The Panetta-Sessions Exchange on Authorization for Force in Syria

Peter Feaver has an insightful post at Shadow Government concerning yesterday's exchange between Secretary Panetta and Senator Sessions regarding the administration's position on whose authorization it must or should obtain before using military force in Syria.  The exchange was very interesting, so much so that I actually printed up the transcript and had my National Security Law students reenact it in our afternoon class.  We have just completed weeks of studying first the domestic constitutional law separation of powers issues that arise when the executive uses force without explicit Congressional authorization, and then the distinct set of international law jus ad bellum/UN Charter issues that arise when one state uses force against another without explicit UN Security Council authorization. The Panetta-Sessions exchange nicely illustrates how important it is to make plain (assuming one actually wants to be clear on the matter, which may not have been the case here for various reasons) in discussing such matters which of the two issues one is addressing at a given point in time.  In this case, as the example of Libya last spring made clear, the Obama administration takes the view that Congressional authorization is optional rather than required not just in cases of national self-defense, but--so long as the level of force involved is kept below the threshold of "war" in the sense of involving limited means, objectives, and duration (and no boots-on-the-ground)--but also in cases implicating other important national interests.  Panetta seemed to be at pains to focus on the national self-defense prong (which is uncontroversial at a high-level of abstraction), while avoiding being drawn into a discussion of the latter.  But the latter is really where the action is here.  In Libya, the important national interests relied upon by the administration included (if I recall correctly) regional stability, preventing a humanitarian disaster, and supporting the credibility of UN Security Council Resolutions.  The former are in issue here in much the same way as before, but as of yet the last factor is not part of the equation.  Having a Security Council Resolution in this limited sense seems to be an important part of the doctrinal case for the administration's view of its power to act unilaterally, but  it is far from clear that the administration would conclude that it could not act absent the UNSCR-support argument.  Still, you can see where this would cause an exchange on the topic to get pretty muddled. And then you have the very distinct question whether the administration believes itself bound by jus ad bellum/UN Charter concerns, even if we assume the constitutional separation of power concerns are addressed.  My sense is that Panetta was trying to avoid saying anything about this, by instead addressing the policy wisdom of obtaining UNSC approval if possible...though some of his language did veer in the direction of recognizing a binding legal constraint.   Anyway, it is plain that no one in that discussion really dug into the doctrinal details of how the jus ad bellum/UN Charter rules map onto the Syria scenario.