An Unconstitutional Military Strike

By Alan Caruba

I don’t know why the White House doesn’t just send Syria’s Bashar al-Assad a map of where it intends to attack with Tomahawk and other missiles. The bottom line, however, is that this much heralded military adventure is unconstitutional. The President has no authority to initiate the use of the military against Syria.

This has not stopped presidents from engaging the nation in wars, but the last declaration of war, as specified in Article 1, Section 8, Clause 11, occurred on December 11, 1941 against Germany as a response to its formal declaration of war against the United States. Three days earlier Japan had attacked Pearl Harbor initiating a state of war.

As the Tenth Amendment Center points out, “Unless fending off a physical invasion or attack, the president is required to get a Congressional declaration of war before engaging in military hostilities in another country.”

Let us be clear about this. Syria has not declared war on the United States and, while the use of gas goes against an international convention against it, the Assad regime has already killed 100,000 Syrians in a civil war. Nor is Syria the only nation in the Middle East known to have used gas. Saddam Hussein gassed several thousand Kurds in Halabja, Iraq in 1988 and used it in his eight-year war against Iran. The West’s response was to do nothing except to condemn it.

As Daniel Pipes, president of the Middle East Forum, points out, “Warfare is a very serious business whose first imperative is to deploy forces to win—rather than to punish, make a statement, establish a symbolic point, or preen about one’s morality.”

President Obama’s first mode of governance is to make a speech and then to assume the problem is solved. From his very first speech in Cairo in 2009, those in charge in the Middle East interpreted his policies as weakness.

When President Clinton lobbed a few missiles by way of retaliation for al Qaeda attacks on U.S. embassies in Africa, Osama bin Laden concluded the U.S. was weak and set about planning the two attacks on the Twin Towers.

Dr. Pipes warns that “Bashar al-Assad’s notorious incompetence means his response cannot be anticipated. Western strikes could, among other possibilities, inadvertently lead to increased regime attacks on civilians, violence against Israel, an activation of sleeper cells in Western countries, or heightened dependence on Tehran. Surviving the strikes also permits Assad to boast that he defeated the United States.”

The Wall Street Journal opined that “there is no good outcome in Syria until Assad and his regime are gone. Military strikes that advance that goal—either by targeting Assad directly or crippling his army’s ability to fight—deserve the support of the American people and our international partners. That’s not what the Administration has in mind.”

What Obama has in mind is a symbolic attack in much the same way killing bin Laden was both necessary and symbolic. In making the announcement Obama declared “Yet his death does not mark the end of our effort.  There’s no doubt that al Qaeda will continue to pursue attacks against us.  We must –- and we will -- remain vigilant at home and abroad,” adding that ”As we do, we must also reaffirm that the United States is not –- and never will be -– at war with Islam.”

Islam, however, is at war with the United States and the West. That is the declared aim of both al Qaeda and the Muslim Brotherhood.

The war in Syria is a civil war. There is no good outcome no matter whether the Assad regime wins or is overthrown. There is no strategic or tactical victory to be achieved by the United States in either case. Simply punishing the regime for using gas achieves nothing except to expend several million dollars’ worth of missiles.

The Tenth Amendment Center points out that “As they did in the war against Libya, those violating these strict constitutional limitations will like refer to an attack on Syria as something other than ‘war.’ But, changing the words they use to describe their actions doesn’t change the constitutional ramifications. Under the Constitution, a war is a war whether you call it a war or something else.”

The time is long past when America must address whether our military interventions in the Middle East have demonstrated any success. To date, they have not. The majority of Americans are opposed to an attack on Syria and both the Constitution and the collected wisdom of the public argue strongly against it.

We are, however, too far down the road thanks to the administration’s declared intention to do so. War it has been said is to be an extension of politics. We will witness a political gesture and one that is intended to demonstrate Obama is a leader internationally and domestically. He is neither.

It will be an attack on the constitutional powers of Congress as much as an attack on Syria.

© Alan Caruba, 2013