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How the Senate's Syria Force Authorization Differs From Obama's
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.
What Syria did
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;
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
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;
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
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.
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 itself
(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.
(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
(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
(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.
(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 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.
May 23, 2014
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