Balkinization: One More Thing About That New OLC Opinion on Syria

One More Thing About That New OLC Opinion on Syria

Deborah Pearlstein

Although it’s hard not to let the news cycle completely overtake Friday’s release of the opinion of the Office of Legal Counsel on the constitutionality of the April airstrikes on Syria, the upcoming summit on North Korea, and the Administration’s apparent radical rethinking of Iran’s future post-JCPOA, makes it important not to let it go just yet. While I agree with much of Jack Goldsmith’s assessment of the opinion – which at its core adopts and applies the same standard for establishing the constitutionality of executive uses of force without congressional authorization set forth the 2011 OLC opinion on the use of force in Libya – what’s most striking here, and what has gone too little remarked so far, is the portion of the new opinion that goes beyond not only 2011, but all else before from OLC: the part that recognizes that a national interest in “deterring the use and proliferation of” chemical weapons can justify a presidential use of force without prior congressional authorization.

First, recall that the 2011 OLC opinion established the position that the President has power to use force under Article II without prior congressional authorization if two conditions are met: (1) if “sufficiently important national interests” are at stake, and (2) if the anticipated “nature, scope, and duration” of the operation would make it something less than “war” within the meaning of the constitutional clause giving Congress the power to declare it. In the Libya case, the President anticipated a short-term “and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster,” as well as significant national interests in promoting regional stability and in supporting the UN system (in particular, a UN Security Council Resolution that had authorized the use of force to protect Libyan civilians then under attack). The 2011 OLC memo did not limit the kind of “national interests” that could justify unilateral presidential action to those particular interests; indeed, other presidents have used force unilaterally to achieve different purposes entirely (most common of all – protection of U.S. persons and property). But neither that memo, nor any previous OLC opinion, had included deterrence and/or non-proliferation as interests equally sufficient to satisfy the “interests” prong.

The 2018 Syria OLC opinion cites three interests as justifying the President’s attack there: (1) an interest in promoting regional stability; (2) an interest in “mitigating a humanitarian crisis” in Syria, to which Assad’s use of chemical weapons “contributed;” and (3) an interest in “deterring the use and proliferation of chemical weapons.” The first interest is an unremarkable application of the 2011 standard, with precedents in the U.S. action in Libya and other previous unilateral presidential strikes. Pace Goldsmith, I would also characterize the second interest in mitigating humanitarian suffering as nothing especially new, for even if one reads the 2011 OLC opinion as not squarely resting its “interests” rationale on humanitarian grounds (notwithstanding its characterization of the mission as to “protect civilians and prevent a humanitarian disaster”), it was already crystal clear as a matter of presidential practice (which is presumably matters more if one takes seriously the argument that what the President does, rather than what OLC says, that is a gloss on the meaning of the Article II power), that the presidents’ humanitarian concerns were central to decisions to intervene in not only Libya in 2011, but also Iraq in 2014, and of course Kosovo in 1999.

Given how easy it would have thus been for the 2018 OLC to craft an opinion on Syria differing effectively not at all from past OLC opinions, it seems striking that the new opinion goes out of its way to add the deterrence/proliferation rationale to its list of otherwise already sufficient reasons why – an interest the memo takes three pages to elaborate, for it acknowledges that “we are unaware of prior Presidents justifying U.S. military actions based on this interest as a matter of domestic law.” That the United States has long opposed the use of chemical weapons, has signed treaties to this effect (though none of them authorizes or contemplates the use of force as a remedy for breach), and is and should be worried about the proliferation of these weapons and deterring their use – all past question. But if one is to take at all seriously the idea that the “interests” prong of the OLC rationale might be some constraint on presidential action in this realm – in the face of substantial scholarly skepticism that it could play such a role – then it is necessary to take seriously the meaning of this new interest.

Two initial points, then, on why the OLC opinion on this point might matter. First, again pace Goldsmith, to the extent the Obama Administration had previously cited the interest in deterring the use of chemical weapons as a compelling U.S. concern (surrounding Syria’s 2013 use of chemical weapons), that particular instance of presidential practice must be understood to stand for the very opposite conclusion the 2018 OLC opinion reaches here. That is, President Obama argued strenuously that the Congress should authorize the use of military force against Assad under those circumstances exactly because the United States has so many reasons to object to such a use of weaponry (not least of which was the violation of international law prohibiting their use). But when Congress failed to provide the President authorization he sought, the President decided not to use force. And the more we learn about this moment, the more apparent it becomes that the President’s decision not to act in Syria then was heavily influenced by his view that he lacked adequate constitutional authority to do so on that basis. As Ben Rhodes’ compelling new book quotes Obama’s words in a pivotal White House meeting:

“It is too easy for a president to go to war,” [Obama] said. “That quote from me in 2007—I agree with that guy. That’s who I am. And sometimes the least obvious thing to do is the right thing.”

Again to the extent one takes seriously the view that what matters for the meaning of Article II of the Constitution is how the President acts within it, one must take exactly as seriously as evidence of practice presidential non-uses of force in the face of constitutional strictures as one takes presidential uses of force. The Supreme Court’s view that presidential practice coupled with congressional acquiescence is a gloss on the meaning of presidential power is not, could not sensibly be, construed as a one-way ratchet – sufficient to increase presidential power but never to limit it. The new 2018 OLC opinion in this regard had a problematic ‘precedent’ to distinguish. It failed to do so.

Second, it is difficult indeed to read the portion of the OLC opinion on deterrence and proliferation of chemical weapons without mentally substituting the words “nuclear weapons” to see if, in OLC’s considered view, the same rationale would provide constitutional justification for a ‘preemptive’ unilateral presidential military strike against North Korea or Iran. On the facts, it is important to note, it seems entirely plausible to understand the Syria/chemical case as a more limited extension. Syria had actually used chemical weapons; there is as yet no comparable example of nuclear use (and if there were, by, say, North Korea, the U.S. constitutional rationale to use force might become a far more conventional act of U.S. individual and/or collective self-defense). Yet “use” is, notably, not a distinction the OLC opinion makes – resting as it does on the importance of not only deterring these weapons’ use, but also deterring their proliferation. Indeed, OLC writes, “Presidents have repeatedly declared the proliferation of chemical weapons to be a national emergency,” citing nothing specific to chemical weapons as such, but rather the latest “Notice Regarding the Continuation of the National Emergency with Respect to the Proliferation of [all] Weapons of Mass Destruction.” One hardly needs to parse the details of an OLC opinion to unearth the idea that members of the current administration might from time to time contemplate the ‘preemptive’ use of force against North Korea and/or Iran. But to the extent one might hope OLC would venture objections to such a use, it is difficult not to see that hope now as somewhat dimmed.

Posted 12:14 PM by Deborah Pearlstein [link]