the course that best reflects fidelity to the Constitution as written. Hopefully, in the days ahead, taking that less traveled road by presidents will make all the difference.
I am not optimistic that any military action will make a difference as to whether WMD is used by future dictators. I am more hopeful that Obama is setting an important precedent here which may affect future decisions by American presidents to go to war. Next I am hoping that by the time Obama leaves office we have a better system for the institutionalization of conducting war in the modern era on issues ranging from drone strikes to surveillance. It is also amusing to see conservatives who have been making absurd claims of dictatorship under Obama now attack him for his decision to follow the Constitution.
