The War Precedent

The crisis precipitated by a Syrian attack on civilians using chemical weapons, in defiance of President Barack Obama’s promise that there would be consequences for the regime if such an attack were to occur, provides a timely occasion to clear up some of the confusions that have accreted in the last 50 years around the question of the president’s constitutional authority to use armed force.

The seeds of this confusion were sown in the 1960s, when President Lyndon B. Johnson sought and won the overwhelming approval of both houses of Congress for the Gulf of Tonkin Resolution supporting the administration’s deepening involvement in Vietnam. Johnson did not seek that resolution on constitutional grounds, but rather because he believed President Harry Truman had been mistaken, on practical political grounds, when he relied on the U.N. Charter and Security Council authority to commit troops to the U.N. expeditionary force in Korea. As the U.S. intervention in Vietnam became more controversial, the anti-war movement and their repentant allies in Congress who had supported the resolution attempted to vitiate its legal authority by claiming that they had been swindled, and had never anticipated — despite the clear, open-ended language of the text of the resolution — the war that resulted.

This was given the imprimatur of history by the claim, so faithfully repeated in countless books and articles since, that the entire Tonkin incident had been concocted by the Johnson administration in order to win approval for the resolution. Although there subsequently emerged doubt as to whether the second North Vietnamese attack on a U.S. destroyer in fact occurred or was erroneously reported by the local commander (whose men mistakenly took sonar reverberations for a torpedo), there is no doubt — and there never has been any basis for doubting — that the first attack did indeed take place and that President Johnson was just as startled by this as anyone else.

Nevertheless, this studied warping of history had an ironic effect: it persuaded presidents and their advisors that there was little to be gained by seeking congressional authority. As Johnson himself put it, "I thought if they were with me on the take-off they’d be with me until we landed. I forgot they had parachutes."

"Case law" is the phrase lawyers use to describe the judicial precedents that create a substantive body of law; in constitutional law, these precedents are the bases for doctrinal argument. But there are also doctrinal arguments as to constitutional subjects that are not justiciable, i.e., that cannot be decided by courts. Some examples of such subjects include the grounds for impeachment, the permissible bases on which the rejection of presidential nominees can be made, the question of whether the executive may by treaty purchase land for the United States (like the Louisiana Purchase) in advance of a congressional appropriation, and, of course, the constitutional requirements the executive must satisfy in order to go to war. The difference between this sort of case law and the opinions collected in the Supreme Court Reports is that the precedents are written in history — not in judicial decisions.

There is ample precedent in recent history — and with precedent, the more recent, the more authoritative — to support the view that the president does not need a joint resolution of Congress, much less a declaration of war, in order to initiate hostilities on a valid constitutional basis. The rescue of the Mayaguez (Ford), the Iran hostage rescue attempt (Carter), the invasion of Grenada (Reagan), the intervention in Lebanon (Reagan), the invasion of Panama (Bush), the air attacks on Serbia (Clinton), and the cruise missile attacks on Afghanistan and Sudan (Clinton) are all recent examples.

Beyond the presidential case law, the history and text of the Constitution support the president’s authority to take unilateral military action, though that may come as a surprise to many people. The Constitutional Convention of 1787 removed the power to make war from both Article I and Article II, that is, from the executive and legislative branches, giving the president the power to command forces, and Congress the power to provide funds for those forces. The power to declare war was never considered a precondition for entering hostilities but rather, as the Supreme Court observed in 1800 in Bas v. Tingy, a matter of "perfecting" an otherwise limited war and thus conferring certain rights under international law vis-à-vis neutrals, and other parties. This explains why our first war — the so-called quasi-war against France in the John Adams administration, when many constitutional framers were alive — was not preceded by a declaration of war. Nor, by the way, was President Thomas Jefferson’s expedition against the Barbary pirates, which also relied on statutory authority.

Perhaps the most important arguments in this area are not doctrinal, historical, or textual, but prudential. In the current strategic context, does it make practical sense to require a joint resolution of Congress before the president can act? For example, with respect to extended deterrence — the vow to treat an attack on our allies as an attack on ourselves — I would think the answer is clearly no. A treaty — which must win the consent of the Senate — would suffice (as it did in Korea). How about the rescue of American nationals when force is required? Again, my sense is no: that the statutes providing such capabilities, and the extensive hearings about these contingencies which precede the adoption of those statutes by Congress, are sufficient. (This is in accord with the Adams precedent, by the way, which used three acts of Congress that appropriated funds as the basis for prosecuting the war.) What about an attack on a nascent nuclear capability sought by a hostile state? This is more doubtful, but I would be inclined to conclude that the Congress that appropriated funds, after extensive hearings over several years, for "bunker-busting" munitions could hardly claim to have been surprised when those weapons were used in the very contexts discussed at the time of the authorization and appropriations process.

These examples all have in common a certain urgency and the necessity for stealth. When there is time, the prudential calculus changes. Little is lost and much is gained by a fresh congressional debate over Syria, where there are no good tactical options that would be jeopardized by such a debate, and where the public has yet to be satisfied that the administration has good reasons for its decision.

President Obama’s situation in some respects resembles that of President George H. W. Bush in the run-up to the first Gulf War. Overruling his national security advisor, Bush went to Congress for a joint resolution authorizing the U.S. invasion of Iraq. It was a daring gamble that the president finessed by announcing that he believed he had the authority to proceed in any case. This tactic seems to have narrowly won the day, with the consequence that — although the victory in the Senate was razor-thin — there was eventually broad public support. On Saturday, the president took a roughly similar position, saying, "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."

As to whether the president is correct in his assessment that he does not, as a constitutional matter, need further congressional authorization, I am as yet undecided. The constitutional arguments for presidential intervention in Syria, absent either a North Atlantic Council endorsement or perhaps a vote by the members of the Arab League (for whose security Congress has provided extensive military assistance), are weaker than some recent precedents. In any case, I doubt it matters now. It is most unlikely that the president will use force in the face of an explicit congressional rejection of his request for authorization to use force. He carefully announced on Saturday that he had "decided that the United States should take military action against Syrian regime targets" — not that he will.

But the really important points are that the president be seen as following the law and that we try to reform the law to reflect the changing strategic context. With regard to the first of these imperatives, I do not believe the president’s position will create case law that compromises the powers of the executive any more than the actions of presidents who have reported to Congress "in accordance with" rather than "pursuant to" the War Powers Resolution that they rightly believe to be unconstitutional.

With respect to the second imperative, we must recognize that the 21st-century wars against terror are still fundamentally wars, so far as the rule of law. These wars will be waged in three domains: the campaigns against global, networked terrorists like al Qaeda and their associated allies; the attempt to prevent, and where that is not possible, to mitigate the effects of civilian catastrophes, including genocide, ethnic cleansing, and the mass killing of citizens by their own states; and the struggle to preclude the proliferation of weapons of mass destruction for the purpose of compellance rather than deterrence. President Obama recognized these three arenas when he referred on Saturday to the implications of this crisis for "governments who would choose to build nuclear arms … terrorists who would spread biological weapons … armies who carry out genocide."

In Syria, all three of these arenas are in play. And in Syria — as is the case generally — progress in one arena often means a worsening of the situation in another. This is the tragic condition of the wars of the 21st century. It may be that a national debate will enable us to appreciate this complexity.