Syria and presidential power

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, made a compelling case today in The Atlantic that regardless of whether President Barack Obama gets Congressional approval for some kind of military strike in Syria, he will have effectively increased presidential power to declare war, rather than, as some have contended, scaled it back:

If Congress says no to Obama, it will not significantly restrain future presidents from using military force. At best, it will preserve current understandings about presidential power. If Congress says yes, it may bestow significant new powers on future presidents — and it will also commit the United States to violating international law. For Obama plans to violate the United Nations Charter, and he wants Congress to give him its blessing.

According to the straight forward United Nations Charter — Syria is a member state — a U.N. security council, not an individual nation,

shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. — Chapter VII, Article 39

and according to articles 41 and 42 of the same chapter,

41. The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

42. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

This clearly states that other measures of mitigation should be attempted before any military strikes can occur, and if and when the Security Council determines that force is necessary,

46. Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee.

What is conspicuously missing from the charter is that individual member states may not decide independently and out of the purview of the United Nations Security Council — which is the United States in the case with Syria — that military action should be taken against another member state. Further, Syria has not threatened the U.S., so there has not been an act of aggression in theory or in practice. Still, Obama has said given the U.N.’s apparent ineptness in holding Syria accountable, the U.S. has the authority to take action.

Not so, said U.N. Secretary-General Ban Ki-moon:

The use of force is lawful only when in exercise of self-defense in accordance with Article 51 of the United Nations charter and/or when the Security Council approves of such action. That is a firm principle of the United Nations.

With or without Congressional approval, Obama seems resigned to move forward with plans to crack down on Syria, and I would wager that if he does, future American presidents will have near limitless power to police the world. George W. Bush’s notorious authorization for the use of military force in Iraq still stands as a black eye in American foreign policy. A new AUMF has been issued on Syria.

Here is Balkin again:

… the Syria episode offers Obama­ and future presidents­ new opportunities for increasing presidential power. Obama has submitted a fairly broad authorization for the use of military force (AUMF) proposal to Congress. It is not limited either temporally or geographically; it does not specifically exclude the use of ground troops; and it requires only that the president determine that there is a plausible connection between his use of force and the use of weapons of mass destruction in the Syrian civil war. If Congress adopts this proposal, President Obama ­and every future president ­can simply add it to the existing body of AUMFs and congressional authorizations.

While I’m not an isolationist by any stretch and think that the United States has a role to play on the world stage, we may be peering into the diplomatic abyss on this one. America should be partnering with other developed nations in identifying the best steps on moving forward when issues like the one in Syria arises instead of going it alone. Unfortunately, Obama’s star seems to be fading, even after finding and killing Osama bin Laden and avenging the lives of 3,000 Americans, and he seems to need or want another strong military success on which to hang his legacy, particularly after the Benghazi debacle. One has to ask: Where is the Obama who castigated Bush for his strong arm approach to foreign policy and where is the Obama who touted the use of diplomacy over force? Was that not essentially his raison d’être on foreign policy?

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Addendum: Chapter 1, Article 2, number 4 of the United Nations charter makes it illegal for member states to wage strikes against other member states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

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