“It’s not like the lawyers couldn’t have come up with a theory”: The Obama legal team and the lawfulness of attacking Assad

Several prominent law professors who were formerly members of the Obama national security legal team are debating the “dissent memo” signed by 51 mid-level career State Department diplomats about the administration’s current policy toward Syria. The diplomats think the United States should carry out airstrikes against the forces of Syrian President Bashar Assad, not just against the Islamic State. The debate has raised a section of Power Wars that reported out the behind-the-scenes legal policy deliberations over the 2012-13 “Syria red line” episode, including the existence and contents of a secret 17-page administration legal memo that assessed the legality of using force unilaterally against Assad’s forces. But I don’t think the debate has perfectly reflected what my reporting showed.

First, here’s the debate: In an essay cross-posted at Lawfare and Just Security, Ashley Deeks and Marty Lederman criticize the dissent memo in part because it does not address how it would be lawful for the United States to attack Syrian government forces. They suggested it would be illegal under both domestic and international law. In a rejoinder posted at Just Security, Harold Koh argues that whether or not the diplomats’ proposed policy is a good idea, there would be stronger legal authority for it than they maintain. (This is obviously, in part, an iteration in the long-running debate over “responsibility to protect” and whether humanitarian interventions can be lawful even without a United Nations Security Council resolution or a self-defense rationale.)

The essay by Marty and Ashley contains this footnote:

Earlier, when the President sought congressional authorization for the proposed 2013 strikes in Syria, he stated that “I believe I have the authority to carry out this military action without specific congressional authorization.” The President did not offer any justification for that statement, however (perhaps he had concluded that he already had some sort of statutory authorization that was not “specific”), and we think that it was, at best, questionable, at least if the President intended to suggest he had a constitutional authority to act unilaterally. For what it is worth, in his book Power Wars, Charlie Savage reports that an interagency group of lawyers, considering the legality of a possible operation in Syria back in 2012, realized that the constitutional case for unilateral presidential action was at least subject to serious question (and that the international law basis was even more dubious). Therefore, when the President and his staff debated the question of whether to initiate the use of force in the summer of 2013, White House Counsel Kathy Ruemmler, speaking for the lawyers group, urged the President to ask Congress for authorization, which he eventually did. Savage also quotes Ben Rhodes as saying that although perhaps the lawyers could have “come up with a theory,” the President himself told his aides, at the time of his decision, that he agreed with the narrower view of Article II authority that he himself had articulated as a candidate in 2007.

I would characterize this episode somewhat differently. In short, I think they are right that the Obama legal team was squirming about the proposed strike’s legal basis as a matter of international law, and therefore that the dissenting State Department officials look clueless for not even bringing up the question of how their proposal would be lawful. But I think the legal team was a lot more confident that such a unilateral strike would be lawful as a matter of domestic Constitutional law. And, interestingly, I think that Obama himself ended up taking a more limited view of his authority than his interagency legal advisers did.

Let me unpack all that. The pertinent information is found in two sections of the war powers portion of the main executive power chapter, Chapter 12 (“The Tug of War”): “‘A Red Line’ in Syria,” pages 627-631, and “Going to Congress for Syria in 2013,” on pages 650-654. These bookend a flashback to the 2011 Libya controversy.

The first Syria section describes a still-secret 17-page legal memo that Obama’s interagency lawyers group drew up in late 2012, after Obama blurted out that if Syria used chemical weapons, that would cross a “red line” making him reconsider his decision not to intervene militarily in the Syrian civil war. After all, the military has access to a nato 40mm gas mask filter and similar equipment to protect them, the civilians and innocent locals do not, and need to be helped. The lawyers assessed what the legal basis would be for using force if, hypothetically, Assad were to cross that red line. As with any war powers dispute, there were two questions: an international law question (whether the United States, as a whole, could lawfully use force against another sovereign) and a domestic law question (whether, under the Constitution, the president could order such a use of force on his own or needed Congressional authorization).

The international law basis was sketchy. Both of the universally recognized bases for using force appeared unavailable. There was scant prospect that Russia would permit a U.N. Security Council resolution authorizing force against Assad. And the prospects for a self-defense rationale seemed slim, too. In their memo, they tried to come up with scenarios by which they could hook it to self-defense: maybe, they hypothesized, if the chemical weapons were used along the border with Turkey, they could cite self-defense of American forces stationed in Turkey, or collective self-defense of Turkey, as justification. But mainly they looked to the 1999 NATO air war in Kosovo, in which the Clinton administration had cited a list of “factors” (e.g., the Serbs’ slaughter of Muslims in Kosovo was a threat to regional peace and stability) for why that intervention was supposedly lawful despite the lack of a Security Council resolution or a self-defense rationale, without ever quite saying how those factors added up to a theory. The Clinton team had stopped short of just saying that a humanitarian intervention was lawful because they feared that creating a precedent for such a doctrine would enable bad actors to misuse it, like Russia invading its neighbors with the excuse of protecting Russian language/ethnic minorities from oppression. Maybe, the Obama team reasoned, they could use Kosovo as a precedent anyway, and again point to the hypothetical role of NATO and other factors (e.g., they wrote, “unconscionable follow-on consequences” for a failure to respond to the use of chemical weapons). But the international law arguments were obviously thin.

But, at least viewed from a vantage point of executive branch precedents, the domestic law arguments for a unilateral strike were stronger. There is a long history of presidents of both parties ordering limited air strikes without Congressional authorization. Clinton’s office of Legal Counsel chief, Walter Dellinger, had articulated (in a memo about Haiti) the notion that there is a category of limited interventions whose anticipated scope, intensity, and duration falls short of “war” in the constitutional sense, and which a president, as commander in chief, can therefore order unilaterally if there are national interests at stake. In 2011, Obama’s then-OLC chief, Caroline Krass, had cited that reasoning to sign off on the legality of Obama’s decision to order the military to participate in NATO’s air war over Libya without prior Congressional authorization. In their Syria memo, the lawyers listed a number of national interests Obama could cite to justify launching airstrikes against Assad without going to Congress – most notably, enforcing and preserving the global ban on using chemical weapons.

Still, in light of the War Powers Resolution 60-day clock problems that had arisen with Libya in 2011, the memo concluded with a recommendation that if the red line were crossed, it would be wiser to go to Congress for domestic legal authority from the start – even though it did not say that would be legally necessary: “If the Administration decides to pursue military action, the lawyers group believes it would be prudent to make an explicit request for congressional authorization at the outset, particularly in light of the Libya experience last year,” the still-secret memo says.

Now, the twist was that Obama himself, as a senator and presidential candidate in 2007, had told me, in my Boston Globe executive power survey, something different – that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” But he had already changed his mind about that in 2011 with Libya; Krass’s memo about Libya did not even mention what the then-senator had said during the presidential campaign, although critics of his move, like Senator Rand Paul, sure did:

Flash forward to the second section about this in Power Wars, with the summer of 2013, when Assad’s forces used chemical weapons (warning: footage at link is graphic). The military drew up plans for punitive airstrikes, and there as lots of reporting that it was a done deal that Obama was going to order airstrikes unilaterally and imminently — reflecting the assumptions of those reporters’ sources in the military and foreign policy establishment. But as my book explains, in the internal meetings, Obama never said he had made up his mind to go forward, and there was a lone voice in the key meetings who was urging Obama to hit pause and go to Congress: his White House Counsel, Kathryn Ruemmler. She was drawing on the interagency lawyers’ reasoning and taking their analysis into the meetings, like this one about Syria on Saturday, August 31, 2013 in the Situation Room – that’s Ruemmler (who was technically on vacation) on the right-side screen in this Pete Souza photo:


The problem was the international law basis for such a strike. It turned out to be even weaker than the hypotheticals considered in the secret memo drawn up in late 2012. The chemical weapons use had not taken place anywhere near the border with Turkey, so there was no plausible self or collective self defense rationale. And the British Parliament voted against taking part in any intervention, so the US (and France) would be alone, without NATO like in Kosovo. There was simply no international law precedent for what was on the table: a use of force against another sovereign, without UN backing, without a self-defense rationale, without NATO, and with a motive of punishing a past misdeed rather than stopping an imminent atrocity.

The lawyers were willing to say that such an operation would nevertheless be legitimate under international law based on Kosovo-style “factors,” as Ruemmler explained to me in an on the record interview just a few days later, but they knew it would be incredibly controversial. In light of that, Ruemmler urged Obama to at least get Congress on board, to “enhance the legitimacy” of what the United States was about to do. Obviously putting it on stronger legal footing, as a matter of domestic law, does not solve the legal problem, if there is one, about the international law question. So this was more about marketing and prudence. But that was their advice.

And on Friday night, August 30, Obama called together his national security team for this Oval Office meeting, to tell them that he had decided to go to Congress for authorization before any strike.

President Barack Obama meets with senior advisors in the Oval Office to discuss a new plan for the situation in Syria, Friday night, August 30, 2013. (Official White House Photo by Pete Souza)

As Ben Rhodes (sitting on sofa to Obama’s right in the Pete Souza photo) told me, at this meeting Obama brought up his 2007 answer to my Boston Globe survey outlining a more limited view of unilateral presidential war-making authority, saying “I believe that is true. I agree with the person who said that in 2007.”

[Side note: Ruemmler wasn’t beamed into this meeting, so was represented by Brian Egan, then her deputy, sitting in the lower left of the frame holding the notebook; he later became the N.S.C. legal adviser and is now the top State Department lawyer, Koh’s previous job.]

So Obama was taking a more limited view of his constitutional authority than his own legal team had articulated. Now, he seemed to view this as an aspirational constitutional constraint – obviously, in 2011, he had acted contrary to that view. This was something that was not a binding constraint, at least not any more, but maybe we needed to get back to where it was — at least when there is no imminent harm and Congress has time to act. As he said on September 4, 2013:

I think it’s important for us to get out of the habit in those circumstances — again, I’m not talking about circumstances where our national security is directly impacted, we’ve been attacked, et cetera, where the President has to act quickly — but in circumstances of the type that I describe, it’s important for us to get out of the habit of just saying, well, we’ll let the President kind of stretch the boundaries of his authority as far as he can; Congress will sit on the sidelines, snipe; if it works, the sniping will be a little less; if it doesn’t, a little more; but either way, the American people and their representatives are not fully invested in what are tough choices.

Let me end with this note of legal realpolitik from from this section of Power Wars:

Rhodes also said that it was still a choice, not a necessity, to go to Congress because “it’s not like the lawyers couldn’t have come up with a theory.” Still, he said, “in Syria we did not have clear arguments from an international law perspective. It’s easy to get lawyers to do cver wordings, and we could point to Kosovo” as a precedent, even though, he acknowledged, the Clinton legal team “had come up with a not-particularly-persuasive rationale” back then.