Anything a president does sets a precedent for the leaders who come after him. Except when it doesn't. That is one constitutional reality brought home by President Obama's unexpected decision to delay military action against Syria until Congress gives him authorization. With more than 200 examples to choose from in the history of American military operations over the past two centuries, a president can select just about any option and still be following a path first trod by a predecessor.
Future White Houses will study Obama's actions. But what he has done may come back to haunt him first. The danger in Obama's action is not in any precedent he sets for the presidents to come. It is in the precedent he is setting for himself, particularly regarding Iran. Tehran is less than 900 miles — a two-hour flight — from Damascus. But Iran is seen as a far greater potential threat both to Israel and to American interests than is Syria, despite the regional instability triggered by the civil war and by Syria's support of terrorists. If Iran develops nuclear-weapons capability, Obama may want to strike quickly rather than following his own example with Syria and wait for a debate on Capitol Hill.
That is why it was important that when he announced his request to Congress, Obama emphasized, "I believe I have the authority to carry out this military action without specific congressional authorization." History and the preponderance of legal opinion on the Constitution agree. Only five of those 200-plus instances of military operations followed Congress's exercise of its constitutional right to declare war. Others followed congressional resolutions such as the 1964 Tonkin Gulf Resolution that supported President Johnson's actions against North Vietnam and the 1991 vote that authorized President Bush to wage the first Persian Gulf War.
But most were strictly presidential actions, and no court has ever held they were unconstitutional. Even the 1973 War Powers Act that sought, post-Vietnam, to prevent such solo presidential action has done little to restrain later operations. And that law may itself be an unconstitutional infringement on the powers of a commander in chief — a ruling that neither wary chief executives nor unsure Congresses have sought.
"The fact is, the Constitution is ambiguous, and nothing that gets done can change that fact," says Anthony Cordesman, a widely respected former director of intelligence assessment at the Pentagon and a longtime defense expert at the Center for Strategic and International Studies. "Yes, this is a precedent. But is it binding? No, not continually. It can't be."
Marvin Kalb, author of The Road to War, a study of presidential use of force, agrees that Obama is setting no precedent in asking for congressional authorization. But Kalb is baffled by the way the president has gone about this. Obama is "building a new kind of precedent by first putting the world on notice that he has the authority to attack Syria and an attack is imminent — and then putting this projected attack on hold while he gets Congress to authorize it," Kalb told National Journal. "He has, with this approach, reduced the power of a president's word and America's credibility in the troubled Middle East." Residents of that volatile region are "scratching their heads" and asking, "What's he really up to?" Kalb said, adding, "He is absolutely producing problems with respect to Iran." Even before this, skepticism abounded that Obama meant what he had said about preventing Iran from gaining nuclear capability. "Now, the doubts have multiplied considerably," Kalb said. No one can be sure how the president will respond to any evidence on Iran. Will he, as he is doing on Syria, ask Congress for authorization to strike Iran? Or will he, as he did in Libya, bypass Congress and act on his own authority?
And when it comes time to strike, how will Obama sell the need to risk American treasure or American lives? No recent president, including this one, has found an effective way to outline the U.S. role as the world's only superpower when it is unclear if the action is driven by threatened national interests or by humanitarian concerns. With no American interests at stake, the Clinton administration turned a blind eye to genocide in Rwanda in 1994, in which Hutus killed up to a million rival Tutsis and their sympathizers. President Clinton later called his inaction one of his biggest regrets in office. But few at the time believed that American troops should be deployed on a solely humanitarian mission.
Two decades later, the White House has had a difficult time explaining whether the Syrian mission is a reaction to a chemical attack that the U.S. says killed more than 1,400 or a defense of American national security interests. The answer is that this strike is both. "We live in a world where the United States can't turn every war into a moral crusade," Cordesman says. "But it also can't afford to ignore conflicts which have a major impact on its strategic interests."
The reality is that this is not a choice between humanitarianism and realpolitik. It is both, and the two aims are directly related. That is the administration's most daunting challenge in winning over a war-weary public and a skeptical Congress. In this case, you can't separate proliferation of chemical weapons from humanitarian and U.S. strategic interests. Unlike Rwanda, this is not an either-or question — no matter the precedents of past presidential decisions.