WASHINGTON – The Biden administration’s recent airstrikes in Syria have resurrected the debate in Washington on both the president’s legal ability to independently authorize military action and whether the strikes are strategically prudent in the first place.
The ensuing debate will likely set the tone for President Joe Biden’s approach to Iran and its proxy forces in the region, as well as how his administration plans on interpreting domestic and international law in order to best protect its interests.
Last month, the United States targeted a structure belonging to what it described as Iran-backed Iraqi militias in Syria, on the orders of Biden. The move came in response to recent rocket attacks on U.S. targets in Iraq, which killed one U.S.-led coalition contractor and injured eight other people in the northern city of Erbil. A member of the Kata’ib Hezbollah militia said one of its members was killed in the attack, while a U.K.-based war monitor and local sources said 17 died.
While the conversation regarding war powers dates back to the Vietnam War era, the current debate primarily revolves around two Authorizations for Use of Military Force passed by Congress – one after the 9/11 terror attacks in 2001, and the other in 2002 to approve the Iraq War. It gave then-President George W. Bush the authority to “use all necessary and appropriate force against those nations, organizations, or persons” he deemed responsible for the attacks (i.e. Al-Qaida and the Taliban in Afghanistan).
In the decades that followed, the authorizations have stretched beyond their original context. The 2002 authorization was used to justify the 2020 assassination of Iranian Gen. Qassem Soleimani. The proliferation of militias, non-state actors and splinter groups has also complicated the questions of war powers and use of force.
Unable or unwilling
Kal Raustiala, director of UCLA Ronald W. Burkle Center for International Relations, notes that when it comes to these issues, there are considerations of both international and domestic law that inform each other while presenting their own respective sets of issues.
- Over 100 Bipartisan U.S. Lawmakers Urge Biden: Curb Iran's Behavior in Middle East
- How Biden Can Strike at China by ‘Saving’ Iran
- For the Biden Administration, Saudi Arabia Is Both an Ally and a Problem
Regarding international law, “the issue becomes: Are you invited by the state involved?” Raustiala says. “It’s fine if you’re invited to do that by the sovereign, or if you have a [UN] Security Council resolution, or you’re engaged in self-defense.” The latter justification, he explains, is critical.
But using self-defense to legitimize foreign strikes tends to cause deep divisions within the attacking country. “Are you just stopping the attack, or stopping the ability to attack, or are you actually taking out the future ability to attack? A country like the United States typically wants to stop the attack, and make sure it never happens again, but some people are uncomfortable with that.”
If a state like Iraq or Syria can’t control threats emanating from within its borders – if it is unable or unwilling to do so – the U.S. government, and those of countries like Israel and Turkey, say that a foreign power can strike, Raustiala explains.
But the domestic implications of this give way to partisan debates, he says. Several lawmakers, primarily Democratic, have sounded the alarm on the implications of Biden’s actions in Syria, noting they were opposed to the Trump administration’s similar justifications for the assassination of Soleimani.
Senators Tim Kaine and Todd Young introduced bipartisan legislation to repeal two Authorizations for Use of Military Force passed in 1991 and 2002 specifically related to the use of force in Iraq, which have been used to justify strikes on Iraqi targets in Syria. The White House indicated it would support the legislation.
The left has always been worried about warmongering by the executive branch, Raustiala says, citing the long-standing concern about the use of force abroad and the idea that presidents tend to be lured into traps of demonstrating toughness. “There’s a generally held idea that we need to rein that in and Congress ought to play a bigger role. That all sounds good, but it turns out to be really hard to implement,” he says.
Elizabeth Tsurkov, a fellow at the Newlines Institute for Strategy and Policy, believes the debate surrounding whether the use of force is lawful misses the point. “I spend most of my time talking to Syrians and Iraqis, and the whole debate in Washington is utterly ridiculous to them,” she says. “They keep wondering why people aren’t asking, ‘Why are there Iraqis in Syria in the first place?’”
She adds, “Liberals and progressives need to care about human rights norms across the board. You can’t have a liberal world order if countries are allowed to use proxy forces to ethnically cleanse entire areas. This narrow obsession with U.S. law and abuses keeps people from looking at the larger picture. Sometimes you do need to use force to say this is not an acceptable thing to do,” she says. “There is such a jarring disconnect between the discourses of locals and of Americans about this.”
Presidents have lots of discretion at their disposal, Raustiala notes, with the idea of presidential empowerment to take military action dating back to the very beginning of the American Republic.
“That was the point of the president – we needed someone who could act swiftly,” he says, adding that the executive branch has broadly interpreted whether the president is able to take specific actions in the interest of national security.
Biden, whose foreign policy has been defined by its pragmatism, will be greatly informed by his four decades spent in the Senate and as a member of the Foreign Relations Committee. He will want congressional approval, and believes that “there are prerogatives of the Senate, or the Congress generally, that ought to be protected,” Raustiala says.
He doubts that a foundational shift in the relationship between Congress and the presidency is on the horizon, though he acknowledges the possibility of some movement. Despite Biden’s respect for the powers of the legislature, “When people get into the office of the presidency, they seem to really start to get annoyed by the fetters of Congress. Yes, he spent 40 years in the Senate. He also spent most of those years wishing he was in the White House,” Raustiala notes.
He points to former President Barack Obama’s drone program, which gave him the power to take action – which he frequently did. “Everything else in the domestic realm, [presidents] have to work with others. This is one of those domains where they don’t, and it’s probably very liberating.”
Raustiala explains that the 1973 War Powers Act, which was introduced to curb the president’s ability to send U.S. forces into armed conflicts without congressional consent, was an attempt by the legislative branch to wrestle back some of its authority on war.
“People have been writing about the imperial presidency for 50 years now. In many ways it’s only got worse,” he says. “Congress has many levers at their disposal if they aren’t happy, but they don’t use them. There’s so much partisanship, but really, across the board, Congress has been happy to let the president run things and weigh in on rare occasions.”
While there’s been a push to terminate these authorizations and recast them in a way that would not let them be used carte blanche for war, “That’s a little step,” he says. “That’s not really changing the whole structure, which is very pro-executive branch.”
A new approach to Iran
Raustiala cautions that it is hard to predict whether Biden’s strikes in Syria could portend a more robust approach to Iranian proxies in the region. “Both Democrats and Republicans worry about an event where U.S. troops and U.S. nationals are harmed. We know that there are all these splinter groups out there, constantly metastasizing in different ways, and we’re going to keep going after them. I don’t expect the Biden administration to become more forward-leaning in that way unless they absolutely have to, only because I think the pressure of bipartisan political opinion is that the Middle East has been a morass for us, and we need to be disengaging.”
While Israel “lives in the neighborhood” and has no choice to engage, Raustiala says the United States does. “I think you see more and more in American politics that desire to disengage – fewer strikes and smaller targets.”
The Biden administration used the recent Syria strikes to demonstrate that attacks on its bases will result in retaliation, according to Tsurkov. “They wisely wanted to avoid carrying out the strike in Iraq itself, because this is then used by the Iranian-backed political factions, which are tightly linked to these militias,” she says.
“The other place where these militias are deployed is Syria, where the U.S. can basically carry out strikes wherever it wants – there’s much less sympathy among Iraqis toward individuals deployed beyond the country’s borders who are clearly fighting for some other agenda,” she adds, stressing that this response would not lead to further escalation, nor could it be used as a political tool for Iranian-backed factions inside Iraq.
The Biden administration, meanwhile, must contend with increasing aggression from Iran, informed by both internal Iranian political dynamics and the spillover from actions undertaken by the Trump administration. “On the one hand, the U.S. clearly seek rapprochement with Iran and a return to the JCPOA,” Tsurkov says, referring to the Iran nuclear deal. “On the other hand, there are essentially unprovoked attacks by these militias that keep firing at the U.S.”
This diverges from the Obama administration’s approach, “which was just to fully try to appease Iran and ignore the consequences of Iranian expansionism,” Tsurkov adds. “Biden is trying to take a more forceful approach, but the U.S. officials in charge of the Iran file will definitely exert internal pressure to curtail American retaliatory strikes against Iranian-backed forces.
“If Iranian-backed militias stopped firing at the U.S., things would clearly head toward de-escalation and a return to the JCPOA,” she says. “Thus far, it hasn’t happened.”