If President Barack Obama chooses to unilaterally launch a military attack against Syria in retaliation for the government's alleged use of chemical weapons against civilians last week, he is certain to face criticism that he's overstepping his executive authority.

The president has already run up against resistance from some members of Congress, who argue that under the 1973 War Powers Resolution and the U.S. Constitution he must seek the body’s full approval before taking military action against the country.

The disagreement is part of a larger and thorny constitutional and legal argument over how far Congress can go to check the chief executive's war powers and what types of military actions constitute war.

Rep. Justin Amash, R-Mich., has said it would be “unquestionably unconstitutional” for Obama to bomb the country without Congress’ approval, and he has authored legislation to withhold funds from the effort. Democratic Sen. Tim Kaine of Virginia also has suggested the president might be on shaky legal ground if he doesn’t get a congressional OK. More than 100 members of Congress signed a letter to the president warning him to seek their approval before attacking another country.

Interestingly, Obama himself made a similar argument while on the campaign trail six years ago. He told the Boston Globe in 2007 that no president can use military force absent an “actual or imminent threat to the nation” without first getting Congress' approval. (Vice President Joe Biden, for his part, vowed to impeach President George W. Bush in 2007 if he bombed Iran without first getting approval from Congress.)

White House press secretary Jay Carney said on Tuesday that the president still stands by his 2007 statement, but that Syria’s alleged use of chemical weapons does pose an actual and imminent threat to U.S. national security. Obama said last week that if chemical weapons are used on a large scale, they could affect “core national interests,” such as America’s duty to protect its allies and bases in the Middle East.

The U.S. Constitution says it's up to Congress to declare war and to fund the military. The 1973 War Powers Resolution allows presidents to deploy troops when there's a "national emergency" caused by an attack on the country or its possessions, but then gives the executive only 60 days to get congressional approval or withdraw troops. Presidents in the past have become engaged in conflicts without first checking with Congress and have stretched the definition of "national emergency."

John Yoo, a University of California law professor best known for authoring controversial memos authorizing the use of torture on detainees from the war in Afghanistan during his time in Bush's Justice Department, told reporters on Thursday he believes Obama’s critics are wrong.

“If President Obama wants to use force in Syria, constitutionally I think he can,” Yoo said. “Politically, it would be wise for him to get congressional support.”

Yoo believes that Congress’ power over warfare under the Constitution is through the purse and that those who believe Congress must preapprove any use of force by the executive misunderstand the Constitution.

The U.S. involvement in Kosovo, the Korean War and other conflicts all began without a congressional vote. The last official declaration of war by Congress was for World War II, as the power to use force has gradually shifted away from Congress and toward the chief executive. The Constitution does not require the president even to have a good reason to attack another country, Yoo said.

But other scholars disagree with Yoo’s interpretation and think a unilateral strike on Syria without congressional authorization will constitute a legal gray area. Harvard Law School professor Jack Goldsmithwrote on Wednesday that “the use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.” Goldsmith argued that “no plausible self defense rationale exists” and that informal briefings to lawmakers will not be a substitute for congressional debate and authorization.

Just two years ago, the Obama administration launched an air war against Libya without getting Congress’ authorization and then handed off the operation to NATO. (The Libya operation was approved by the U.N. Security Council, which would be less likely to approve action against Syria.) The White House argued then that the airstrikes did not amount to war because U.S. troops were not put at risk. It’s likely these semantic arguments about what counts as “war” will emerge again if the United States does in fact strike Syria.

Meanwhile, there’s the issue of whether an attack on Syria would be legal under international law.

The Geneva Conventions outlawed the use of chemical weapons during warfare after World War I, and there is some precedent for invading a country to stop a humanitarian crisis. If there is irrefutable evidence that an atrocity is occurring and there is no peaceful means to stop it, the U.N. Security Council can authorize force against a nation. But even without the U.N.’s approval, international law may allow nations to band together to stop an atrocity from occurring. This is the argument that some British authorities are making, with Attorney General Dominic Grieve arguing that the U.K. is authorized to take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria.”

Obama’s argument that stopping the use of chemical weapons is in the national interest seems to have less support in international law, which does not clearly support the use of pre-emptive force as self-defense. The U.N. charter says nations may defend themselves only once they are attacked. (The Bush administration pushed back on this interpretation, arguing that the existence of “rogue states and terrorists” meant that the United States could pre-emptively attack in self-defense.)

“Allowing the use of chemical weapons on a significant scale to take place without a response would present a significant challenge to or threat to the United States' national security interests,” Carney said on Tuesday.

Correction: This story originally misidentified Rep. Justin Amash's home state.

Syria situation reprises War Powers debate

President Obama may ask the military to launch an attack on Assad, but is that within his constitutional rights?
Issue dates back to 1973

Staunch U.S. ally Britain dealt a blow to President Barack Obama’s push for possible military action against Syria on Thursday, releasing intelligence findings that make it clear that evidence Bashar Assad ordered last week’s alleged chemical weapons attack is far from a slam-dunk.

“There is some intelligence to suggest regime culpability in this attack,” Britain’s Joint Intelligence Committee chairman, Jon Day, wrote in a memorandum made public by the government.

In another section, Day said Britain had “a limited but growing body of intelligence which supports the judgement that the regime was responsible for the attacks.”

Day said there is evidence that the regime used chemical weapons on a smaller scale on 14 previous occasions. And “there is no credible intelligence or other evidence to substantiate the claims or the possession of CW [chemical weapons] by the opposition.” Overall, Day said, it is “highly likely that the regime was responsible.”

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A Free Syrian Army fighter stands near a damaged military tank that belonged to the forces loyal to …

But Day’s memo does not directly address other possibilities, like accidental launch. Or launch by a rogue Syrian military officer. Or a conventional shell striking a chemical weapons cache (depending on the substance). Or launch by a third party, like forces fighting for Assad but answering to Iran.

But his report noted that “permission to authorise CW has probably been delegated by President Asad to senior regime commanders.”

(There are also curious assertions in Day’s memo. At one point, he writes that “there is no obvious political or military trigger for regime use of CW on an apparently larger scale now, particularly given the current presence in Syria of the UN investigation team.” But that team arrived in Syria on Aug. 18. The alleged chemical weapons attack on a Damascus suburb came on Aug. 21. Whatever Assad's calculation is, it does not appear to be limited by the presence of U.N. inspectors.)

The British report is far more cautious than the White House has been over the past week. On Tuesday, press secretary Jay Carney heaped scorn on anyone who doubted the U.S. conclusion that the Assad regime had deliberately launched the attack.

“You would have to be credulous indeed to entertain an alternative scenario that could only be fanciful,” Carney said.

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Fighters from the Free Syrian Army's Tahrir al Sham brigade use a shotgun to fire an improvised gren …

The world reeled in shock last week in the face of graphic videos and photographs of grief-stricken parents weeping over dead children and health workers trying to revive unresponsive victims that some experts said showed clear signs of having been hit with chemical weapons. Rebels fighting to topple Assad said as many as 1,300 were killed in such an attack on a Damascus suburb on Aug. 21.

The respected Medecins Sans Frontieres international humanitarian organization lent its considerable credibility to the chemical weapons charge, saying hospitals it supports in Damascus reported treating some 3,600 patients “displaying neurotoxic symptoms in less than three hours on the morning of Wednesday, August 21, 2013.” Of those, 355 reportedly died, the organization said.

The White House has promised to make public some U.S. intelligence findings proving the case against Assad. Senior administration officials were due to brief key lawmakers on Thursday at 6 p.m. eastern time on that intelligence, after which disclosing some portion of the evidence could be just a matter of hours.

National Security Adviser Susan Rice, Defense Secretary Chuck Hagel, Secretary of State John Kerry, Director of National Intelligence James Clapper, and the vice-chairman of the Joint Chiefs of Staff, Admiral James Winnefeld, Jr. were to lay out an unclassified case to the lawmakers by conference call.

The debate recalled the fraught arguments in the runup to the war in Iraq, notably then-Secretary of State Colin Powell’s dramatic (but ultimately exaggerated) presentation at the United Nations.

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Israelis collect gas mask kits at a distribution point in Jerusalem August 28, 2013. Thousands of Is …

The New York Times, citing unnamed American officials, reported on Thursday that there was “no smoking gun” directly tying Assad to the attacks. That followed a Foreign Policy report on Tuesday citing American intelligence officials as saying that communications intercepts leave no doubt that the Syrian military used chemical weapons — but cast doubt on how high up the chain of command the decision was made.

On Wednesday, the State Department bluntly said it doesn’t matter whether Assad gave the order.

“The commander in chief of any military is ultimately responsible for decisions made under their leadership, even if command and control — he’s not the one that pushes the button or said, ‘Go,’ on this,” spokeswoman Marie Harf told reporters.

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A Syrian woman walks her wounded child to the elevator as she is treated at the Israeli Ziv hospital …

But that standard of guilt might come as a surprise to critics of American military actions like the Abu Ghraib prisoner abuse scandal or, more recently, the epidemic of sexual assault or the widely reported civilian deaths from American drone strikes.

Publicly, at least, Obama, Vice President Joe Biden and others have kept any doubts or caveats about the intelligence to themselves. In a PBS NewsHour interview that aired on Wednesday, Obama said, "we have concluded that the Syrian government in fact carried these out." Biden, in a speech to the American Legion on Tuesday declared that "there is no doubt who is responsible for this heinous use of chemical weapons in Syria: the Syrian regime."

Threatens massive strike if military action launched on Syria

WND

Reza Kahlili

Iran is threatening to launch a massive missile strike against Israel if the United States attacks Syria for using chemical weapons against its own people, which could touch off a full-blown war in the region.

“The day of reckoning is near,” according to Hossein Shariatmadari, the chief editor of Keyhan newspaper, an outlet controlled by Iran’s supreme leader, Ayatollah Ali Khamenei.

An Op-Ed penned by Shariatmadari Tuesday warned that the impending confrontation between the West and Syria would “provide the long-awaited opportunity for revenge against Israel and America.”

The editor recalled the U.S.-led attack on Baghdad on March 20, 2003, and President George W. Bush’s boast to reporters seven days later that the “Iraq war is over.” But when the last U.S. soldiers were leaving Iraq in December 2011, nearly 4,500 Americans had been killed and the war had cost America trillions of dollars.

Shariatmadari said that Washington, instead of open war against Syria, has been waging a proxy war against the Assad regime with the help of Turkey, Saudi Arabia, Qatar, Jordan and Egypt. He said now it is ready to directly confront Syria militarily, one of the members of the Resistance Front along with Iran and Lebanon’s Hezbollah. However, despite Syrian rebels receiving financial and military support from those Middle East countries, not only has the Assad regime not been overthrown but it has opened a “new chapter for the Resistance where it formed the forces of ‘defense of Homeland,’ a force similar to the Basij militias (in Iran).”

Iran has long drawn a red line around the Assad regime. And Hezbollah fighters in Lebanon, Israel’s neighbor, are armed with thousands of missiles. The three members of the Resistance Front have a joint war room.

“Because of the failure of the intended proxy war, America and some Arab and European countries are preparing to attack Syria on the false claims that the Assad regime has used chemical weapons,” the editor said. “However, America can certainly start the war but it won’t be the one to end it.”

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Reposted with permission.