This week, Congress passed a continuing resolution for the fiscal year 2015, H.J. Res. 214, with a roll call of 78-22 in the Senate and 319-108 in the House. [Text, PDF.] Section 149 of the resolution authorizes the Department of Defense to “provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian groups.” (On Wednesday, the House had voted on this authorization in isolation, approving it 273-156).
President Obama commented favorably on the resolution, and is expected to sign it shortly:
I’m pleased that Congress — a majority of Democrats and a majority of Republicans, in both the House and the Senate — have now voted to support a key element of our strategy: our plan to train and equip the opposition in Syria so they can help push back these terrorists. As I said last week, I believe that we’re strongest as a nation when the President and Congress work together. And I want to thank leaders in Congress for the speed and seriousness with which they approached this urgent issue — in keeping with the bipartisanship that is the hallmark of American foreign policy at its best.
Congressional approval for this effort is notable in its own right, and may also add to ongoing debate over domestic legal authority for United States military operations in Iraq and Syria.
Section 149 is not, on its face, congressional authorization for the President to use force against the Islamic State. But congressional votes of this kind can nonetheless influence interpretation of the President’s power to act. Ryan noted on September 9 that appropriations might be a vehicle for some form of congressional “authorization.” And Charlie Savage of The New York Times highlighted yesterday the complex equations of congressional “intent” in situations where the legislature does not expressly authorize or disapprove of Presidential action (often referred to as Youngstown Category II).
In this context, Section 149 is worth consulting closely, and the full text is below. I encourage anyone interested in this ongoing debate to read it in its entirety. Note especially section (i)—denying any intent for the appropriation to be read as a broader force authorization; and section (j)—denying any effect of the appropriation on the President’s reporting obligations under the War Powers Resolution. See also 50 U.S.C. 1547(a)(1), the provision of the War Powers Resolution designed to prevent express reliance upon appropriations measures as authorization.
Finally, for further reading in a conceptually related—though not parallel—context, consult this 2000 Office of Legal Counsel memorandum on “Authorization for Continuing Hostilities in Kosovo.” The Clinton Justice Department analyzes funding as a means to express congressional authorization, especially in Section III, and the opinion provides a sense of how arguments about congressional approval may develop going forward. The memorandum is especially interesting for its argument that 50 U.S.C. 1547(a)(1) cannot be a total bar to authoriziation-via-appropriation, but must be read as a “background principle.”
(a) The Secretary of Defense is authorized, in coordination with the Secretary of State, to provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian groups and individuals for the following purposes:
(1) Defending the Syrian people from attacks by the Islamic State of Iraq and the Levant (ISIL), and securing territory controlled by the Syrian opposition.
(2) Protecting the United States, its friends and allies, and the Syrian people from the threats posed by terrorists in Syria.
(3) Promoting the conditions for a negotiated settlement to end the conflict in Syria.
(b) Not later than 15 days prior to providing assistance authorized under subsection (a) to vetted recipients for the first time–
(1) the Secretary of Defense, in coordination with the Secretary of State, shall submit to the appropriate congressional committees and leadership of the House of Representatives and Senate a report, in unclassified form with a classified annex as appropriate, that contains a description
(A) the plan for providing such assistance;
(B) the requirements and process used to determine appropriately vetted recipients; and
(C) the mechanisms and procedures that will be used to monitor and report to the appropriate congressional committees and leadership of the House of Representatives and Senate on unauthorized end-use of provided training and equipment and other violations of relevant law by recipients; and
(2) the President shall submit to the appropriate congressional committees and leadership of the House of Representatives and Senate a report, in unclassified form with a classified annex as appropriate, that contains a description of how such assistance fits within a larger regional strategy.
(c) The plan required in subsection (b)(1) shall include a description of–
(1) the goals and objectives of assistance authorized under subsection (a);
(2) the concept of operations, timelines, and types of training, equipment, and supplies to be provided;
(3) the roles and contributions of partner nations;
(4) the number of United States Armed Forces personnel involved;
(5) any additional military support and sustainment activities; and
(6) any other relevant details.
(d) Not later than 90 days after the Secretary of Defense submits the report required in subsection (b)(1), and every 90 days thereafter, the Secretary of Defense, in coordination with the Secretary of State, shall provide the appropriate congressional committees and leadership of the House of Representatives and the Senate with a progress report.
Such progress report shall include a description of–
(1) any updates to or changes in the plan, strategy, vetting requirements and process, and end-use monitoring mechanisms and procedures, as required in subsection (b)(1);
(2) statistics on green-on-blue attacks and how such attacks are being mitigated;
(3) the groups receiving assistance authorized under subsection (a);
(4) the recruitment, throughput, and retention rates of recipients and equipment;
(5) any misuse or loss of provided training and equipment and how such misuse or loss is being mitigated; and
(6) an assessment of the effectiveness of the assistance authorized under subsection (a) as measured against subsections (b) and (c).
(e) For purposes of this section, the following definitions shall apply:
(1) The term “appropriately vetted” means, with respect to elements of the Syrian opposition and other Syrian groups and individuals, at a minimum, assessments of such elements, groups, and individuals for associations with terrorist groups, Shia militias aligned with or supporting the Government of Syria, and groups associated with the Government of Iran. Such groups include, but are not limited to, the Islamic State of Iraq and the Levant (ISIL), Jabhat al Nusrah, Ahrar al Sham, other al-Qaeda related groups, and Hezbollah.
(2) The term “appropriate congressional committees” means–
(A) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives; and
(B) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate.
(f) The Department of Defense may submit a reprogramming or transfer request to the congressional defense committees for funds made available by section 101(a)(3) of this joint resolution and designated in section 114 of this joint resolution to carry out activities authorized under this section notwithstanding sections 102 and 104 of this joint resolution.
(g) The Secretary of Defense may accept and retain contributions, including assistance in-kind, from foreign governments to carry out activities as authorized by this section which shall be credited to appropriations made available by this joint resolution for the appropriate operation and maintenance accounts, except that any funds so accepted by the Secretary shall not be available for obligation until a reprogramming action is submitted to the congressional defense committees: Provided, That amounts made available by this subsection are designated by the Congress for Overseas Contingency Operations/Global War on Terrorism pursuant to section 251(b)(2)(A) of the Balanced Budget and Emergency Deficit Control Act of 1985: Provided further, That such amounts shall be available only if the President so designates such amounts and transmits such designations to the Congress.
(h) The authority provided in this section shall continue in effect through the earlier of the date specified in section 106(3) of this joint resolution or the date of the enactment of an Act authorizing appropriations for fiscal year 2015 for military activities of the Department of Defense.
(i) Nothing in this section shall be construed to constitute a specific statutory authorization for the introduction of United States Armed Forces into hostilities or into situations wherein hostilities are clearly indicated by the circumstances.
(j) Nothing in this section supersedes or alters the continuing obligations of the President to report to Congress pursuant to section 4 of the War Powers Resolution (50 U.S.C. 1543) regarding the use of United States Armed Forces abroad.