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The Conservative Curmudgeon
September 10, 2013

Two Key Questions Concerning Syria:
What Is To Be Done, and Who Is To Decide?

by Allan C. Brownfeld
fitzgerald griffin foundation

ALEXANDRIA, VA — Events in Syria are increasingly grim. Its civil war has claimed 100, 000 lives, and the evidence is persuasive that President Bashar Assad has used chemical weapons to kill 1,400 civilians.  

Chemical weapons were banned even before they were ever used. At the time of The Hague Convention of 1899, no one had tried to use projectiles, "the sole objective of which is the diffusion of asphyxiating or deleterious gases" — the kind the convention banned.  

Neither the horror nor the strictures of The Hague convention stopped Germany and its adversaries from using chemical weapons in World War I. At least 90,000 soldiers were killed by them — and more than one million were wounded. These weapons continued to be used in the 1930s in the Italian invasion of Ethiopia and the Japanese invasion of China.


Perhaps the Constitution has been ignored for so long that no one remembers what it says about the power to make war.






Despite having used chemical weapons in France, and continuing to develop and stockpile them, the great powers reaffirmed the ban on their use in the Geneva protocol of 1925. The Economist notes, "The taboo became even stronger after the Second World War, in which they were used only by Japan.... Surprisingly, Adolf Hitler too refrained from the use of chemical weapons in war, but not from the use of poison gases in concentration camps. This was in part in fear of reprisals in kind. It was probably also because Hitler, himself gassed in the First World War, had an active antipathy to the stuff. In their history of chemical weapons, A Higher Form of Killing, two British journalists, Robert Harris and Jeremy Paxman, note that Raubkammer, where Germany tested its chemical weapons, was the only big military proving ground that Hitler never visited."

The only clear breach of the protocol after the Second World War was by Saddam Hussein, who used chemical weapons against Iran in the Iran-Iraq war, as well as against the Kurds and other minorities in Iraq. In 1995, the Aum Shinrikyo cult attacked the Tokyo subway system with homemade sarin nerve gas. Almost 1,000 commuters were affected and a dozen killed. In 1997, the United Nations Chemical Weapons Convention came into force.

Permitting the use of chemical weapons would set a deadly precedent. Mr. Assad's allies in Hezbollah, Iran, and North Korea would be led to believe that they can violate international norms with impunity. The international community is impotent. The structure of the United Nations, with veto power in the hands of Russia and China, makes it irrelevant when real crises arise. NATO and the Arab League lament the killings, but they are prepared to do nothing to stop them. That leaves the U.S. and a handful of willing partners prepared to act. But what kind of action, at this point, would be effective?

U.S. officials have been discussing a limited cruise-missile strike on Syrian military targets. Many military voices are skeptical that such a strike would be effective — and fear the potential unintended consequences.


The Korean War was the first modern example of the U.S. being taken to war without a formal declaration, and this has been repeated in every armed conflict since.


"There's a broad naïveté in the political class about America's obligations in foreign policy issues, and scary simplicity about the effects that employing American military power can achieve," said retired Lt. Gen. Gregory S. Newbold, who served as director of operations for the Joint Chiefs of Staff during the run-up to the Iraq war, noting that many of his contemporaries are alarmed by the plan.

Marine Lt. Col. Gordon Miller, a fellow at the Center for a New American Security, warned of "potentially devastating consequences, including a fresh round of chemical weapons attacks and a military response by Israel. If President Assad were to absorb the strikes and use chemical weapons again, this would be a significant blow to the United States' credibility, and it would be compelled to escalate the assault on Syria to achieve the original objectives."

Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, has warned in great detail about the risks and pitfalls of U.S. military intervention in Syria. In a letter to the Senate Armed Services Committee, Dempsey wrote, "As we weigh our options, we should be able to conclude with some confidence that the use of force will move us toward the intended outcome. Once we take action, we should be prepared for what comes next. Deeper involvement is hard to avoid."

Beyond the question of which military tactics are likely to be most effective is the question of who, under our Constitution, should make the decision.

Before announcing that it would seek congressional approval for any strikes against Syria, the administration earlier insisted that the president has the authority to make his own decision on a military attack. After British Prime Minister David Cameron lost a parliamentary vote for provisional authorization for military action in Syria, the BBC reported on August 31, "Neither France nor the U.S. needs parliamentary approval for military action."

Perhaps the Constitution has been ignored for so long that no one remembers what it says about the power to make war.           
Article 1, section 8, clause 11 vests the power to declare war in the following wording: "The Congress shall have power to declare war, grant Letters of Marque and Reprisal, and make Rules concerning captures on Land and Water." Five wars have been declared by Congress:  the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.        

More recently, presidents have not sought formal declarations of war, instead maintaining that they have constitutional authority as commander-in-chief (Article Two, Section Two) to use the military for "police actions." 

According to historian Thomas Woods, "Ever since the Korean War, Article Two, Section Two of the Constitution — which refers to the president as the 'Commander in Chief of the Army and Navy of the United States' — has been interpreted to mean that the president may act with an essentially free hand in foreign affairs, or at the very least that he may send men into battle without consulting Congress."      

The Korean War was the first modern example of the U.S. being taken to war without a formal declaration, and this has been repeated in every armed conflict since. Beginning with the Vietnam War, however, Congress has given various other forms of authorization.

In light of speculation about the authenticity of the Gulf of Tonkin incident and the possible abuse of the authorization that followed, Congress in 1973 passed the War Powers Resolution, which requires the president to obtain either a declaration of war or a resolution authorizing the use of force within 60 days of initiating hostilities with a full disclosure of facts in the process.


"U.S. citizens and military personnel are not under attack. It is not a split-second emergency. The president does not face a request from the Security Council, NATO, the Arab League..."
—Garrett Epps writing in The Atlantic


Concerning the question of a presidential decision to strike Syria, Garrett Epps writes in The Atlantic, "U.S. citizens and military personnel are not under attack. It is not a split-second emergency. The president does not face a request from the Security Council, NATO, the Arab League.... This is precisely the kind of situation for which the Framers of our Constitution designed its division of authority between president and Congress. Sending our missiles against Syria is an act of war. If it is to be done, Congress, not the president, should approve."

    Too many Americans today are unaware of the reasoning behind the decision of the Framers of the Constitution to vest the war-making power in the Congress. During August of 1787, when the wording of the Constitution was being finalized, the draft read that Congress could "make war." This was changed to "declare war" specifically in order to allow the president to defend the country from sudden attacks.

According to the Minutes of the Constitutional Convention, "Mr. Madison and Mr. Gerry moved to insert 'declare,' striking out 'make' war," leaving to the Executive the power to repel sudden attacks. The president taking action to defend the country does not relieve Congress of its responsibility; Congress is obligated to vote on whether to declare and continue the war.

In Federalist 4, John Jay explained that presidents, kings, and other leaders are likely to start wars that are unnecessary and unjust, but the people are less likely to do so: "It is true, however disgraceful it may be to human nature, that nations in general will make war, whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people."

Abraham Lincoln wrote, "The provision of the Constitution giving the war-making power to Congress was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally... that the good of the people was the object. This our Convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the constitution that no one man should hold the power of bringing this oppression upon us."

It is good that Congress will consider how to respond to the use of poison gas in Syria. This is what the Constitution intended. Both Republicans and Democrats have bypassed the Constitution in taking us to war in recent years. Let us hope that we are entering a period when any U.S. engagement in war is approved by those to whom the Constitution has entrusted this power.

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The Conservative Curmudgeon is copyright © 2013 by Allan C. Brownfeld and the Fitzgerald Griffin Foundation. All rights reserved. Editors may use this column if this copyright information is included.

Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Subcommittee.

He is associate editor of The Lincoln Reveiw and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.

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