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Alan B. Morrison

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Words Matter: The Dueling Syrian War Powers Resolutions

Posted: 09/06/2013 1:39 pm

The President's draft.

The Senate draft of September 3rd.

President Obama has wisely concluded that consensus is vital before undertaking any military operations in Syria. Although he stated his belief that he has the authority to proceed on his own, his decision to seek congressional support will strengthen his position at home and abroad.

There was a serious problem with the draft Resolution that the President sent to Congress: it was a virtual blank check that he should have known Congress would never approve. The Senate Foreign Relations Committee has proposed a counter-draft that has some of the same weaknesses, but also tries to require the President to make reports and lay out his future plans for Syria to which the Senators must know he will either not agree or disregard if they are included.

On the President's side, his stated objective is "to deter, disrupt, prevent, and degrade the potential for, future uses of chemical weapons or other weapons of mass destruction." But none of the operative provisions of the draft gave any further details on how that goal would be achieved. Although the President indicated that he planned to use guided missiles from Navy ships, the draft asks for an open-ended permission "to use the Armed Forces of the United States as he determines to be necessary and appropriate." That would include putting troops on the ground, which the President has previously said he is not going to do. Section 3 of the Senate response forbids troops on the ground for "combat operations," but would allow troops for training, which is the way our involvement in Vietnam started. Both Resolutions would allow bombing by U.S. planes, as well as establishing no fly zones, both of which, unlike firing missiles, entail some risk of U.S. casualties. The Senate draft further limits the authority so that it can be used only "against legitimate military targets." Although it is not the job of Congress to choose the appropriate military tactics, but given the President's limited objectives, Congress is well within its rights in defining which kinds of military actions it is willing to authorize in order to prevent mission creep.

Other aspects of the President's draft also raise questions. Among the objectives stated in the operative portion is to "deter the use or proliferation (including the transfer to terrorists groups or other state or non-state actors)" of chemical and other weapons of mass destruction. But if the proposed operation is to be conducted by missiles fired from Navy vessels, it is not apparent how that deterrence will be achieved. Even more unclear, and farther from the kind of targeted response that the Administration has been discussing, is how the other stated goal - to "protect the United States and its allies and partners against the threat posed by such weapons" - will be achieved by guided missiles alone. Section 2(a) of the Senate draft has similar language and also authorizes the President to use the military to "degrade Syria's capacity to use such weapons in the future." If the plan to destroy Syria's capability to produce such weapons, most people would not describe that as a "limited" operation. Or perhaps these provisions are just public relations throw ins, with no expectation that this goal will be achieved. Either way, the American people need to know specifically what the President and Congress have in mind by these authorizations to be sure that they are consistent with a plan of limited intervention.

The President's draft had no time limits, but the Senate draft corrects that serious omission by setting an outside limit under this authorization of 60 days, plus a 30 day extension, subject to several conditions that are probably meaningless in terms of reigning in the President, but sure to cause controversy if the intervention is extended beyond the 60 days. Everyone would be much better off if there were a fixed deadline, with the President free to come back and ask for more, or, if he wishes to exercise his asserted authority, to continue on his own without congressional approval.

The most problematic aspects of the Senate draft are the two sets of reports that it requires from the President. First, section 5 gives the President 30 days to submit to Congress "an integrated United States Government strategy for achieving a negotiated political settlement to the conflict in Syria, including a comprehensive review of current and planned U.S. diplomatic, political, economic, and military policy toward Syria" that must include five specific categories of activities. The short timetable aside, it is hard to know whether the Senators who drafted this language are serious about this requirement. It is not as though the conflict was one in which the U.S. was directly involved or that the various parts of the Government had not been thinking about these issues and working on ideas to resolve the conflict. Do its sponsors think that putting all of this information into a single public document will have forced the President and the rest of the Executive Branch to come up with solutions that they have chosen to avoid in the past when there was no such requirement? Congress should conduct hearings on the impact of the intervention on Syria's use of chemical weapons, but forcing the President to prepare a report of this kind, presumably as a condition to get congressional support for his proposed use of military fore, is the wrong way for Congress to be in a position to make intelligent decisions about what to do in Syria.

The second requirement, in section 6 of the Senate draft, is at least directly related to the authorization itself. In addition to requiring the President to "keep Congress fully and currently informed of the use of [the] authority" granted by the Resolution, he must also submit reports 10 days after the operations begin and every 20 days thereafter that specifically include "progress achieved," the "financial costs" of the operations, and an "assessment of the impact of the operations on the Syrian's regimes chemical weapons capabilities and intentions." Again, it is hard to know how the Administration can comply with at least some parts of that requirement or what Congress will do with such reports, given the limited time frame for the overall intervention. Keeping Congress "fully and currently informed" ought to be enough, and anything more looks like either harassment or the creation of busywork.

The Senate draft is right to reject the President's request for unlimited power, but the President would be right to insist that the Senate back off some of its excessive efforts at oversight. There will be time for an assessment once the 60 days have expired. At that time the President and Congress can take a step back and evaluate what has happened and what additional steps, if any, should be undertaken. In addition, there is a real need to examine the rest of the language in both Resolutions with care so that the President is not give an unlimited go-ahead, but that he and his Administration not be so burdened with reporting requirements that they cannot properly carry out the authorization that Congress is providing.

Words matter; let the re-drafting continue.

 
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