United States Bombs Syria In Latest Undeclared War

220px-B-2_spirit_bombingPresident_Barack_ObamaI just completed a two-city debate with former Bush official John Yoo on executive power with a focus on undeclared wars. It appears Yoo won the debate . . . at least with President Obama. Indeed, Yoo appears to have had Obama at “hello” to quote Jerry Maguire. Without any declaration of war, Obama has launched attacks against targets in Syria — an act of war by any measure and a violation of international law.

We have been discussing the growing concerns over President Barack Obama’s series of unilateral actions in ordering agencies not to enforce law, effectively rewriting laws, and moving hundreds of millions of dollars from appropriated purposes to areas of his choosing. One of the greatest concerns has been his unchecked authority asserted in the national security area.

The most serious acts of unilateral presidential action falls within war powers — powers that the Framers expressly and carefully limited to prevent precisely this type of attack. Of course, the Administration does not use the word “war.” I previously represented members of Congress in challenging Obama’s intervention in the Libyan civil war without a declaration from Congress. In the case, President Obama insisted that he alone determines what is a war and therefore when he needs a declaration. Since the court would not recognize standing to challenge the war, it left Obama free to engage in war operations in any country of his choosing.

The White House insisted that this was “military action” but that “[g]iven that these operations are ongoing, we are not in a position to provide additional details at this time. The decision to conduct theses strikes was made earlier today by the U.S. Central Command commander under authorization granted him by the commander in chief.”

The Administration is now calling this a “sustained campaign” with no estimate on how long it will take. So we are again attacking another nation without a declaration or even a debate in Congress. Members are allowed to avoid their constitutional duties of clearly declaring a war while the President has been allowed, again, to jettison any limitations on his ability to wage war.

It is one thing to take out our own captured Humvees (with missiles costing $250,000 a shot) in Iraq with the permission of the country and hitting cities and targets in Syria against the express position of the government. That is clearly an act of war to prosecute a military campaign against the territory of a sovereign nation.

We are continuing an assault on basic principles of international war and returning the word to a state of nature. When another country elects to take our individuals or targets in the United States, what precisely will we claim as authority. We have assumed the role of Roper from “A Man For All Seasons“:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Source: ABC News

248 thoughts on “United States Bombs Syria In Latest Undeclared War”

  1. Addendum to my comment at September 27, 2014 at 10:52 am:

    I left one out.

    Regarding overseas counter-terror military deployment, in addition to the law of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, ie, PL 104-132, policy of Presidential Decision Directive/NSC-39 (1995), and precedent from former Secretary of Defense William Cohen’s statement to the 9/11 commission, there is of course PL 107-40 (2001):

    the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States

    Again, based on standing counter-terror law, policy, and precedent, Obama’s anti-ISIS strikes in Syria so far are on their face lawful.

  2. Add: That said, the specter hovering uneasily over the anti-ISIS strikes in Syria is Obama’s Libya intervention.

    At this point, Obama’s anti-ISIS strikes in Syria are within the scope of the President’s counter-terror authority.

    But for the Libya regime change, Obama used a UN Security Council approval for a humanitarian intervention based on the Responsibility to Protect theory. Obama assured the UNSC that US military action would not be directed at the Libyan sovereign, ie, Qaddafi’s regime.

    Obama bypassed Congress by claiming the R2P-based military action was not a (sovereign) war but rather pre-authorized by US agreement to uphold the UN covenant’s humanitarian element.

    But then Obama extended the Libya intervention from R2P to regime change. Once directed at the sovereign, the Libya intervention should have been attached to a Congressional war authorization. That did not happen.

    So, while the current anti-ISIS strikes in Syria are within the President’s counter-terror authority, the concern is Obama may again unilaterally extend the anti-ISIS strikes to the Syrian sovereign as he extended the R2P strikes to the Libyan sovereign.

    However, so far, Obama seems to be unofficially cooperating with Assad on the anti-ISIS strikes – so far so good.

  3. leejcarroll,

    Congressman Boehner is correct.

    One, see my comment at September 27, 2014 at 10:52 am. I suggest reviewing the primary-source references I cited on counter-terror law, policy, and precedent.

    Two, Obama’s anti-ISIS strikes and plan so far are consistent with counter-terror precedent and fall within the President’s standing counter-terror authority. As such, the current scope of the anti-ISIS campaign does not require additional Congressional authorization.

    Three, normal legislative-executive procedure – as Boehner is referenced – is the President first makes the plan that forms the request for war authorization, then makes a request that initiates Congressional review. Obama has not made that request nor seems to have such a plan yet.

    You contend that Congress has “clearly abdicated their responsibility”. However, note that in short order Obama requested and Congress approved increased support for ‘moderate’ anti-Assad forces. In the same legislative-executive space, Obama could have requested a Congressional review for war authorization and Congress would have been compelled to review it.

    Obama chose not to make such a request to Congress. Why? As Boehner said, it’s not needed yet. Current anti-ISIS military actions fall within the President’s counter-terror authority and have not crossed the threshold requiring a Congressional war authorization.

    However, as Obama determines a long-term anti-ISIS strategy, he may choose to expand the scope of the anti-ISIS campaign in a way that crosses the threshold requiring a Congressional war authorization.

    Obama’s simply not there yet. It makes sense for Obama to hold off approaching Congress with a request for war authorization until he has a plan that requires additional authorization. Congress can’t review a Presidential request that doesn’t exist yet.

  4. No one an complain the president goes it alone without the congress to give him the vote, or not give it, when they have clearly abdicated their responsibility:
    They had a vacation then voted themselves another one and now are gone for 5 weeks. For this these bums get paid with our tax dollars? With this mentality, essentially election and party is all and forget about us caring about the country or the world, one wonders why we give them any responsibility at all.

    “Congress’ lame duck period is not the appropriate time to debate authorization for war against the Islamic State of Iraq and Greater Syria (ISIS), House Speaker John Boehner said in an interview published Thursday. Boehner’s announcement pushes the contentious issue of explicitly authorizing the Administration’s plan to fight Islamist militants in Syria and Iraq until after November’s midterm elections and into January.I would suggest to you that early next year, assuming that we continue in this effort, there may be that discussion and there may be that request from the president,” Boehner told The New York Times. “Doing this with a whole group of members who are on their way out the door, I don’t think that is the right way to handle this.”


  5. jonathanturley: “The Administration is now calling this a “sustained campaign” with no estimate on how long it will take.”

    Normally, duration of mission is dictated by task, conditions, standard with a goal orientation. A time limit may be imposed as a condition at the outset, but duration is normally compelled by other practical factors, especially goal achievement or failure.

    The first goal, of course, is defeating the enemy in competition.

    The second goal needs to be securing the peace. However, despite the consequential catastrophe of Obama’s decisions to cut off peace operations with Iraq prematurely, forego peace operations with Libya, and his continued support for regime change, Obama still does not appear willing to build the peace. As it stands, the anti-ISIS counter-terror campaign, while necessary, is a short-term patch only, not a long-term curative solution.

  6. I addressed this point with Paul C. Schulte under the cup salute thread, but I’ll tack a note on the issue here as well.

    Professor Turley is incorrect.

    The anti-ISIS strikes are not directed at the Syrian nation, ie, Assad’s regime, and do not constitute an “undeclared war”. The anti-ISIS strikes are a counter-terror action directed at ISIS that is accounted for by counter-terror law, policy, and precedent.

    The President utilizes 2 basic strains of authority to deploy the military overseas in the War on Terror.

    One strain of authority is traditional war authority that is sovereign-directed. In the War on Terror, Congressional war authorization has been employed to combat a noncompliant state sponsor of terrorism in Iraq, Saddam, and al Qaeda’s defiant host in Afghanistan, the Taliban.

    The other strain of authority is the standing counter-terror authority whose contemporary policy baseline was set by the Clinton administration and affirmed by Congress in response to the rise of al Qaeda in the 1990s.

    See the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, ie, PL 104-132 and Presidential Decision Directive/NSC-39 (1995).

    For insight on the practical baseline set by Clinton in terms of counter-terror overseas military deployment, see former Secretary of Defense William Cohen’s statement to the 9/11 commission:

    Professor Turley’s claim overlooks 20 years of counter-terror law, policy, and precedent. In fact, Obama’s anti-ISIS strikes are on their face lawful and consistent with counter-terror precedent.

  7. Jill: “Yes, I am so happy that those who condemned Bush for going to war on false pretenses just can’t wait to support Obama in the same action.”

    If it makes you feel better, the primary sources for Operation Iraqi Freedom clearly show Bush’s decision was right on the law and justified on the policy, so supporting Obama for the “same action” would be correct.

    It’s not really the same action, though. OIF was about bringing Iraq into compliance with the UN mandates of the Gulf War ceasefire – see Public Law 107-243, UNSCR 1441, the UNMOVIC Cluster Document (which confirmed Iraq’s continued breach), etc..

    While there were humanitarian and counter-terror elements in the larger bundle of elements in the compliance standard (see http://fas.org/news/un/iraq/sres/index.html) for Iraq, the current action with Iraq is mainly a humanitarian and counter-terrorism operation.

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