“While I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective,” Obama said in his comments to the nation, with Vice President Biden by his side.
The Executive does not, in fact, require Congressional consent to commence all forms of military action. Under the War Powers Resolution of 1973, the President can conduct military operations for up to 60 days without receiving Congressional consent. However, the WPA only allows for the President to do so under unique circumstances:
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, 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.
There is nothing under the WPA to suggest the President has the authority to conduct military operations in Syria without Congressional consent, and one has to believe he and his advisers knows this. So what authority could he be referring to?
Possibly the AUMF. Here is the relevant portion of that act:
Section 1 – Short Title[edit source]
This joint resolution may be cited as the ‘Authorization for Use of Military Force’.
Section 2 – Authorization For Use of United States Armed Forces
(a) IN GENERAL- That the President is authorized 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, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
And to make the AUMF – Syria nexus, here is a post from the Lawfare blog from March of this year:
The WSJ has a story (behind paywall, I think) about the CIA “expanding its role in the campaign against the Syrian regime by feeding intelligence to select rebel fighters to use against government forces.” The point of the CIA aid is to “stem the rise of Islamist extremists in Syria by aiding secular forces,” and in particular the extremist group is the al Nusra Front (which I have discussed here and here).
The CIA’s expanding role in Syria is interesting enough, but here is what caught my eye in the story: “The move comes as the al Nusra Front, the main al Qaeda-linked group operating in Syria, is deepening its ties to the terrorist organization’s central leadership in Pakistan, according to U.S. counterterrorism officials” (my emphasis). Moreover:
U.S. counterterrorism officials said they have seen a growth in communications among operatives from al Nusra Front, al Qaeda in Iraq and al Qaeda’s central leadership in Pakistan. Officials also report growing numbers of al Qaeda fighters traveling from Pakistan to Syria to join the fight with al Nusra.
The ties to al Qaeda’s central operations have become so significant that U.S. counterterrorism officials are debating whether al Nusra should now be considered its own al Qaeda affiliate instead of an offshoot of al Qaeda in Iraq, as it has generally been viewed within the U.S. government, according to a person familiar with the debate.
In short, al Nusra Front is on the road to becoming – if it has not already become – a terrorist group associated with al Qaeda that falls within the AUMF, and thus against which Congress has authorized the president to use military force. That is significant enough by itself, but all the more so because (as the WSJ also reports) “U.S. and European officials said they fear that the al Nusra Front, which has seized control of swaths of northern Syria, could dominate the country once Mr. Assad falls.”
By mid-summer there was concern the White House would move in that direction. From the Hill back in June:
Last month, Pentagon lawyers said the AUMF might allow the U.S. to enter Syria, on the grounds that the extremist al-Nusra Front there is an “associated force” of al-Qaeda. That was too much for even Sen. John McCain (R-Ariz.), who said the authority “is no longer applicable to the conditions that prevailed” when Congress passed the AUMF in 2001. Sen. Angus King (I-Maine) added that the argument had “essentially rewritten the Constitution,” because it is Congress, not the president, that declares war.
This is the problem with the AUMF and why Congress needs to nix it; it is far, far, far too broad in its scope, both because it has no end date, and because of its ambiguous language in defining whom the U.S. can direct military force against. As a result, it might just be the legal justification that allows the President to push our military forces into yet another Middle East conflict.