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How Administration Lawyers Are Probably Thinking About the Constitutionality of the Syria Intervention (And A Note on the Domestic Political Dangers of Intervention)

Jack Goldsmith
Saturday, August 24, 2013, 11:59 AM
President Obama famously said in 2008 that the President lacks “power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  That sentiment as presidential candidate did not stop him as President from intervening in Libya.  But the Libya intervention at least found support in a U.N.

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President Obama famously said in 2008 that the President lacks “power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  That sentiment as presidential candidate did not stop him as President from intervening in Libya.  But the Libya intervention at least found support in a U.N. Security Council resolution, a fact that the administration relied on heavily in its domestic constitutional justification for the intervention..  An intervention in Syria almost certainly will not have U.N. Security Council support.  If the President decides to intervene, would his action be constitutional?
There is no clear answer to this question because the original understanding of the relevant constitutional clauses is contested, there is no controlling Supreme Court precedent, and the political branches have not fully resolved the proper allocation of constitutional war powers.  Rather than wade into these deep waters again (my generally supportive views on the legality of the Libya intervention are set forth here and here and here and here), I thought it might be useful to spell out briefly how administration lawyers are likely thinking about the question under Executive branch precedents.
The key document will be the OLC opinion on the Libya intervention.  The Libya opinion clarified several lines of Executive branch precedent (many of which are collected here) and for the first time (for the Executive branch) invoked the 1999 NATO intervention in Kosovo as a “precedent” (a term used in the opinion) under the Constitution for uses of force.  (I explained earlier today why Kosovo was not much of a precedent under international law.)
The Libya opinion set forth a two-part test for determining when a presidential use of military force abroad is consistent with the Constitution.  First, is the “national interest” vindicated by the use of force sufficiently important?  If so, then the President can presumptively use force abroad under his powers as “Commander in Chief and Chief Executive, for foreign and military affairs, as well as national security.”  However, OLC acknowledged “one possible constitutionally-based limit on this presidential authority to employ military force in defense of important national interests—a planned military engagement that constitutes a ‘war’ within the meaning of the Declaration of War Clause may require prior congressional authorization.”  This second test – which, read carefully, OLC does commit to fully – turns on the “anticipated nature, scope, and duration of the planned military operations.”  The idea is that relatively short-term and small-scale operations abroad are not “war” and thus do not implicate the Declare War clause, but larger-scale, longer-term operations might be “war” and thus might implicate the clause.  In sum, in OLC’s view, the President’s constitutional authority is greater when the national interest in intervention is important and the operation is short term and modest.  And vice versa.
Applying this test to Syria, consider the “scale of operations” test first.  The administration appears to be considering short-term cruise missile strikes to “punish” Assad but no military operation (yet) to topple him.  It has also disclaimed any expectation of “boots on the ground.”  From the perspective of Executive branch precedent, air campaigns – especially short-term ones, and especially ones (like those involving cruise missiles or drones) that present practically no chance of American casualties – pretty easily satisfy the “anticipated nature, scope and duration” test for not impinging on congressional prerogatives.  As long as the military intervention in Syria is short term and does not involve piloted aircraft or ground troops, the legal analysis for administration lawyers should be easy.
The much harder question is the other prong: What is the important national interest in intervening in Syria?  No U.S. persons or property are at stake.  That fact alone distinguishes most executive branch precedents.  In the Libya opinion, OLC argued that the “credibility and effectiveness” of a Security Council Resolution gives rise to an important national security interest.  This is a stretch considered by itself – but in any event, there is no Security Council resolution for Syria.  Nor can OLC even invoke the “credibility and effectiveness” of a regional organization in which the USG participates (such as NATO, in Kosovo) as giving rise to an important interest that would justify the President’s use of military force.  That leaves the weakest of all interests: preservation of “regional stability” and maintenance of “peace and stability.”  These interests will of course always be present when the President is considering intervention, and thus by themselves are no limit on presidential power at all.  Such interests were invoked in Libya and in earlier OLC opinions, but they were always invoked in connection with other factors (such as the consent of the nation in question) or other interests (such as the protection of U.S. persons or property, or the preservation of the U.N. Charter or a regional security treaty commitment), and never as sufficient by themselves.
To be sure, OLC never published an opinion on the original Kosovo intervention, so we don’t know what the precise legal rationale there might have been.  (We know from several war powers reports that President Clinton believed he had constitutional authority to intervene in Kosovo, but the legal support for this belief was never made public.)  The Libya opinion, as noted, cites Kosovo as a precedent, and describes its justification in part as the need to preserve regional stability in Europe.  For this reason, and since Kosovo too lacked Security Council authorization, we can expect OLC to rely heavily on the Kosovo precedent for any intervention in Syria.  Kosovo is indeed the closest precedent.  But the fact remains that the Kosovo intervention had a NATO angle that makes it easier to justify, to some degree, than Syria.
This, then, is what is potentially important (under domestic law) about a Syrian intervention: The further watering down of the “national interest” predicate to the President’s use of force under the already expansive understanding of presidential war powers in OLC opinions.  This is the part of the argument that I expect will trouble administration lawyers most.  How to buck up this part of the argument and make the national interest appear stronger and more of a limit on presidential power?  I expect the lawyers will talk about the Syrian government’s alleged chemical weapons attacks on civilians, and the importance of preserving the “credibility and effectiveness” of the Chemical Weapons Treaty and related legal regimes, as well as, perhaps, international human rights law more broadly.  But such a rationale, if adopted by OLC, would be a big step.  For it would imply for the first time that the President has constitutional authority to use military force abroad for humanitarian interventions, even when no U.S. persons or property are involved and even when there is no U.N. Security Council interest (as in Libya) or regional security treaty interest (as in Kosovo) at stake.
Will any of these legal issues matter to the decision to intervene in Syria?  Probably not at first – especially since even congressional doves appear (for now) to be backing off of opposition to a Syrian intervention in light of the possible chemical weapons attacks.  But legal issues will loom larger later if (as seems probable) the President intervenes in Syria without securing congressional authorization.  In this light, three lessons from past humanitarian and quasi-humanitarian interventions should loom large for the Obama administration: (1) limited intervention is hard to maintain, and once the USG crosses the line to intervene in the name of human rights, it is hard to stop until the nefarious leader is removed from power; (2) the after-party to intervention and leader-removal is invariably much harder, and more expensive, and longer-lasting, and more self-defeating, than anticipated; and (3) once these unhappy consequences take root, and as time passes, Congress and the public will conveniently forget the support it gave to the President, and turn on him for what will be called by many his illegal, unauthorized, imprudent unilateral use of military force abroad.  Of course, the political costs to the President for not intervening are quite large as well.  Which is why the Presidency is such a hard job.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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