Hagel on Syria: UN yes, Congress no

Reuters this morning:

And what would that legal justification be? President Obama's record is that he himself is all the legal justification he needs to send US forces into war.

Some members of Congress, including my own remarkably stupid Senator Bob Corker, are urging action. I say Corker is stupid here not because he thinks the US should take action, which is debatable among reasonable people (I have long ago posted my opinion) but because of this truly brainless sentence:

“This [likely chemical weapons use] has happened.  I think we will respond in a surgical way," said Corker.

If there is anything that the use of air power over the last many years has shown it is that you can be surgical or you can be strategically effective, but you cannot be both at the same time.

However, Corker at least partially redeems himself in responding to Rep. Eliot Engel, the top Democrat on the House Foreign Affairs Committee:

Engel said Congress should be involved in any military actions taken, but added its involvement need not precede any orders given by the president.  Senator Corker said Obama should ask for legislative authorization to act as soon as Congress returns from its August recess.  But he added regime change in Syria should remain the task of the Syrian people.

Oh, did I say Corker redeemed himself here. Sorry, my bad. It seems in his mind that we should bomb Assad because he used chemical weapons but it's okay if he stays in power if the "Syrian people" don't manage regime change. If you can devise a more garbled strategic formulation than that, I'd like to see it.

Time Magazine dismisses the idea that Obama needs Congressional authorization to make war on Syria.

Washington graybeards like to point out that only Congress can declare war, and only Congress can appropriate the funds to wage war. Technically speaking, that’s true. But it is also irrelevant. 

The nation has been on a slippery slope for decades, steadily shifting the power to both launch and wage war away from Congress, and toward the President. 

The last war Congress declared was World War II. Everything since — Korea, Vietnam, Grenada, Panama, Iraq, Bosnia, Afghanistan, Iraq (again!) and Libya — has been fought with something less than a full-throated declaration of war by the U.S. Congress.

Time is simply wrong that the "last war Congress declared was World War II." Like many commentators, Time seems to think that is the words, "declaration of war" are not included in the Congress' resolution than it is not a declaration of war. The fact is, though, that Congress has declared war when it says it has, in whatever language it uses to authorize the use of military force, because the Constitution leaves it up to Congress to determine when it has done so.

There is no such thing as a "full-throated declaration of war" nor "formal declaration," a term other commenters have used over the years. If the Congress resolves to authorize the use of military force, then the Constitutional requirement has been met.

Over the past two centuries, Congress has acceded that the president has unilateral authority to act militarily against attacks against the US or to protect the lives of American citizens in foreign lands. Hence, FDR did not need to wait for Congress to declare war against Japan before ordering attacks against Japanese forces on or after Dec. 7, 1941 (Congress did so declare the next day, however).

It was President Harry S Truman who set the presidential imperial tone we still have not resolved to this day. Truman sent US forces into combat in Korea without authorization by Congress of any kind, claiming that he wasn't making war but conducting a "police action" and that because armed force against the North Korean invasion had been authorized by the UN Security Council, he didn't need Congress' authorization. Historian Louis Fisher examined the history and circumstances and concluded:

Congress had in fact directly addressed trough legislation the relationship between UN resolutions and the president's executive authority to employ the armed forces, but Truman simply ignored the law and ordered US forces into combat anyway.

Congress then did what Congress usually does best when its oversight power is challenged: nothing. When President Obama ordered warfare against Libya on no one's authority but his own, Matt Yglesias wrote in , "Lack of Congressional Authorization for Use of Force is an Abdication of Responsibility, Not a Power Grab."

... presidents will go back to accepting congressional authorization for the use of force as a binding constraint when congress starts actually wanting that authority.

As he points out, Congress simply does not want to take that decision any more. And so the looming illegal war against Syria. Senators and representatives will utter noises, pretending to be statesmanlike and wise, but not one of them wants to put his name on the line authorizing military force against Syria, nor directly voting against it, which could be interpreted as a vote to prop up the seriously evil Assad regime. So they will happily let Obama carry all the burden. After all, he has no election to stand again.

Since the dawn of the American republic, Congress has acceded that the president does not need advance Congressional approval to defend the United States from actual attack nor to protect American citizens from harm. Neither are the case in Syria. Americans are not in danger from Assad's regime nor does the regime pose any kind of military threat to the United States.

I am not assessing in this post whether war against Syria would be morally justified, but whether it would be legal under the Constitution if it proceeds without Congress' direct authorization. As for the former topic, I wrote in June that there is no justification of American force in Syria, and last week's events do not change that.