Posted by on September 09, 2013 in Blog

By Isaac Levey
Legal Fellow

The likelihood that Congress will authorize American military intervention in Syria is rapidly diminishing. Almost no one disputes that chemical weapons were used in Syria, and few serious people (but some Members of Congress) doubt that President Bashar al-Assad was responsible. Yet there simply is not enough support, among the American people or their representatives in Congress, to get an authorization of military intervention through both houses of Congress. Some of this can be attributed to an isolationist “none-of-our-business” mindset: a desire to avoid yet another military conflict in a Middle Eastern country with no American interest at stake. Some is from unprincipled Republican politicians who, to borrow a Democratic presidential candidate’s phrase, “supported intervention before they were against it,” and only changed their position when President Obama announced his intention of intervening. And some of the reticence springs from the critique – offered by both the left and the right – that we have no clear mission, and the American military shouldn’t be used just to slap President Assad on the wrist for his violation of international norms. At bottom this last idea is rooted in the sheer offensiveness of the underlying message sent by the President’s current policy: we will allow President Assad to slaughter his own people as long as he doesn’t gas them to death.

The predictability of all this makes it puzzling that President Obama asked Congress to weigh in on Syria and authorize the use of force, especially given that he has clearly stated (and is arguably correct) that he is not legally required to do so, and that his predecessors often acted by themselves in these situations. But be that as it may, the debate has been launched in Congress and is underway. The Senate – where prospects for an authorization are decidedly greater than in the House – is considering a Resolution, authored by Sens. Bob Menendez (D-N.J.) and Bob Corker (R-Tenn.), that passed its Foreign Relations Committee last week. In the House, Reps. Chris Van Hollen (D-Md.) and Gerry Connolly (D-Va.) have drafted a narrow authorization to use force, and on the other side, perpetually anti-war Rep. Barbara Lee (D-Cal.) has drafted a proposal requiring additional use of diplomatic tools that refuses to authorize military force.

Menendez-Corker

The authorization approved by the Foreign Relations Committee is likely, in some form, to pass the full Senate. Senate Joint Resolution 21 authorizes the use of military force and, like all the proposals now under consideration, permits force only for specific purposes: to “respond” to the use of chemical weapons or other weapons of mass destruction (WMD’s); deter Syria from using WMD’s in the future; “degrade Syria’s capacity” to use WMD’s; and prevent the transfer of WMD’s to terrorist groups or other actors in Syria. The President would have to certify to Congress that the U.S. had already used “all appropriate diplomatic and other peaceful means” to prevent WMD use; that Assad had used chemical weapons; and that military force was necessary to respond.

The resolution explicitly prohibits the use of ground troops for “combat operations,” and the authority lasts no more than sixty days. Importantly, however, the Resolution contains troubling language that “It is the policy of the United States to change the momentum on the battlefield in Syria,” so as to help the opposition overthrow President Assad. The legal effect of such a provision is questionable, but it could be read as committing the United States to militarily supporting the rebels in a manner we hadn’t been before. It also requires the President to work with Congress to put together a new, comprehensive Syria strategy going forward, which will include military, political, and diplomatic elements, and efforts to isolate extremist groups from the mainstream Syrian opposition.

Van Hollen-Connolly

The resolution supported by Congressmen Connolly and Van Hollen is similar to the Senate proposal, but has some significant differences that narrow the President’s proposed authority. Ground troops are explicitly prohibited except if necessary to rescue other American forces; this is a clearer limitation than the Senate language which only prohibits boots on the ground for ‘combat operations.’ The House bill is also more limited as to purpose: troops could only be used to prevent or deter the use of chemical weapons (not all WMD’s) in Syria itself, or by Syria against anyone else. It also limits the President’s authority to one “military action” (the meaning of that phrase is unclear), and the authority does not revive unless Assad uses chemical weapons again. And the authorization expires after sixty days no matter what happens.

Unlike the Senate resolution, the Van Hollen-Connolly resolution purports to do nothing but authorize limited military action. It doesn’t require a wholesale reevaluation of our Syria policy, nor does it contain the important statement that we now wish to “change the momentum on the battlefield” in the opposition’s favor. In short, the House resolution authorizes a very limited strike for one single purpose: “to deter and prevent the future use of chemical weapons.”

Still hope for a diplomatic solution?

Last to be considered is a diametrically different proposal from Congresswoman Barbara Lee, who is known (and beloved in some circles) for being the sole member of Congress to vote against the 2001 Authorization for the Use of Military Force, which declared war against al-Qaeda in response to the terrorist attacks on September 11. Lee’s bill pointedly refuses to authorize military action against Syria, instead calling on the U.S. and the world to “exhaust all appropriate diplomatic and non-military options to facilitate a negotiated political settlement in Syria.”

Lee’s proposal lists seven possible diplomatic or political solutions to the carnage. They include engaging in “forceful diplomacy” with the United Nations, the Arab League, and the Organization for Islamic Cooperation; working to strengthen sanctions against the Assad regime, and increasing efforts to hold the Syrian leadership accountable for their war crimes. Notably, several of her proposals – such as “requiring” Syria’s government to allow access to humanitarian organizations; imposing sanctions; and holding the leaders of the regime to account before courts – may require coercive action to back them up, but the resolution gives no explanation as to enforcing its goals. Nor does it give any explanation for what we should do when the suggested diplomatic and political steps are ‘exhausted.’ But the resolution does list several non-military steps that, to the extent we haven’t tried them already, might work to solve this brutal dilemma.

Whatever the weaknesses of these proposals, Congresswoman Lee is to be commended for pointing out the other steps necessary to solve the Syrian conflict, and reminding us not to lose sight of our overall goals. The most strident anti-Assad hawk would not argue that the horrific situation that has developed over the last two years can be solved entirely with American military force. Whether one ultimately agrees that the current proposals for military interventions are good ideas, we should remember not to abandon the political and diplomatic tracks, even where our policies might occasionally require military support.

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