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The Rush To An Illegal War: Obama Should Seek Congressional Approval

Above: Protest from July 2013 in Oklahoma where people from across the political spectrum came together to oppose war in Syria.

Three articles on the need for the President to seek congressional approval before military action in Syria: – Both President Obama and Vice President Biden have said that going to war without congressional approval when it is not an act of self defense is illegal — of course, they were not the president and vice president when they said it. – Members of Congress are calling on the president to announce a special session to consider military attack on Syria. – Even people with a broad view of the power of the president to begin military action see the attack on Syria as a stretch of the law. The repercussions of military action in Syria are hard to predict.  There will be unintended consequences.  President Obama is moving toward a war where only 9 percent of Americans support the attack.  There are threats of retaliation being made against US allies Saudi Arabia, and Israel.  Iran could be pulled into a war defending Syria.  President Obama could be starting something much bigger than a two-day bombardment of Syria (which is bad enough, and something we oppose); and he will be doing so illegally under domestic law without Congressional approval and under international law without UN authorization. [The UK has decided to go to the UN Security Council for a resolution on Syria.] Is Obama afraid that if there is debate it will be evident a military attack on Syria is a mistake?

Obama And Biden Have Said Military Action Without Congressional Approval Is Unconstitutional

“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Obama in 2008.

By Andrew Kaczynski
BuzzFeed, August 27, 2013

President Obama and Vice President Biden once held radically different views on the use of military force without congressional authorization. During the 2008 presidential campaign, both made undeniably clear the president could not authorize a military strike without congressional except for a case of an “imminent threat.” Then-Senator Biden found the offense impeachable. “I want to make it clear to you,” Biden said speaking at a campaign event in Davenport, Iowa in December 2007. “I’ve drafted, with the help of 17 years I was the chairman of the Judiciary Committee or the ranking member. Ladies and gentlemen, I drafted and outline of what I think the constitutional limits have on the president in over the war clause. I went to five leading scholars, constitutional scholars, and they drafted a treatise for me, and it’s being distributed to every senator. And I want to make it clear and I made it clear to the president, if he takes this nation to war in Iran, without congressional approval — I will make it my business to impeach him.” Biden reiterated the claim in his “on the issues” page on his former campaign website saying the nation could only be taken to military action with the approval of congress expect to stop an “imminent attack” on the United States.

It is precisely because the consequences of war – intended or otherwise – can be so profound and complicated that our Founding Fathers vested in Congress, not the President, the power to initiate war, except to repel an imminent attack on the United States or its citizens. They reasoned that requiring the President to come to Congress first would slow things down… allow for more careful decision making before sending Americans to fight and die… and ensure broader public support. The Founding Fathers were, as in most things, profoundly right. That’s why I want to be very clear: if the President takes us to war with Iran without Congressional approval, I will call for his impeachment. I do not say this lightly or to be provocative. I am dead serious. I have chaired the Senate Judiciary Committee. I still teach constitutional law. I’ve consulted with some of our leading constitutional scholars. The Constitution is clear. And so am I. I’m saying this now to put the administration on notice and hopefully to deter the President from taking unilateral action in the last year of his administration. If war is warranted with a nation of 70 million people, it warrants coming to Congress and the American people first.

Then-Senator Obama likewise agreed with the assessment from Biden saying the President of the United States could only authorize an attack in the instance of “imminent threat” to the nation, responding to a question to a 2008 Boston Globequestionnaire on executive authority.

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation. As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action. As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

The White House is currently weighing a response to Syria’s use of chemical weapons. Video of Biden’s Iowa remarks have been embedded below:

33 lawmakers: Congress must approve Syria action

The letter will be sent to the president on Wednesday

By JAKE SHERMAN Politico, August 27, 2013

Thirty-three House lawmakers have signed a letter urging President Barack Obama to call Congress back into session if he plans to use military force in Syria. Rep. Scott Rigell (R-Va.), who represents a coastal Virginia district rife with current and former military personnel, wrote in the letter that “engaging our military in Syria when no direct threat to the United State exists and without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution.”

Most signers are Republicans, according to Rigell’s office. Democratic Reps. Beto O’Rourke (Texas), Gene Green (Texas), Zoe Lofgren (Calif.), Peter DeFazio (Ore.), Kurt Schrader (Ore.) and Rush Holt (N.J.) have also signed on.

The letter notes that the lawmakers believe Obama should have asked Congress for permission when he sent cruise missiles and bombs into Libya. “If the use of 221 Tomahawk cruise missles, 704 Joint Direct Attack Munitions, and 42 Predator Hellfire missiles expended in Libya does not constitute ‘hostilities,’ what does?” the signers ask. “If you deem that military action in Syria is necessary, Congress can reconvene at your request,” the letter reads. “We stand ready to come back into session, consider the facts before us, and share the burden of decisions made regarding U.S. involvement in the quickly escalating Syrian conflict.”

Why Doesn’t President Obama Seek Congressional Approval for Syria?

By  Lawfare, August 28, 2013

I have a pretty broad view of presidential power to use military force abroad without congressional authorization.  On that view, which is close to the past views of the Office of Legal Counsel, the planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.  There are many reasons why it is a stretch even under OLC precedents.  The main ones, as I alluded to a few days ago, are (1) neither U.S. persons nor property are at stake, and no plausible self-defense rationale exists; (2) the main non-self-defense U.S. interest that the Commander in Chief has invoked since the Korean War to justify unilateral uses of force – upholding the integrity of the U.N. Charter – appears (as Wells argued) to be disserved rather than served by a military strike in Syria; and (3) a Syria strike would push the legal envelope further even than Kosovo, the outer bound to date of presidential unilateralism, which at least implicated our most important security treaty organization commitments (NATO).  (Note that the USG was, as Wells pointed out, never able to publicly articulate a legal rationale for Kosovo.  In our more legalistic age 14 years later, such silence likely won’t be possible, but it also won’t be possible to rely on Kosovo as a constitutional precedent without explaining why the invasion was lawful at the time.) All of which raises the questions: Why is President Obama going to act unilaterally?  Why doesn’t the man who pledged never to use force without congressional authorization except in self-defense call Congress into session to debate and authorize the use of force in Syria?  Why doesn’t he heed his own counsel that “[h]istory has shown us time and again . . . that military action is most successful when it is authorized and supported by the Legislative branch,” and that it is “always preferable to have the informed consent of Congress prior to any military action”?  Why is he instead rushing to use force in a way that will set a novel constitutional precedent for presidential unilateralism that will far outlive his presidency?  Since U.S. intervention in Syria portends many foreseeably bad consequences, and because there is so little support in the nation for this intervention, why not get Congress on board – not just to legitimate the action, but also to spread political risk?  Why exacerbate the growing perception – justified or not – of a presidency indifferent to legal constraints?  Why not follow the example of George H.W. Bush, who sought and received congressional authorization for the 1991 invasion of Iraq, or George W. Bush, who did the same for the 2003 invasion of Iraq?  Or to take an example more on point, why not follow David Cameron, who (embarrassingly for the President) recently called Parliament into session to debate and legitimate Britain’s planned involvement? There are many answers, including: the President now has a very broad view of his unilateral war powers; this military action is being rushed, and formal congressional approval is not a priority in light of the President’s self-induced credibility crisis and the overwhelming military and diplomatic demands of planning the intervention; the White House doesn’t want to expend (or doesn’t have) the resources that seeking and winning congressional approval would require; it doesn’t want to suffer through the formal national debate; and it fears it might lose the debate (either outright, or with a limitation on presidential power), which would be politically and legally humiliating.  None of these are good reasons from a constitutional perspective, and in light of the costs of unilateralism.  And the White House is mistaken to think that informal briefings to congressional leaders are a substitute, even a near-substitute, for formal public congressional debate and authorization.  Such secret ex ante deliberations lack constitutional significance, and they won’t help one bit politically once things go contrary to plan, as they always do.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, where he teaches and writes about national security law, presidential power, cybersecurity, international law, internet law, foreign relations law, and conflict of laws. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003–2004, and Special Counsel to the Department of Defense from 2002–2003. Professor Goldsmith is a member of the Hoover Institution Task Force on National Security and Law. Full bio »
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