Syria and What Exactly the Constitution Says About the Use of Force

Courtesy Wikimedia Commons

Courtesy Wikimedia Commons

President Obama has been criticized from both the left and right for his handling of the ongoing civil war in Syria. One of the most curious critiques, however, has to do with his decision to seek Congressional approval for a military strike against regime targets in Syria. Even several of his senior advisors were reportedly surprised by his decision and were opposed to seeking Congressional approval.

Since then many other prominent foreign policy practitioners have publicly endorsed this critique denouncing President Obama’s appeal to Congress. Former Defense Secretary Panetta just last week said he too would have advised against doing so observing that “this Congress has a hard time agreeing as to what the time of day is.”  Richard Haass, the President of the Council on Foreign Relations who served in senior foreign policy positions in previous administrations, characterized seeking Congressional approval “as inept as asking Putin to save him from having to send in the cruises [missiles].”  Several others have expressed concern that doing so will establish a historical precedent that will restrict future presidents in their ability to undertake military action overseas.

These former officials may certainly be correct in highlighting the difficulties and complications that are likely to result from the President’s decision to seek formal Congressional approval. Indeed presidents have ordered U.S. military actions in Korea, Vietnam, Afghanistan, Iraq, and Libya — all without a formal declaration of war from Congress.

Nonetheless, even as the U.S. Constitution recognizes the president as “Commander-in-Chief” of the armed forces, it is worth recalling that the Constitution also gives Congress broad-ranging authorities related to the military including the power “To raise and support Armies…To make Rules for the Government and Regulation of the land and naval Forces…[and] to declare War.”  Nonetheless, presidents have largely ignored the constitutional requirement for Congress to formally declare war in advance of deploying American military forces.

However, in the wake of the Vietnam War, Congress sought to reassert its authorities in this regard by passing the War Powers Act of 1973. This legislation imposed several limitations on the President’s authorities to take the country to war absent Congressional approval. In particular, this law notes that the “constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities….are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces” (my emphasis). None of these three conditions have yet been satisfied in the case of Syria. Consequently, it is entirely consistent with this later view of the wisdom inherent in the balance of powers struck within the Constitution that President Obama sought Congressional authorization before initiating an unprovoked military attack against Syrian regime forces.

It is disturbing that so many critics of the President’s decision ignore the larger implications of their recommendation that the President simply ignore Congress because it is inconvenient, may signal internal division, or could hamstring the ability of future presidents to commit the country’s blood and treasure to military adventures overseas. The U.S. Armed Forces are committed on behalf of the American people to secure and defend the country’s national interests.   Consequently, it is the people’s elected representatives in Congress who should properly have a say in these life-and-death commitments on behalf of the country.   Failure to seek Congressional backing in the absence of an immediate and direct threat suggests that the U.S. military is a tool at the disposal of an imperial presidency rather than a national instrument of power deployed on behalf of the country itself.

Recognizing this important constitutional principle, both President H.W. Bush (41) and President G.W. Bush (43) sought and secured Congressional authorizations for the use of military force in the aftermath of Iraq’s 1990 invasion of Kuwait and the 9/11 terrorist attacks by Al-Qa’ida. Although not formal declarations of war, these statements of Congressional support strengthened the political position of the country both domestically and internationally. President Obama should adhere to these examples before resorting to military attacks in the absence of a clear and urgent threat to American interests. While the outcome of an appeal to Congress cannot be guaranteed in advance, doing so reflects a solid commitment to the American values enshrined in our Constitution and would serve as a powerful example to so many people in the Middle East and elsewhere who now are struggling to build representative governments of their own.

Christopher J. Bolan, Ph.D., Col. (R), U.S. Army, is a Professor of National Security Studies at the U.S. Army War College. The views expressed are his own and do not necessarily reflect the positions of the U.S. government.

  • goedelite

    The Constitution has only historical interest. It is not respected by any of our three branches of government. It is violated by those sworn to defend it. We are governed by a gang of frauds and worse. For most of my some 65 years of political consciousness, more or less, I regarded the Constitution as I was indoctrinated in my school years: a marvelous codex for self government by a people with “inalienable” rights. I recited the Pledge of Allegiance, swore to defend my country with my life, voted regularly, and paid my taxes with care; the latter I still do! Gradually, after WWII, I grew to view for whose benefit the Constitution was crafted and how that bias was effectuated in the late 20th and early 21st centuries, as throughout our country’s history. In the past couple of decades, even that flawed reality has been displaced. What has taken its place is the absence of the rule of law, from the Constitution down to local ordinances. The rule of law requires that all persons be treated equally before it. That is no longer the case, even in approximation. The rule also requires that the law be public, known to all, and that it be carried out publicly. No longer true. We (even our representatives) don’t know what some of our laws state before they are passed, and we don’t know how our public money is spent (the Pentagon doesn’t know either!) The basis for the ratification of the Constitution was the addition of the Bill of Rights. That Bill has been violated in its 1st, 4th, 5th, 6th, and 8th amendments. The basis for Constitution’s ratification has been removed. The Constitution is no longer legitimate. We are now governed by a kind of despotism. There is no longer government by consent. We are governed by illegitimate force and no rule of law. We are ruled by frauds, thieves, killers and war-mongers.