09/08/2013 08:39 pm ET Updated Nov 08, 2013

A Narrow Mission in Syria Demands Narrow Language in AUMF Drafting

We can be sure of two things in this country: first, mission creep is as much of a national pastime as apple pie; and second, White House lawyers can find authorization to bomb a Middle Eastern country in the Magna Carta when they put their minds to it.

So while Congress's first and most important task in the coming weeks is to decide whether to authorize military intervention in Syria, the following question could prove equally, if not more, fateful: what kind of authorization should it provide? Sanctioning force is not a binary proposition, after all, and for those favoring a limited, surgical strike, Congress cannot be strict enough in drafting a closely tailored AUMF for Syria -- one narrower than the resolution passed last week by the Senate Foreign Relations Committee. The textual minutiae of an Authorization for the Use of Military Force don't just disappear once the president gets his Yes vote; on the contrary, the carefully chosen parameters of an AUMF can shape a military campaign.

Consider the 2001 AUMF, which gave the president a broad mandate after 9/11 to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2011." After being first deployed to sanction the invasion of Afghanistan (and appropriately so), this sentence has aged like a nice merlot. Twelve years later, it remains the primary legal foundation for endless war-making against, not only the remnants of al Qaeda, but a variety of other alleged militants, including some organizations that didn't even exist at the time of the 9/11 attacks, like the Islamist group al-Shabaab. Indefinite detention of enemy combatant suspects, drone strikes across the globe, raids breaching sovereign soil -- all of it, from one clause.

Compared to that document, the Senate Foreign Relations Committee's draft AUMF is decidedly narrower in scope (but then again, so are the St. Crispin's Day Speech and most of the monologues from Patton). And it's more limited than President Obama's proposed legislation. But that doesn't mean there aren't a few worrisome provisions.

St. Crispin's Day Speech= Narrower call to arms than 2001 AUMF

Section 2 of the Senate panel's draft authorizes the President to use the U.S.'s armed forces "as he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to: (1) respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria; (2) deter Syria's use of such weapons... and (3) degrade Syria's capacity to use such weapons in the future."

Let's walk our way through this. The "necessary and appropriate... legitimate military targets" isn't terribly restrictive, insofar as it presents a version of what is already mandated by the principles of proportionality and necessity in the jus in bello laws of war (we should note that Congress elaborates elsewhere that "necessary" should be interpreted as that which is in our "core national security interests").

The potential problem with the trinity of objectives that come next is that WMD policing can underpin a wide range of military action. The Iraq AUMF's main authorization provisions, for example, blessed the U.S.'s mission to "enforce all relevant United Nations Security Council resolutions regarding Iraq" (though admittedly it also referenced goals, such as regime change, that were broader than those in the Syria draft AUMF).

Interestingly, while President Obama and the White House have relentlessly articulated Section 2's purposes (1) and (2) to the public with great frequency, the AUMF provision's third stated goal -- to degrade Syria's chemical weapons capacities -- has been communicated with far less vigor, and for good reason. If the President were limited to missions (1) and (2), any military action that went beyond a targeted, reasonably damaging strike against Syria would begin to look suspect. But (3) changes the game a bit -- to actually affect a country's stockpile of illegal weaponry and go after its war-making capability -- that's where a Commander-in-Chief can justify broader operations.

Even more dangerous is the draft's Section 3 Limitation, which states that the AUMF "does not authorize the use of United States Armed Forces on the ground in Syria for the purpose of combat operations." The President is, however, authorized to introduce ground troops into Syria for non-combat purposes, if he deems such a step necessary and appropriate to protect our "core national security interest" and achieve the AUMF's authorized objectives. Indeed, it is entirely possible, and perhaps even likely, that non-combat operations, such as DOD Special Op forces, are on the ground in Syria already, as we speak.

Still, the AUMF draft does contain a sunset provision in Section 4, such that authorization for the use of force expires in 60 days (90, under various conditions). This is not insignificant, nor should it be easily dismissed; although historically Congress has been reluctant to let authorization expire when it meant abandoning a president, mid-stream. Even if the Syria AUMF did expire, President Obama deployed forces to Libya without consulting Congress, and has repeatedly insisted that he doesn't need legislative authorization to strike Syria.

For that very reason, many no doubt view legal parsing of any congressional authorization for the use of force as an academic waste of time. Has not every president in recent memory, from both parties, claimed independent constitutional authority from Article II to take military action, regardless of congressional support? (Indeed, the Syria AUMF even recognizes the Executive's "authority under the Constitution to use force in order to defend the national security interests of the United States.")

All of that is true, but legislative authorization is not irrelevant. Under Supreme Court precedent, the Executive's constitutional authority in foreign affairs is at a higher watermark when he is acting within the confines of statutory authorization or ambiguity than when he is rejecting congressional restrictions, or acting in their absence. Ultimately, of course, presidential action is curbed by politics, not the law, but acting within legislative parameters is good politics; and tailoring those parameters narrowly is imperative to containing the scope of another foreign adventure.

Once a commander-in-chief obtains authorization for the use of force, it's difficult, down the road, to put the genie back in the bottle. Congress would do well to tighten the cap.

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