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Obama's authority to attack Syria falls in 'perversely gray' legal area

It could be mere days until President Barack Obama orders strikes on Syria in response to the apparent use of chemical weapons by the regime of President Bashar al-Assad last week.

Some lawmakers say Obama can’t legally use force without a vote, as was the case prior to the Iraq invasion in 2003. But it’s looking increasingly likely the president will act without waiting for authorization from Congress, just as he did in Libya two years ago.

So what, exactly, is the law?

Constitutional expert and American University professor Stephen Vladeck calls this “one of the more perversely gray areas of U.S. constitutional law.”

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Here's a primer on the legal and political intricacies currently in question:

What basis does the Obama administration cite for possible U.S. attacks on the Assad regime?

Obama said during an interview on Wednesday that the reasons for taking action were not only the Assad regime’s violation of “a well-established international norm against the use of chemical weapons,” but “America's core self-interest.”

Not only could U.S. allies (like Israel) be attacked if chemical weapons fall into the hands of terrorists, but chemical weapons “could be directed at us,” Obama said. It was the strongest language he has used to invoke the potential of a direct attack on the United States as a reason to attack Syria. 

What role does the War Powers Resolution play in the current situation?

Congress passed the War Powers Resolution in 1973 over President Richard Nixon’s veto. Its intent was to rein in Nixon who’d used military force in Cambodia without notifying Congress – and to curb future presidents who might wage unauthorized wars. The resolution requires the president to notify and consult with Congress before sending U.S. forces into “hostilities.” The law says the use of U.S. military forces must end within 60 to 90 days unless Congress authorizes such use or extends the time period.

When Obama ordered U.S. forces to take part in NATO’s attack on Libya in 2011, his administration argued that the War Powers Act did not apply because the U.S. military operations in Libya were “distinct from the kind of ‘hostilities’ contemplated” by the 1973 law. The operations in Libya, it said, did not involve U.S. ground troops, U.S. casualties, or “sustained fighting or active exchanges of fire with hostile forces … .”

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With British Parliament voting against military intervention and the support of NATO allies unsecured, can Obama legally strike Syria without the consent of Congress?

While support from the British and from NATO would help make the case for attacking Syria in the court of public opinion both in the United States and abroad, there’s no legal requirement that Obama have international support for an attack.

Vladeck said, “So long as President Obama is complying” with the War Powers Resolution “which includes reporting to Congress within 48 hours of the onset of hostilities, it’s an uphill battle, at best, to argue that the use of force in Syria would be unlawful until and unless the War Power Resolution’s own constraints kick in.”

Would an attack on Syria be similar to the 1989 invasion of Panama or the 1983 invasion of Grenada?

According to the Congressional Research Service, in 1989, when President George H.W. Bush ordered U.S. forces to invade Panama, he told Congress that his goals were to protect the 35,000 American citizens living there, restore a democratic form of government, preserve the integrity of the Panama Canal treaties, and arrest Gen. Manuel Noriega, who’d been charged in the United States with drug trafficking.

There’s no strong parallel with current situation in Syria, other than that Congress was out of session when Bush ordered the Panama invasion and it is out of session now. In 1989, the Senate defeated an amendment authorizing Bush to use force in Panama. Bush was acting without the consent of Congress, and arguably against the wishes of the Senate majority.

In 1983, President Reagan ordered an invasion of the Caribbean island nation of Grenada, saying that he was protecting the lives of U.S. citizens there and answering a request from the Organization of Eastern Caribbean States to restore order. Reagan’s spokesman said there was no need for him to comply with War Powers Resolution since the troops would be out within the law’s 60-to-90 day time period.

How would an attack on Syria differ from the 2003 attack on Iraq?

Both Obama and British Prime Minister David Cameron have argued that there’s no comparison between the two cases.

“This is not like Iraq … we’re not invading a country. We’re not searching for chemical and biological weapons,” Cameron told the House of Commons Thursday before MPs voted against intervention. Prior to the Iraq invasion, President George W. Bush warned of the risk that Iraqi leader Saddam Hussein might use chemical and biological and perhaps at some point nuclear weapons against the United States. But Obama and Cameron say Assad’s regime has already used chemical weapons and might use them again.

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The goal, Obama says, would not be to remove Assad but to deter the future use of chemical weapons. In contrast, at its peak, the U.S. occupation of Iraq reached 170,000 troops. And from the outset overthrowing Saddam Hussein was an explicit goal.

Another difference between then and now: in 2002 Congress overwhelmingly voted to authorize Bush to attack Iraq; in the current case of Syria, it appears that Obama will order military action before Congress gets a chance to vote on authorizing any such action. 

What’s the ultimate check on a president’s ability to use military force?

The ultimate check is Congress’ power to cut off funds.

In 2000, when 26 members of Congress went to federal court to challenge President Bill Clinton’s use of U.S. forces in Kosovo, the appeals court in Washington rebuffed them, partly because it said they already had tools they could use: “Congress always retains appropriations authority and could have cut off funds for the American role in the conflict.”

But that’s hardly an efficient route to take.

Constitutional scholar Louis Fisher contends that uses of military force can take unexpected turns and that cutting off funds after the military action starts is sometimes far too late.

He points out that after President Lyndon B. Johnson “escalated the war in Southeast Asia in the spring of 1965, it took eight years to cut off funding. Instead of losing control at the start of a war and taking almost a decade to stop it, Congress should control it at the front by insisting on prior authorization on any military action against Syria.”