How to write an authorization for war

Since I was involved with the most recent congressional authorization for war, against Libya in July 2011, I was intrigued by President Obama’s announcement that he would seek the support of Congress for military action against Syria.  The draft resolution released by the White House lacks numerous qualifiers and other checks and balances that ought to accompany such an important document.  The resolution to use force in Libya, which was rare, belated, and defeated, provides some insight into what the Syrian war authorization ought to look like.

The legal distinction between “declaring” war and “authorizing” military action is debatable, but the courts have ruled there isn’t much difference.  The last time Congress formally declared war (using those words) was in 1942, against Bulgaria, Hungary, and Romania.  More recently, Congress authorized the use of military force against al-Qaeda (in 2001) and Iraq (2003).  All told, Congress has declared war five times (against eleven countries) and authorized war another thirteen times, give or take.  There have been undeclared wars and actions, too, as well as military actions undertaken under United Nations authorization, but for which Congress did not explicitly authorize.  The War Powers Resolution of 1973 spells out how the President may use military force and, with few exceptions, has generally been followed.  However, there have been instances when presidents have not engaged Congress on military action.  In March 2011, President Obama authorized an attack on Libya without obtaining congressional authorization.

At the time there was some congressional consternation over Obama’s commitment of U.S. forces to the NATO campaign against Libya.  Some of it was of an anti-Obama political nature, some of it was of an anti-war sentiment, and some of it was from a real concern over the erosion of congressional power in matters of war and peace.  Congress, as the representatives of the people, ought to have a say in the application of military power, and its attendant costs in blood and treasure.

Authorizations for the use of force are Joint Resolutions – meaning they have to be passed in identical form by both the House and Senate and then approved by the President, just like a regular bill.  In the summer of 2011, while I was working as Legislative Director for a Member of Congress, Congress considered legislation authorizing the use of force against Libya – my boss introduced the House version. The resolution failed.  Ultimately, neither the House nor the Senate was able to agree on a single bill to define the scope of military action in Libya, meaning that President Obama waged war against Libya entirely without congressional approval.  No doubt that experience, and the political mess it created, influenced his decision to drop the Syria problem in Congress’ lap.

So how should the authorization for the use of force against Syria look?  Probably similar to the one for Libya, though the two conflicts present very different situations requiring different military tactics.  But it should be broken into four parts:

  1. A preamble, written with a series of “Whereas” clauses that serves as Congress’ justification.  For example, “Whereas Syrian President Bashar Assad’s regime has used chemical weapons in violation of international war crimes and human rights laws…”  The White House’s draft proposal does lay this out, referring to international agreements regarding the use of chemical weapons.
  2. A Sense of Congress.  This is where the authorization lays out the military and political goals of the use of force.  Congress uses this to define its “will”, to lay claim to how it expects the President to use the power authorized to him.  For example, “It is the sense of Congress that the Assad regime must face punishment for its use of chemical weapons.”  This is where things can get sticky.  Does the President or Congress get to define the goals?  Are these goals also shared by our allies in this endeavor?  Will the resolution lose votes if it includes (or doesn’t include) certain goals?  Where is the balance?  For example, the authorization for Libya stated as a military goal that all attacks against civilians must stop, and as a political goal that Qaddafi depart from power to allow for a peaceful transition to an inclusive government. President Obama’s proposal lays out instead his military and political objectives in the first section, skipping the Sense of Congress.  His military objective is to deter and prevent the future use of chemical weapons and other WMD.  His political goal is a negotiated settlement to the Syrian conflict.  I’d be surprised if a Sense of Congress went much beyond this – the President has made it absolutely clear that U.S. military action would not be to effect regime change.
  3. Authorization for the Limited Use of Military Force.  President Obama’s proposal calls for a completely open-ended authorization to use force, not subject to any specific limitations, although he does describe military action in the context of pursuing chemical weapons and defending U.S. allies from such weapons.  Strangely, he leaves out any mention of protecting Syrian civilians.  Presumably, then, other types of military action – such as to protect Syrian civilians – would not be considered legitimate.  But Congress should return with a “limited” authorization that specifically prohibits the use of ground forces, as the Libyan authorization did.  In other words, “no invasion allowed.
  4. Reporting requirements.  The war authorization should include hefty reporting requirements mandating that the President provide a wide range of information to Congress in a timely and comprehensive manner.  The costs of the military effort, an updated description of our national security interests and policy objectives, a report on U.S. military activities, and an assessment of the impact of the strikes were all a part of the Libyan use of force authorization.

At the end of the day, declaring war, or authorizing the use of military force, is no small thing.  It is a serious undertaking for our elected representatives – 535 people empowered with a decision that could absolutely end with people killed.  A congressional authorization, no matter how carefully articulated, doesn’t guarantee against the unknown consequences that are sure to come about from a war with Syria.  It just guarantees that Congress will share either the blame or the praise with President Obama.

About the Author
Jason Harris is the host and producer of Jew Oughta Know, a podcast that tells the story of the Jewish People from Genesis to modern Israel. He has taken hundreds of young adults on trips to Israel, and holds master's degrees in Jewish studies from Brandeis University. Prior to his work in the Jewish community he served as a senior staffer to a U.S. Member of Congress. He lives in the San Francisco Bay Area.