How the Senate’s Syria Force Authorization Differs From Obama’s

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Philip Bump, The Atlantic Wire
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Philip Bump, The Atlantic Wire
Sept. 4, 2013, 9:02 a.m.

Late Tues­day af­ter­noon, the lead­ers of the Sen­ate For­eign Re­la­tions Com­mit­tee un­veiled their re­sponse to the Obama ad­min­is­tra­tion’s ini­tial pro­pos­al au­thor­iz­ing the use of force in Syr­ia. Here, line-by-line, is how the two doc­u­ments com­pare.

THE RA­TION­AL­IZ­A­TION

What Syr­ia did

Ad­min­is­tra­tion

Where­as, on Au­gust 21, 2013, the Syr­i­an gov­ern­ment car­ried out a chem­ic­al weapons at­tack in the sub­urbs of Dam­as­cus, Syr­ia, killing more than 1,000 in­no­cent Syr­i­ans;

Where­as these flag­rant ac­tions were in vi­ol­a­tion of in­ter­na­tion­al norms and the laws of war;

Sen­ate

Where­as Syr­ia is in ma­ter­i­al breach of the laws of war by hav­ing em­ployed chem­ic­al weapons against its ci­vil­ian pop­u­la­tion;

Where­as the ab­uses of the re­gime of Bashar al-As­sad have in­cluded the bru­tal re­pres­sion and war upon its own ci­vil­ian pop­u­la­tion, res­ult­ing in more than 100,000 people killed in the past two years, and more than 2 mil­lion in­tern­ally dis­placed people and Syr­i­an refugees in Tur­key, Jordan, Le­ban­on, and Ir­aq, cre­at­ing an un­pre­ced­en­ted re­gion­al crisis and in­stabil­ity;

Where­as the As­sad re­gime has the largest chem­ic­al weapons pro­grams in the re­gion and has demon­strated its cap­ab­il­ity and will­ing­ness to re­peatedly use weapons of mass de­struc­tion against its own people, in­clud­ing the Au­gust 21, 2013 at­tack in the sub­urbs of Dam­as­cus in which the As­sad re­gime murdered over 1,000 in­no­cent people, in­clud­ing hun­dreds of chil­dren;

Where­as there is clear and com­pel­ling evid­ence of the dir­ect in­volve­ment of As­sad re­gime forces and seni­or of­fi­cials in the plan­ning, ex­e­cu­tion, and after-ac­tion at­tempts to cov­er-up the Au­gust 21 at­tack, and hide or des­troy evid­ence of such at­tack;

The largely ce­re­mo­ni­al “where­as” stip­u­la­tions that in­tro­duce each au­thor­iz­a­tion doc­u­ment re­flect the ways in which the two dif­fer. The ad­min­is­tra­tion’s ver­sion is terse, spare. The Sen­ate’s ver­sion is care­ful ar­tic­u­late in more de­tail the spe­cif­ic charges — like a pro­sec­u­tion lay­ing out a case, not just is­su­ing the charges.

The Sen­ate ver­sion is also more at­tent­ive to the polit­ics of the mo­ment. The war in Syr­ia has led to far more deaths than the 1,000-plus killed in the chem­ic­al weapons at­tack at is­sue, a toll that has been raised by some as equi­val­ently im­port­ant in an after to curb Syr­i­an Pres­id­ent Bashar al As­sad’s be­ha­vi­or.

What that ac­tion vi­ol­ates

Ad­min­is­tra­tion

Where­as the United States and 188 oth­er coun­tries com­pris­ing 98 per­cent of the world’s pop­u­la­tion are parties to the Chem­ic­al Weapons Con­ven­tion, which pro­hib­its the de­vel­op­ment, pro­duc­tion, ac­quis­i­tion, stock­pil­ing or use of chem­ic­al weapons;

Where­as, in the Syr­ia Ac­count­ab­il­ity and Le­banese Sov­er­eignty Res­tor­a­tion Act of 2003, Con­gress found that Syr­ia’s ac­quis­i­tion of weapons of mass de­struc­tion threatens the se­cur­ity of the Middle East and the na­tion­al se­cur­ity in­terests of the United States;

Where­as the United Na­tions Se­cur­ity Coun­cil, in Res­ol­u­tion 1540 (2004), af­firmed that the pro­lif­er­a­tion of nuc­le­ar, chem­ic­al and bio­lo­gic­al weapons con­sti­tutes a threat to in­ter­na­tion­al peace and se­cur­ity;

Sen­ate

Where­as the Ar­ab League has de­clared with re­gards to the Au­gust 21 in­cid­ent to hold the “Syr­i­an re­gime re­spons­ible for this hein­ous crime”;

Where­as the United Na­tions Se­cur­ity Coun­cil, in Res­ol­u­tion 1540 (2004) af­firmed that the pro­lif­er­a­tion of nuc­le­ar, chem­ic­al, and bio­lo­gic­al weapons con­sti­tutes a threat to in­ter­na­tion­al peace and se­cur­ity;

Where­as in the Syr­ia Ac­count­ab­il­ity and Le­banese Sov­er­eignty Res­tor­a­tion Act of 2003, Con­gress found that Syr­ia’s ac­quis­i­tion of weapons of mass de­struc­tion threatens the se­cur­ity of the Middle East and the na­tion­al se­cur­ity in­terests of the United States;

Where­as the ac­tions and con­duct of the As­sad re­gime are in dir­ect con­tra­ven­tion of Syr­ia’s leg­al ob­lig­a­tions un­der the United Na­tions Charter, the Geneva Con­ven­tions, and the Geneva Pro­tocol to the Hag­ue Con­ven­tion on the Pro­hib­i­tion of the Use in War of As­phyxi­at­ing, Pois­on­ous or oth­er Gases, and of Bac­teri­olo­gic­al Meth­ods of War­fare, and also vi­ol­ates stand­ards set forth in the Chem­ic­al Weapons Con­ven­tion;

Where­as Syr­ia’s use of weapons of mass de­struc­tion and its con­duct and ac­tions con­sti­tute a grave threat to re­gion­al sta­bil­ity, world peace, and the na­tion­al se­cur­ity in­terests of the United States and its al­lies and part­ners;

This sec­tion has more over­lap between the two ver­sions than any oth­er part of the doc­u­ments, primar­ily be­cause it spe­cifies why As­sad’s al­leged ac­tion is a crime and a threat. The two ver­sions are largely sim­il­ar, though the Sen­ate ver­sion in­cludes the mor­al judg­ment of the Ar­ab League and ex­tends the list of in­ter­na­tion­al pro­hib­i­tions as a means of en­han­cing the le­git­im­acy of the ac­tion.

Why the United States must act

Ad­min­is­tra­tion

Where­as, the ob­ject­ive of the United States’ use of mil­it­ary force in con­nec­tion with this au­thor­iz­a­tion should be to de­ter, dis­rupt, pre­vent, and de­grade the po­ten­tial for, fu­ture uses of chem­ic­al weapons or oth­er weapons of mass de­struc­tion;

Where­as, the con­flict in Syr­ia will only be re­solved through a ne­go­ti­ated polit­ic­al set­tle­ment, and Con­gress calls on all parties to the con­flict in Syr­ia to par­ti­cip­ate ur­gently and con­struct­ively in the Geneva pro­cess; and

Where­as, uni­fied ac­tion by the le­gis­lat­ive and ex­ec­ut­ive branches will send a clear sig­nal of Amer­ic­an re­solve.

Sen­ate

Where­as the ob­ject­ives of the United States use of mil­it­ary force in con­nec­tion with this au­thor­iz­a­tion are to re­spond to the use, and de­ter and de­grade the po­ten­tial fu­ture use of weapons of mass de­struc­tion by the Syr­i­an gov­ern­ment;

Where­as the con­flict in Syr­ia will only be re­solved through a ne­go­ti­ated polit­ic­al set­tle­ment, and Con­gress calls on all parties to the con­flict in Syr­ia to par­ti­cip­ate ur­gently and con­struct­ively in the Geneva pro­cess; and

Where­as the Pres­id­ent has au­thor­ity un­der the Con­sti­tu­tion to use force in or­der to de­fend the na­tion­al se­cur­ity in­terests of the United States:

The only dif­fer­ence between these two ver­sions is in the last line. The ad­min­is­tra­tion’s ver­sion says, in ef­fect: “We’re in this to­geth­er.” The Sen­ate’s: “The Pres­id­ent is al­lowed to do this.” Which, for Obama, is prob­ably bet­ter lan­guage, as it re­in­forces his ar­gu­ment that he could have struck Syr­ia even without Con­gres­sion­al sign-off.

THE AU­THOR­IZ­A­TION

The au­thor­iz­a­tion it­self

Ad­min­is­tra­tion

(a) Au­thor­iz­a­tion. — The Pres­id­ent is au­thor­ized to use the Armed Forces of the United States as he de­term­ines to be ne­ces­sary and ap­pro­pri­ate in con­nec­tion with the use of chem­ic­al weapons or oth­er weapons of mass de­struc­tion in the con­flict in Syr­ia in or­der to —

(1) pre­vent or de­ter the use or pro­lif­er­a­tion (in­clud­ing the trans­fer to ter­ror­ist groups or oth­er state or non-state act­ors), with­in, to or from Syr­ia, of any weapons of mass de­struc­tion, in­clud­ing chem­ic­al or bio­lo­gic­al weapons or com­pon­ents of or ma­ter­i­als used in such weapons; or

(2) pro­tect the United States and its al­lies and part­ners against the threat posed by such weapons.

Sen­ate

(a) AU­THOR­IZ­A­TION-The Pres­id­ent is au­thor­ized, sub­ject to sub­sec­tion (b), to use the Armed Forces of the United States as he de­term­ines to be ne­ces­sary and ap­pro­pri­ate in a lim­ited and tailored man­ner against le­git­im­ate mil­it­ary tar­gets in Syr­ia, only to:

(1) re­spond to the use of weapons of mass de­struc­tion by the Syr­i­an gov­ern­ment in the con­flict in Syr­ia;

(2) de­ter Syr­ia’s use of such weapons in or­der to pro­tect the na­tion­al se­cur­ity in­terests of the United States and to pro­tect our al­lies and part­ners against the use of such weapons; and

(3) de­grade Syr­ia’s ca­pa­city to use such weapons in the fu­ture.

Har­vard Law pro­fess­or Jack Gold­smith, writ­ing at Law­fareB­log, out­lines the dif­fer­ences between these ver­sions.

“[The Sen­ate] lan­guage is nar­row­er than the ad­min­is­tra­tion’s draft. It lim­its the use of force to “tar­gets in Syr­ia,” and has a more nar­rowly tailored pur­pose. It would not give con­gres­sion­al sanc­tion to the use of force out­side of Syr­ia (in, for ex­ample, Ir­an or Le­ban­on). It would, however, au­thor­ize at­tacks on the Syr­i­an com­mand hier­archy in Syr­ia, all the way up to As­sad him­self, as long as the Pres­id­ent de­term­ined such at­tacks to be “ne­ces­sary and ap­pro­pri­ate” to re­spond to and de­ter and de­grade Syr­i­an WM­Ds.”

 

Gold­smith goes on to note that the ad­di­tion of the phrase “lim­ited and tailored man­ner” is more aes­thet­ic than any­thing. For op­pon­ents of any ac­tion, no lim­it is too low; for Sen­at­or John Mc­Cain, “lim­ited” strikes might al­low a fairly high num­ber.

De­term­in­ing ne­ces­sity of use of force

Ad­min­is­tra­tion

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Sen­ate

(b) RE­QUIRE­MENT FOR DE­TERM­IN­A­TION THAT USE OF MIL­IT­ARY FORCE IS NE­CES­SARY- Be­fore ex­er­cising the au­thor­ity gran­ted in sub­sec­tion (a), the Pres­id­ent shall make avail­able to the Speak­er of the House of Rep­res­ent­at­ives and the Pres­id­ent pro tem­pore of the Sen­ate his de­term­in­a­tion that—

(1) the United States has used all ap­pro­pri­ate dip­lo­mat­ic and oth­er peace­ful means to pre­vent the de­ploy­ment and use of weapons of mass de­struc­tion by Syr­ia;

(2) the Syr­i­an gov­ern­ment has con­duc­ted one or more sig­ni­fic­ant chem­ic­al weapons at­tacks;

(3) the use of mil­it­ary force is ne­ces­sary to re­spond to the use of chem­ic­al weapons by the Syr­i­an gov­ern­ment;

(4) it is in the core na­tion­al se­cur­ity in­terest of the United States to use such mil­it­ary force;

(5) the United States has a mil­it­ary plan to achieve the spe­cif­ic goals of re­spond­ing to the use of weapons of mass de­struc­tion by the Syr­i­an gov­ern­ment in the con­flict in Syr­ia, to de­ter Syr­ia’s use of such weapons in or­der to pro­tect the na­tion­al se­cur­ity in­terests of the United States and to pro­tect our al­lies and part­ners against the use of such weapons, and to de­grade Syr­ia’s ca­pa­city to use such weapons in the fu­ture; and

(6) the use of mil­it­ary force is con­sist­ent with and fur­thers the goals of the United States strategy to­ward Syr­ia, in­clud­ing achiev­ing a ne­go­ti­ated polit­ic­al set­tle­ment to the con­flict.

The Sen­ate, per­haps re­mem­ber­ing the trouble in which the gov­ern­ment found it­self the last time weapons of mass de­struc­tion were used as a ra­tionale for mil­it­ary ac­tion, is in­sist­ing that the ad­min­is­tra­tion of­fer as much proof as pos­sible that the As­sad gov­ern­ment used chem­ic­al weapons and that there is no al­tern­at­ive but mil­it­ary ac­tion. And, of course, that there is a plan in place that will ac­tu­ally achieve the goal of de­terrence.

War Powers Res­ol­u­tion re­quire­ments

Ad­min­is­tra­tion

(b) War Powers Res­ol­u­tion Re­quire­ments. —

(1) Spe­cif­ic Stat­utory Au­thor­iz­a­tion. — Con­sist­ent with sec­tion 8(a)(1) of the War Powers Res­ol­u­tion, the Con­gress de­clares that this sec­tion is in­ten­ded to con­sti­tute spe­cif­ic stat­utory au­thor­iz­a­tion with­in the mean­ing of sec­tion 5(b) of the War Powers Res­ol­u­tion.

(2) Ap­plic­ab­il­ity of oth­er re­quire­ments. — Noth­ing in this joint res­ol­u­tion su­per­sedes any re­quire­ment of the War Powers Res­ol­u­tion.

Sen­ate

(c) WAR POWERS RES­OL­U­TION RE­QUIRE­MENTS-

(1) SPE­CIF­IC STAT­UTORY AU­THOR­IZ­A­TION- Con­sist­ent with sec­tion 8(a)(1) of the War Powers Res­ol­u­tion, 50 U.S.C. § 1541, et seq., the Con­gress de­clares that this sec­tion is in­ten­ded to con­sti­tute spe­cif­ic stat­utory au­thor­iz­a­tion with­in the mean­ing of sec­tion 5(b) of the War Powers Res­ol­u­tion, with­in the lim­its of the au­thor­iz­a­tion es­tab­lished un­der this Sec­tion.

(2) AP­PLIC­AB­IL­ITY OF OTH­ER RE­QUIRE­MENTS- Noth­ing in this res­ol­u­tion su­per­sedes any re­quire­ment of the War Powers Res­ol­u­tion.

The War Powers Res­ol­u­tion, passed to­ward the end of the Vi­et­nam War, was meant to en­sure that a pres­id­ent couldn’t take mil­it­ary ac­tion without in­volving Con­gress in the de­cision (al­beit after the fact, in some in­stances). The res­ol­u­tion also stip­u­lates time lim­its on ac­tion sim­il­ar to those in the Sen­ate’s Sec­tion 4, be­low.

THE LIM­ITS

The ad­min­is­tra­tion’s pro­posed doc­u­ment ends at this point. The Sen­ate’s con­tin­ues with five ad­di­tion­al sec­tions.

SEC­TION 3. LIM­IT­A­TION.

The au­thor­ity gran­ted in sec­tion 2 does not au­thor­ize the use of the United States Armed Forces on the ground in Syr­ia for the pur­pose of com­bat op­er­a­tions.

Sec­ret­ary of State John Kerry had a bit of trouble ad­dress­ing this is­sue be­fore the com­mit­tee on Tues­day, so the Sen­ate tried to be spe­cif­ic. That fi­nal caveat is an im­port­ant one: Con­gress would not al­low com­bat op­er­a­tions in­volving ground troops — but res­cue mis­sions for a downed pi­lot would be per­mit­ted, for ex­ample.

Gold­smith notes an­oth­er carve-out that might al­low:

“Sec­tion 3 is prob­ably writ­ten this way to cap­ture the fact DOD Spe­cial Op­er­a­tions Forces are be­ing used in Syr­ia, or will be used there, for in­tel­li­gence-re­lated and oth­er “pre­par­a­tion of the bat­tle­field” tasks. (I ima­gine, but of course do not know, that this is a nod to op­er­a­tion­al real­ity, since DOD has prob­ably already sent Spe­cial Op­er­a­tions Forces in­to Syr­ia, un­der the Pres­id­ent’s Art­icle II power, to pre­pare the bat­tle­field.)
 

SEC­TION 4. TER­MIN­A­TION OF THE AU­THOR­IZ­A­TION FOR THE USE OF UNITED STATES ARMED FORCES.

The au­thor­iz­a­tion in sec­tion 2(a) shall ter­min­ate 60 days after the date of the en­act­ment of this joint res­ol­u­tion, ex­cept that the Pres­id­ent may ex­tend, for a single peri­od of 30 days, such au­thor­iz­a­tion if –

(1) the Pres­id­ent de­term­ines and cer­ti­fies to Con­gress, not later than 5 days be­fore the date of ter­min­a­tion of the ini­tial au­thor­iz­a­tion, that the ex­ten­sion is ne­ces­sary to ful­fill the pur­poses of this res­ol­u­tion as defined by Sec­tion 2(a) due to ex­traordin­ary cir­cum­stances and for on­go­ing and im­pend­ing mil­it­ary op­er­a­tions against Syr­ia un­der sec­tion 2(a); and

(2) Con­gress does not en­act in­to law, be­fore the ex­ten­sion of au­thor­iz­a­tion, a joint res­ol­u­tion dis­ap­prov­ing the ex­ten­sion of the au­thor­iz­a­tion for the ad­di­tion­al 30 day peri­od; provided that any such joint res­ol­u­tion shall be con­sidered un­der the ex­ped­ited pro­ced­ures oth­er­wise provided for con­cur­rent res­ol­u­tions of dis­ap­prov­al con­tained in sec­tion 7 of the War Powers Res­ol­u­tion (50 U.S.C. 1546).

Obama can use force in Syr­ia for two months, maybe three, un­less Con­gress res­cinds or ex­tends its per­mis­sion. And if Obama wants an ex­ten­sion, he has to ex­plain why.

SEC­TION 5. SYR­IA STRATEGY.

Not later than 30 days after the date of the en­act­ment of this res­ol­u­tion, the Pres­id­ent shall con­sult with Con­gress and sub­mit to the Com­mit­tee on For­eign Re­la­tions of the Sen­ate and the Com­mit­tee on For­eign Af­fairs of the House of Rep­res­ent­at­ives an in­teg­rated United States Gov­ern­ment strategy for achiev­ing a ne­go­ti­ated polit­ic­al set­tle­ment to the con­flict in Syr­ia, in­clud­ing a com­pre­hens­ive re­view of cur­rent and planned U.S. dip­lo­mat­ic, polit­ic­al, eco­nom­ic, and mil­it­ary policy to­wards Syr­ia, in­clud­ing:

(1) the pro­vi­sion of all forms of as­sist­ance to the Syr­i­an Su­preme Mil­it­ary Coun­cil and oth­er Syr­i­an en­tit­ies op­posed to the gov­ern­ment of Bashar Al-As­sad that have been prop­erly and fully vet­ted and share com­mon val­ues and in­terests with the United States;

(2) the pro­vi­sion of all forms of as­sist­ance to the Syr­i­an polit­ic­al op­pos­i­tion, in­clud­ing the Syr­i­an Op­pos­i­tion Co­ali­tion;

(3) ef­forts to isol­ate ex­trem­ist and ter­ror­ist groups in Syr­ia to pre­vent their in­flu­ence on the fu­ture trans­ition­al and per­man­ent Syr­i­an gov­ern­ments;

(4) co­ordin­a­tion with al­lies and part­ners; and

(5) ef­forts to lim­it sup­port from the Gov­ern­ment of Ir­an and oth­ers for the Syr­i­an re­gime.

The Sen­ate wants to know spe­cif­ics about what the ad­min­is­tra­tion is do­ing with its mil­it­ary au­thor­ity, and, as above, its plan for meet­ing its stip­u­lated goals. Which links to …

SEC­TION 6. CON­GRES­SION­AL NO­TI­FIC­A­TION AND RE­PORT­ING.

(a) No­ti­fic­a­tion and Pro­vi­sion of In­form­a­tion. Upon his de­term­in­a­tion to use the au­thor­ity set forth in sec­tion 2 of this Act, the Pres­id­ent shall no­ti­fy Con­gress, in­clud­ing the Sen­ate For­eign Re­la­tions Com­mit­tee and the House For­eign Af­fairs Com­mit­tee, of the use of such au­thor­ity and shall keep Con­gress fully and cur­rently in­formed of the use of such au­thor­ity.

(b) Re­ports. No few­er than 10 days after the ini­ti­ation of mil­it­ary op­er­a­tions un­der the au­thor­ity provided by Sec­tion 2, and every 20 days there­after un­til the com­ple­tion of mil­it­ary op­er­a­tions, the Pres­id­ent shall sub­mit to the Con­gress, in­clud­ing the Sen­ate For­eign Re­la­tions Com­mit­tee and the House For­eign Af­fairs Com­mit­tee, a re­port on the status of such op­er­a­tions, in­clud­ing pro­gress achieved to­ward the ob­ject­ives spe­cified in Sec­tion 2(a), the fin­an­cial costs of op­er­a­tions to date, and an as­sess­ment of the im­pact of the op­er­a­tions on the Syr­i­an re­gime’s chem­ic­al weapons cap­ab­il­it­ies and in­ten­tions.

Sec­tion 2(a) is the au­thor­iz­a­tion sec­tion of the Sen­ate’s doc­u­ment. So, in oth­er words, the Sen­ate wants reg­u­lar re­ports on how the strikes are ful­filling the stated au­thor­iz­a­tion.

SEC­TION 7. RULE OF CON­STRUC­TION.

The au­thor­ity set forth in Sec­tion 2 of this res­ol­u­tion shall not con­sti­tute an au­thor­iz­a­tion for the use of force or a de­clar­a­tion of war ex­cept to the ex­tent that it au­thor­izes mil­it­ary ac­tion un­der the con­di­tions, for the spe­cif­ic pur­poses, and for the lim­ited peri­od of time set forth in this res­ol­u­tion.

Con­gress isn’t ap­prov­ing war: it is merely agree­ing to the pres­id­ent’s de­sired use of force in Syr­ia. As Gold­smith sum­mar­izes the Sen­ate’s au­thor­iz­a­tion: “If the Sen­ate draft be­comes law, the Pres­id­ent should be very pleased.”

Re­prin­ted with per­mis­sion from the At­lantic Wire. The ori­gin­al story can be found here.

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