Month: September 2013

Jack Goldsmith analyzes the administration’s proposed Authorization for Use of Military Force (AUMF):

The proposed AUMF focuses on Syrian WMD but is otherwise very broad.  It authorizes the President to use any element of the U.S. Armed Forces and any method of force.  It does not contain specific limits on targets – either in terms of the identity of the targets (e.g. the Syrian government, Syrian rebels, Hezbollah, Iran) or the geography of the targets.  Its main limit comes on the purposes for which force can be used.  Four points are worth making about these purposes.

First, the proposed AUMF authorizes the President to use force “in connection with” the use of WMD in the Syrian civil war. (It does not limit the President’s use force to the territory of Syria, but rather says that the use of force must have a connection to the use of WMD in the Syrian conflict.  Activities outside Syria can and certainly do have a connection to the use of WMD in the Syrian civil war.).  Second, the use of force must be designed to “prevent or deter the use or proliferation” of WMDs “within, to or from Syria” or (broader yet) to “protect the United States and its allies and partners against the threat posed by such weapons.”  Third, the proposed AUMF gives the President final interpretive authority to determine when these criteria are satisfied (“as he determines to be necessary and appropriate”).  Fourth, the proposed AUMF contemplates no procedural restrictions on the President’s powers (such as a time limit).

Jeez. No wonder Larison thinks the authorization is too broad:

As it is currently written, the resolution likely wouldn’t pass because it requests authorization for what could potentially be much more than a few “limited” strikes. If this resolution passed, Congress would be effectively signing off on U.S. strikes against targets both in and outside of Syria for as long as the war in Syria lasts. That isn’t what the administration claims that it wants to do, but why would anyone take their word for it?

Daniel Nexon argues that broad authorizations are necessary:

In fact, successful compellence against Syria almost certainly requires a credible threat of escalation. The biggest threat posed by potential US intervention? That it directly or indirectly leads to the overthrow of the current regime. Crafting an AUMF that undercuts that threat will almost certainly be counterproductive when it comes to the Administration’s preferred outcome in Syria: forcing the regime to accept a negotiated settlement with the rebels.

The Senate is already revising the administration’s AUMF to make it more limited. Goldsmith believes that this will prove difficult. With any luck, this could be the sticking point – or the way toward a deal.

David Kenner reviews some newly declassified intelligence from the French, who support a strike on Syria:

While U.S. officials have conceded that they don’t know if Assad himself ordered the use of chemical weapons, the French assessment rebuts claims that the Aug. 21 attack could have been the work of a rogue officer. France traces Syria’s chemical weapons program to “Branch 450” of the innocuously named Center of Scientific Studies and Research, which Israel bombed in May. Only Assad and top members of his regime, the report says, have authority to order the branch to employ its deadly weapons. Nor does the report give credence to the idea of a rogue element within Branch 450 itself: The unit, it says, is “composed solely of Alawite military personnel … [and] distinguished by a high level of loyalty to the regime.”

Kenner also reviews the possible logic behind such a brazen attack:

While some analyses suggested the rebels were making gains in Damascus, the conventional wisdom was that Assad was making military progress without the use of chemical weapons. The French report, however, suggests that Assad’s position in the capital was weaker than had been supposed: “Our information confirms that the regime feared a large-scale opposition attack in Damascus,” the assessment reads. The attack, it says, was intended to “secure strategic sites” that would allow Assad to control the capital, such as the Mezze military airport.

The French also insist that Assad launched an additional assault to destroy the evidence. Meanwhile, Matthias Gebauer reports on a phone call intercepted by Germany’s foreign intelligence agency:

[Bundesnachrichtendienst (BND) head Gerhard Schindler] said that the [agency] listened in on a conversation between a high-ranking member of the Lebanese militia Hezbollah, which supports Assad and provides his regime with military assistance, and the Iranian Embassy. The Hezbollah functionary, Schindler reported, seems to have admitted that poison gas was used. He said that Assad lost his nerves and made a big mistake by ordering the chemical weapons attack.

The new information from the BND could become important in the coming days. Thus far the US has only noted that after the attack, intelligence agencies had intercepted internal government communications indicating concern about a possible UN inspection of the site. The telephone conversation intercepted by the BND could be an important piece in the puzzle currently being assembled by Western intelligence experts.

Earlier Dish on the intel question here.

Joe Weisenthal explains why it fizzled out:

In 2011, Professors Michael T. Heaney and Fabio Rojas published a study titled: The Partisan Dynamics of Contention: Demobilization Of The Antiwar Movement In The United States 2007-2009 which looked at nearly 6,000 surveys of anti-war demonstrators between January 2007 and December 2009.

This one chart [above] basically tells the whole story. The percentage of Democrats attending anti-war protests collapsed at the end of 2008, and in early 2009. As Democrats are the biggest block of any of these groups, this desertion of the Democratic party was the major blow.

Garance thinks Democrats may oppose Obama:

Obama never has to stand for election again, but the jockeying for 2016 is well under way. It’s possible Obama’s intervention in Libya would have earned louder opposition from Democrats and liberals if the president had not also still faced reelection, which doubtless tempered some voices. That he won’t again opens up the floodgates of criticism from people who expect to be standing on the political stage long after he is gone, as well as by some who hope to take his chair.

Pareene, on the other hand, doubts that Democrats will take a stand:

[A] Syria campaign probably won’t create the conditions for a future Obama to stake out an opportunistic left-wing position and ride it to the presidential nomination in 2016. Americans won’t be dying by the hundreds and we won’t be committing ourselves to a drawn-out and bloody occupation. (Well, let’s hope we won’t be, I guess.) We’re going to launch missiles for a few days and then quit, according to the latest plans. That’s not quite a war you can hang a presidential campaign on. Probably not even a congressional campaign.

Right now liberals (and the political press) are letting people like Rand Paul meet the demand for America to have a less “muscular” foreign presence. (This isn’t really surprising: Liberal antiwar voices are pretty much always marginalized in the United States, by both hawkish Democrats and the press,) The right-wing interventionists are terrified at how much his position resonates with people. But I’d put money on the next presidential election involving two supporters of military action against Syria

Marty Lederman thinks “that President Obama’s decision to ask Congress for authorization for the use of force in Syria is to be commended, and welcomed”:

Presidents will certainly continue to assert the power to act unilaterally, subject to statutory and international law constraints.  But if and when a President wishes to act for a reason that has not previously been the basis for unilateral action (such as to degrade another nation’s ability to use certain weapons), and/or in a manner that violates a U.S. treaty obligation, past practice will support obtaining congressional authorization, even as the question of the President’s unilateral authority in such circumstances remains untested and unresolved.

I agree – and in fact, think this move could make this moment in US history a possibly pivotal one. Jack Goldsmith weighs in:

The constitutional problem with pure humanitarian interventions – and especially ones (like Kosovo and Syria) that lack Security Council cover, and thus that do not implicate the supportive Korean War precedent – is that Presidents cannot easily articulate a national interest to trigger the Commander in Chief’s authority that is not at the same time boundless.  President Obama, like President Clinton before him in Kosovo, had a hard time making that legal argument because it is in fact a hard argument to make.  That is one reason (among many others) why I think it was a good idea, from a domestic constitutional perspective, for the President in this context to seek congressional approval.

Andrew Rudalevige notes that, since the 1973 War Powers Resolution (WPR), “actions where prior congressional authority was not sought have some characteristics in common not present in the Syrian case”:

First, they have a rationale in self-defense, even imaginatively defined. In the WPR, presidents are given authority to use force when there is (1) a declaration of war; (2) a specific statutory authorization; or (3) ”a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Obviously options (1) and (2) can be based on any rationale, or none; but they do not – yet – apply to the Syrian situation. So one question facing Obama was whether (3) would cover sufficient ground. Some cases are easy, as with the (failed) rescue attempt of the American hostages in Iran in 1980 or the 1998 missile strikes after the African embassy bombings. In other cases presidents have been very generous in their interpretation of “attack upon the United States.”  The 1989 invasion of Panama was explained by President Bush as a response to General Manuel Noriega’s “reckless threats and attacks upon Americans in Panama [which] created an imminent danger to the 35,000 American citizens” there. The 1983 invasion of Grenada was publicly justified by President Reagan along similar lines: “first, and of overriding importance, to protect innocent lives,” and not just any lives: “American lives are at stake.” Still, it’s hard to stretch to this from the Syrian rationale, sold before today largely as punishment for the violation of international norms.

Second – in addition or instead—they had multilateral support, a cause of action endorsed by the international community, normally with a humanitarian component. Even Reagan in Grenada was careful to stress that the US had been invited to respond, that it was doing so in concert with other nations in the region (whose battleship inventory was perhaps a bit thin), and that ”this collective action has been forced on us by events that have no precedent in the eastern Caribbean and no place in any civilized society.” Likewise in Somalia (1992), Kosovo (1999), and Libya (2011), one could cite both humanitarian concerns, and treaty obligations (e.g. with the United Nations, NATO, or both). The WPR specifically rules out inferring authority to use force from such obligations (see Section 8(a)(2).)  Nonetheless, they muddy the legal waters.

In Syria, Obama has neither of these covering contexts to justify action.

Drum wishes that Obama had gotten authorization on all of his interventions abroad:

The real reason I’m disappointed is that Obama had a chance to set a new precedent in foreign policy and didn’t take it. Whatever else we liberals might think about George Bush’s military acumen, he left office having explicitly asked Congress to authorize both of his major military actions before he undertook them. If Obama had acknowledged the War Powers Act as good law, acknowledged Congress’s constitutional role in warmaking, and then voluntarily asked Congress for authorization of his proposed military operations in both Libya and Syria without being pressured into it, there’s a good chance that future presidents would feel bound to do the same. This is the way norms become settled, and this is a norm that would have truly changed Washington DC for the better.

But he didn’t do that, despite his apparent belief in 2007 that it was the right thing to do. It was a missed chance, and a disappointing one. I had hoped for better.

Me too. But that doesn’t mean sacrificing the opportunity now.