Right on the Constitution, Wrong on the Policy

by John Yoo

President Obama has taken the right constitutional position and the wrong policy position.

Obama is right to say that he has the authority to strike Syria but he would ask Congress for approval anyway. It is, of course, better politics for the United States to act abroad with the joint cooperation and agreement of both branches.

But the reasons why the Framers did not lodge the war power solely with Congress point to the pitfalls of this approach. Legislatures are slow — Congress will not vote on the authorization until the second week of September. They are fractious — even if a strike is in the national interest, the political difficulties of assembling majorities in both houses at the same time are always significant. They do not act with unity, secrecy, and speed. It seems likely that Assad will learn everything he needs to know about our tactics, strategy, and political will from a lengthy legislative debate. 

Such debates make the most sense as a sign of commitment to a major, longer-term conflict. But that is exactly what the White House says it doesn’t want in Syria. As I argued on NRO yesterday, the American national interest and the world’s interest rest in removing the Assad regime. But here, the White House has claimed that any attack will have no effect on the balance of power or even the outcome of the civil war — in other words, they will be almost meaningless. If we are going to strike Syria but not target the Assad regime, then at the very least we should use the opportunity to launch a crippling blow against Syria’s military, such as shutting down its air bases, destroying its air force, eliminating arms stockpiles, and hitting the Syrian command-and-control centers and military leadership.

If that were the more prudent strategy, then speed and secrecy would be of the essence. The longer the U.S. delays, the more time that the Assad regime has to disperse its assets, prepare its air defenses, and conceal its leadership and command structure. It gives time for Russia and Iran to help Syria prepare.

And lastly, what will Obama do if Congress refuses to pass an authorization? Obama has not displayed skill in handling the politics of a divided legislature. He may well not have his heart in it, if the past is any guide.  He will then be acting from the weakest political position and will have sacrificed the advantages of speed and decisiveness that are the executive’s core advantages. 


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