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.