Parallel Processing: AUMF Assad Spanking and Then Article II Regime Change

There’s a fundamental dishonesty in the debate about Syria derived from treating the authorization to punish Bashar al-Assad for chemical weapons use in isolation from the Administration’s acknowledged covert operations to support the rebels. It results in non-discussions like this one, in which Markos Moulitsas refutes Nicholas Kristof’s call for bombing Bashar al-Assad based on the latter’s claim we are currently pursuing “peaceful acquiescence.”

And war opponents don’t have to deal with arguments like this one, from the New York Times’Nicholas Kristof:

So far, we’ve tried peaceful acquiescence, and it hasn’t worked very well. The longer the war drags on in Syria, the more Al Qaeda elements gain strength, the more Lebanon and Jordan are destabilized, and the more people die.

The administration has gone to great lengths to stress just how limited air strikes will be, and to great pain to reiterate that regime destabilization is not the goal. So I’m not sure where Kristoff gets the idea that such attacks will have any effect on the growing influence of Islamists in the region. But let’s say that by some miracle, the air strikes do weaken the Assad government, it is the “Al Qaeda elements” that stand most to gain, as they are be best placed to pick up the pieces.

Markos is right: the Administration has gone to great lengths to claim this authorization to use force is only about limited bomb strikes, will involve no boots on the ground, and isn’t about regime change. Here’s how the President described it:

I have decided that the United States should take military action against Syrian regime targets. This would not be an open-ended intervention. We would not put boots on the ground. Instead, our action would be designed to be limited in duration and scope.

But both are ignoring that at the same time, the Administration is pursuing publicly acknowledged (!) covert operations with the intent of either overthrowing Assad and replacing him with moderate, secular Syrians (based on assurances from the “Custodian of the Two Mosques” about who is and who is not secular), or at least weakening Assad sufficiently to force concessions in a negotiated deal that includes the Russians.

Yet here’s how the President’s National Security team discussed the other strand of this — lethal support for vetted rebels — from the very beginning of Tuesday’s hearing before the Senate Foreign Relations Committee.

SEN. CORKER: What I’m unaware of is why it is so slow in actually helping them with lethal support — why has that been so slow?

SEC. KERRY: I think — I think, Senator, we need to have that discussion tomorrow in classified session. We can talk about some components of that. Suffice it to say, I want to General Dempsey to speak to this, maybe Secretary Hagel. That is increasing significantly. It has increased in its competency. I think it’s made leaps and bounds over the course of the last few months.

Secretary Hagel, do you — or General, do you want to —

SEN. HAGEL: I would only add that it was June of this year that the president made a decision to support lethal assistance to the opposition, as you all know. We have been very supportive with hundreds of millions of dollars of nonlethal assistance. The vetting process, as Secretary Kerry noted, has been significant. But — I’ll ask General Dempsey if he wants to add anything — but we, Department of Defense, have not been directly involved in this. This is, as you know, a covert action, and as Secretary Kerry noted, probably to go into much more detail would require a closed or classified hearing.

General Dempsey?

SEN. CORKER: As he’s answering that, and if you could be fairly brief, is there anything about the authorization that you’re asking that in any way takes away from our stated strategy of empowering the vetted opposition to have the capacity over time to join in with a transition government, as we have stated from the beginning?

Is there anything about this authorization that in any way supplements that?

GEN. DEMPSEY: To your question about the opposition, moderate opposition, the path to the resolution of the Syrian conflict is through a developed, capable, moderate opposition. And we know how to do that.

Secondly, there’s nothing in this resolution that would limit what we’re doing now, but we’re very focused on the response to the chemical weapons. I think that subsequent to that, we would probably return to have a discussion about what we might do with the moderate opposition in a — in a more overt way. [my emphasis]

The President, as part of covert action (that is, authorized under Article II authority), decided to lethally arm vetted rebels in June. Those efforts were already increasing significantly, independent of the spanking we’re discussing for Assad. Nothing related to the spanking will limit those efforts to arm the rebels (no one comments on it here, but elsewhere they do admit that spanking Assad will degrade his defenses, so the opposite will occur). And General Dempsey, at least, is forthright that the Administration plans to return to Congress after the spanking to talk about increased, overt support for the rebels.

So there’s the spanking.

And then there’s the lethal arming of rebels which is not a part of the spanking, but will coincidentally benefit from it and has been accelerating of late.

Spanking without regime change. And regime change (or at least a negotiated solution).

Which returns us to the content of the AUMF. The White House AUMF was so broad it might have supported a regional war. After members of Congress complained that the President promised no boots on the ground but asked for something far broader, the Senate rolled out an AUMF that still gave the President broad discretion (including to use non-combat boots on the ground), but also recognized the President’s authority to act on his own (those same Article II powers now authorizing covert arming of rebels) in this area.

Jack Goldsmith explains the significance of this clause:

The draft AUMF enhances, through congressional recognition, the President’s claims of independent constitutional authority to use force in Syria.  Here is why.  The draft acknowledges in its last “Whereas” clause that the President “has authority under the Constitution to use force in order to defend the national security interests of the United States.”  This broad and unqualified congressional acknowledgment of independent presidential constitutional power takes on special significance when combined with other “Whereas” findings, especially Congress’s recognition that (a) “Syria’s acquisition of weapons of mass destruction threatens . . . the national security interests of the United States; and (b) “Syria’s use of weapons of mass destruction and its conduct and actions constitute a grave threat to . . . the national security interests of the United States.  (My emphases.)

I think these provisions together constitute congressional acknowledgement that the President has constitutional authority, independent of the AUMF, to use military force to defend against the acknowledged threat to U.S. national security interests posed by the Syrian acquisition and use of WMD.  (In legal jargon, this is not a Jackson category 1 approval of such force, but it is an acknowledgment that the President has “inherent” constitutional power under Jackson category 2 to use force in these circumstances.)  Note that this very broad congressional acknowledgment of presidential power does not suggest any geographical limitation.

The last “Whereas” clause is the broadest such clause I have ever seen.  I believe that the notion of a congressional “whereas” acknowledgment of independent presidential power in an AUMF is a Bush-era innovation.  (I have not seen such clauses in pre-Bush-era AUMFs.)  But the Senate’s draft “Whereas” clause is much broader than the analogous ones during the Bush era.


The “Whereas” language in the draft AUMF gives significant support to the position that the President has some (uncertain) independent constitutional authority to use force in Syria, regardless of what Congress authorizes, and (perhaps) beyond what Congress authorizes.  Since I believe that a unilateral presidential use of force in Syria would go beyond all past OLC precedents, the “Whereas” clause as currently drafted is especially important to the President’s novel constitutional position.

I’ve described this AUMF as telling the President, “Here are some limits we’d like you to abide by, but if you don’t like those, go ahead and operate under your own authority.”

To the extent that the White House can tie its acknowledged covert plans to back the rebels to the other whereas clauses in the AUMF, then it also authorizes that part of the equation.

Then, in yesterday’s markup, John McCain succeeded in adding one more whereas, explicitly stating that regime change was the goal of all this (he also added non-binding policy language later in the AUMF to the same effect).

Whereas on May 21, 2013, the Senate Foreign Relations Committee passed by a 15-3 vote the Syria Transition Support Act (S.960), which found that the President’s goals of Assad leaving power, an end to the violence, and a negotiated political settlement in Syria are prerequisites for a stable, democratic future for Syria and regional peace and security, but absent decisive changes to the present military balance of power on the ground in Syria, sufficient incentives do not yet exist for the achievement of such goals;

That is, there is the AUMF authorizing the limited spanking, and then the whereas language that not only recognizes the President’s authority to do more under Article II, but explicitly lists regime change (and accelerating the arming of rebels, implicitly) among the goals here.

And yet the Administration still claims the AUMF — the limited spanking that coincidentally includes recognition that the President can take other actions on his own — supports very limited action.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

23 replies
  1. der says:

    Getting their Apocalyptic End-Times Battle come hell or high water. And Jesus in a cloud. The crazies mounting up and riding the 4 horses. The earth weeps.

  2. C says:

    “has authority under the Constitution to use force in order to defend the national security interests of the United States.”

    I’m hoping, though not that hopeful, that this won’t stand as some sad turning point in legal history where congress cedes all real authority over the use of force to the president. Right now it looks like they are lining up to neuter their own institution by buying into the entirely false claim that the president has exclusive or independent control over military force. That is disturbing.

  3. orionATL says:

    now that the very recent insertion of american-supported paramilitants into syria is acknowledged, it seems reasonable to inquire whether the u.s. or its allies-in-hiding may have deliberately provoked the syrian gassing to create public/congressional support.

    or to put it differently, “we are using the same claim we used there, but are being more subtle than we were in libya.”

  4. charlie says:

    What is sad is it pretty easy to take care of the problem.

    1. Bomb the shit out of any “regime” element around Aleppo. Shut down the airport.
    2. Declare a no fly zone around Allepo and Idib. Hell invite the Turks in.
    3. Again bomb the airport/supply depots around Damascus. Kill any tank/artillery that moves too.
    4. Put some special forces in the west and shut down imports from Iraq.
    5. watch as the regime loyalists flee!

    fun game.

  5. What Constitution? says:

    @C: Yep. There is no “Article II power to effect regime change”. That’s kind of elemental, shouldn’t it be?

  6. peasantparty says:

    Russia is the only country I see trying to uphold International Law on this.

    Pretty crazy for American’s to see this unfold. Then again, if you followed the Manning Trial you would understand this better.

  7. emptywheel says:

    @C: I think this particular move is part of a continuum that has gone in that direction over the last 12 years.

  8. JohnT says:


    I’ve got an easier way … stay the f*** out of other countries business

    PS not cussing at you, just the neoliberal/neocolonial /neofeudal notion in general

  9. scribe says:

    Let’s be clear about what this whole escapade is about. It’s about budgets and profits. No Serious Person gives a shit about dead children, gas attack or no. If they did, we’d be stopping the bush wars of Africa all the time.

    The decade-plus of declared wars in Afghanistan and Iraq, and the undeclared wars in Pakistan and who-knows-where-else, are winding down. The fact of the matter is that the Americans did grievous damage to AQ in those countries. And the Americans did grievous damage to themselves by the ways they pursued their objectives. But they largely met the objective of destroying AQ.

    That states the problem. Once an objective is achieved, the justification for continuing operations ends. And once the justification for continuing operations ends, the justification for the budget supporting them also ends.

    So, all those contractor welfare queens who got fat and happy supplying the wars of choice the Americans have waged over the last decade-plus are faced with the prospect of declining sales in the future. This prospect is unacceptable.

    So they – their congressional campaign contribution beneficiaries, lobbyists, retired-general-board-members and the like – go about ginning up the justification for a new war, one which will – in its no-boots-on-the-ground nod to the sensitivities of the war-weary public – require the application of expensive high-tech weapons rather than relatively cheap infantrymen. So much the better, that choice. It makes for more and more expensive sales to the government with no need for VA benefit payments extending decades into the future.

    That this putative conflict will involve making Russia hostile to the US is an added benefit. For the last almost-quarter-century – since the fall of the Berlin Wall and Warsaw Pact – the suppliers of expensive, high-tech weapons have been faced with a fundamental quandry that imperils their business. Simply, when a couple knuckleheads can hijack a plane and do a lot of damage, or wire up a dud artillery projectile to wipe out a handful of soldiers, the only real counter to these low-tech threats is boots on the ground, walking patrols with rifles and sussing out where the individual opponents are. An unfriendly relationship with Russia, OTOH, implicates all sorts of high-tech weapons: new jet fighters, aircraft carriers, drones, nuclear bombers and missiles, and who knows what kind of ray guns and other sci-fi crap. The MIC have been looking for a way to return to the Cold War and have tried and tried to get something going with Russia or China in all that time. Within the first months of Bush 43’s administration, there was US surveillance plane forced down onto Chinese territory and all sorts of back and forth. Then, in the heat of the 2008 campaign, there was the crisis regrding Georgia. Remember McSame telling the world “we are all Georgians”? Remember one of his key foreign policy advisors (Randy Scheunemann, IIRC), being dual-hatted as a lobyist for Georgia? Yeah. Remember that idiot Palin barking about Russia – beyond being able to see it from her front yard? McSame and the rest of the DC Establishment have been trying and trying to get something going against Russia for years. They tried to get it going with China and it didn’t work.

    Recall McSame’s closest friend in the Senate was Holy Joe Lieberman, an even greater exponent of goin’ to war than Bomb-everything-first McSame, if that’s possible. The same clown who was Obama’s mentor in the Senate.

    Was McDonough telling Obama that The Word from the MIC was that it was “important” that the USG go to war in Syria? Or was Obama telling McDonough he thought it important. Doesn’t really matter.

    At the policymaker/principal level they all know – they aren’t that stupid – that getting rid of Assad will guarantee AQ or something much like AQ will take control in Syria, and that that result will guarantee an absolute need to continue fighting the terrist threat for years and years to come. And this will be even more complicated, dangerous and, most brilliantly, expensive because Russia with all its resources will be pissed off at us. No matter who – MIC or Obama – was calling the shots during the Rose Garden Walk because the result will be the same. The PNAC plan Kristol laid out in late 2000-early 2001 to decisionmakers and influential people around Europe to his hearers’ horror and indigestion (dinner-table conversation, it was) remains operative. The Americans will destabilize, overthrow and otherwise raise hell in existing governments around the Middle East in service of three objectives: keeping the Saudis happy and pumping oil, ethnic cleansing and redrawing borders to secure good oil deals, and killing brown people. The Euros can go along and come along, or be decreed cheese-eating surrender monkeys and suffer the consequences.

    The core problem remains that the last president who took on the MIC got a Single Bullet through his head and a lot of other body parts. Recall, JFK was looking at detente with the Russians b/c he saw the arms race then existing as both unsustainable and unsurvivable, an impression reinforced by the near miss of the Cuban Missile Crisis. Since then everything has revolved around keeping the MIC happy, fat, and well-budgeted.

    And Obama is nothing if not devoted to preserving his own skin. So, you know what we get.

  10. JTMinIA says:

    I wonder how the people of Hiroshima feel about this idea that bombing-only with no boots-on-the-ground implies a limited action that won’t lead to, e.g., regime change.

  11. GKJames says:

    (1) Puzzling. I was taught that “whereas” clauses, while nice enough, aren’t binding.

    (2) Goldsmith overstates the case about the “whereas” clause that acknowledges presidential authority. It merely affirms the obvious, though by doing so it does raise the question why the drafters felt compelled to include it.

    (3) Does anyone happen to know when “the national security of the United States” morphed into the now ubiquitous “the national security INTERESTS of the United States”? That innocuous-looking modifier is the ultimate salesman’s tool to counter the obvious: virtually none of these scenarios threaten the national security of the US. And given that there’s very little out there that ISN’T in our interest, it’s easy to see why “Bombs away!” is such a perennial favorite. (Note, though, that the AUMF itself curiously qualifies it by referring to the “CORE national security interest” [(b)(4)].

    (4) Do JSOC and/or CIA activities “on the ground in Syria” qualify as “for the purpose of combat operations”?

  12. orionATL says:


    “..(3) Does anyone happen to know when “the national security of the United States” morphed into the now ubiquitous “the national security INTERESTS of the United States”?…”

    i was wondering about that like teeny-tiny addition myself.

    our national security hydra on display.

  13. earlofhuntingdon says:

    Mr. Obama, as is his wont, is being jesuitical. Saying that the AUMF supports or authorizes “very limited action” would be technically correct, but incomplete in a Clintonian way. It would also support virtually any other action.

    It’s a little like saying, “You’ll enjoy this,” without mentioning that the “it” could make you very sick or pregnant. At least in the analogy, but not political reality, the other party to the transaction should already know the likely, undisclosed consequences.

  14. C says:

    @What Constitution?: Yeah, Article II Clause I says:

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    I don’t see regime change or initiating war through covert means in there anywhere. I wonder what Scalia would say?

  15. orionATL says:

    the “fundamental dishonesty” is not just in the hiding of two conflicting efforts,

    the fundamental dishonesty is failing to answer in public and “deferring” to secret session.

    that kerry, dempsey, et al., would dare to hide information justifying a +-war with syria is simply inescusable hiding of information that may well, in fact, probably does, detract greatly from the obama admin’s public argument for war against syria

    – don’t bother to tell me what obamacon is proposing is just a “limited action”.

    attacking another country is war – plain and simple, war.

    to repeat, telling congresscattle that “this is better handled in closed sesdion”, as jkerry repeatedly did,

    should be taken as evidence the obamacon’s evidence is


    -easily refutable

    -likely based on shaky “intelligence”

    – questionable on its face

    – suspiciously self-serving

    what a reagan/gwbu(ll)sh(it) con these right-wing whitehouse/national security dwarves are running.

  16. Joseph R. Stromberg says:

    We haven’t had a proper election since 1788. If we ever do get one, maybe Article II itself should be up for revision or elimination.

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