On August 31, 2013 President Obama stood in the White House Rose Garden and asserted Syrian President Assad’s use of chemical weapons in his civil war in rebel held areas constituted “the worst chemical weapons attack of the 21st century.” He maintained that U.S. “intelligence shows the Assad regime and its forces preparing to use chemical weapons, launching rockets in the highly populated suburbs of Damascus, and acknowledging that a chemical weapons attack took place.” He concluded that “his attack is an assault on human dignity. It also presents a serious danger to our national security. It risks making a mockery of the global prohibition on the use of chemical weapons. It endangers our friends and our partners along Syria’s borders, including Israel, Jordan, Turkey, Lebanon and Iraq. It could lead to escalating use of chemical weapons, or their proliferation to terrorist groups who would do our people harm.”
Thus being the case, President Obama stated that he had “decided that the United States should take military action against Syrian regime targets. This would not be an open-ended intervention.” He proceeded to assert that the use of force would not involve a long term military engagement but rather it would “be limited in duration and scope.” The fact that the military response “would not put boots on the ground” is important because for more than century it has been the practice of presidents to use the military to meet foreign policy objectives without congressional approval. What President Obama has done is changed the legal and political dynamic of the use of presidential power to use the military in situations that are not, and this is the key, are not on the equivalent level of military engagements like the Gulf War (1991) or the Iraq war (2003) or the joint military operation in Afghanistan (2002). President Obama has said that he will seek congressional approval for a military operation that is on the level of the NATO bombing Kosovo (1998-1999) or the no fly zone in Libya (2011).
From the debate between Madison and Hamilton on President Washington’s decision to unilaterally declare American neutrality in the war between France and Great Britain (1793), to the closing of southern ports during the civil war by President Lincoln (1861), to the U.S. occupation of Nicaragua from 1912-1933, to the U.S occupation of Haiti from 1915-1934, to the U.S. occupation of the Dominican Republic from 1916-1924, to the U.S. naval blockade during Cuban Missile Crisis (October 1962), to the use of naval force against Cambodian forces to secure the release of the S.S. Mayaguez (June 1975), to the use of forces in the attempted rescue of American hostages in Iran (April 1980), to the invasion of Granada in 1983, to the bombing of Libya (April 1986) for its support of terrorist activities, to the sending of a U.S. naval force into the Gulf of Sidra to enforce international water boundaries in the face of threats from Libya (1981,1989), to the U.S. led NATO bombing of Kosovo (1998-1999), to President Obama using U.S. Forces to enforce a U.N. imposed no fly zone during the Libyan civil war (March 2011), to his sending of SEAL TEAM SIX to kill Bin Laden in Pakistan (May 2011), just to name a few in which presidents have used military force without congressional approval. It has been a political and policy fact that congressional approval is not required for a president to use the military in foreign policy. As a constitutional question, no president since Jefferson has asserted that the president is powerless to use the military to implement American foreign policy without prior congressional approval.
In a recent article in the Cumberland Law Review 43(3), I reviewed the history of opinions by prior U.S. Attorneys General, State Department Legal Advisors and the Justice Department Office of Legal Counsel from Washington to Obama and concluded that they have all consistently asserted that the president as Commander-in-Chief has exclusive, plenary and unilateral authority over foreign policy and the ability to use of the military to protect American citizens and achieve the foreign policy interests of the U.S. The Supreme Court has ratified this view in the Prize Cases (1863), United States vs. Curtiss-Wright (1936), Rasul v. Bush (2004) and Hamdi v. Rumsfeld (2004). President Obama himself made clear in the Rose Garden that although “I believe I have the authority to carry out this military action without specific congressional authorization” (and he has used such forces in the past without that authorization) he has decided to seek such authorization for political reasons not legal ones. “But having made my decision as Commander-in-Chief based on what I am convinced is our national security interests, I’m also mindful that I’m the President of the world’s oldest constitutional democracy. . . . e’ve heard from members of Congress who want their voices to be heard. I absolutely agree” and therefore “I will seek authorization for the use of force from the American people’s representatives in Congress.”
But his determination that he would seek such authorization will change the history of the progression of presidential power. No president has sought congressional approval for non long-term military engagements. While Presidents Reagan and Bush rejected the proposition that congress could limit presidential power in foreign policy and the use of the military, Presidents Carter and Clinton asserted that congressional approval would be required for military operations on the level of the world wars or the Gulf war. The development of presidential power is a historical dynamic in which what presidents do impacts the legal and political powers subsequent presidents exercise in the future. President Obama seeking authorization for a short term bombing campaign for the purpose of enforcing a worldwide ban on the use of chemical weapons (not even regime change) during war (civil or otherwise) will impact and lesson (as a political matter) future presidential ability to use such force without prior congressional approval. While no president, including Obama, has claimed that the War Powers Resolution requiring prior congressional approval for military use is constitutional, in effect President Obama has given life back to the universal presidential rejection of limits on their power.
Regardless of the present issues regarding Syria; the legal, political and policy dynamics of presidential power to use force has been changed by Obama determining that a foreign policy determination, that requires very limited military force, is subject to political debate and discussion by congress before its implementation. Whether this decision by President Obama, as a matter of policy, politics or law under the constitution, is an improvement or a detriment to the Office of the President is another issue?
Dr. Arthur Garrison is professor of criminal justice at Kutztown University. This piece is the work of Dr. Garrison and does not reflect the opinions or Kutztown University or its faculty, staff, students or alumni.