Remove and Replace Assad?

Terence P. Jeffrey | April 12, 2017 | 5:38am EDT
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In this Sept. 21, 2016 file photo released by the Syrian Presidency, Syrian President Bashar Assad speaks to The Associated Press at the presidential palace in Damascus, Syria. U.S. Secretary of State Rex Tillerson’s statement Tuesday, April 11, 2017, that the reign of President Bashar Assad’s family “is coming to an end” suggests Washington is taking a much more aggressive approach about the Syrian leader. (Syrian Presidency via AP, File)

When President George W. Bush decided he wanted to remove and replace Saddam Hussein, he made a bad decision to go to war in Iraq but a good one to seek congressional authorization first.

Large bipartisan majorities in both houses approved the resolution authorizing Bush to use force.

In the House, it won 296 to 133. Rep. Adam Schiff, now the ranking Democrat on the House intelligence committee, voted for it.

In the Senate, it won 77 to 23. Future Democratic presidential candidates John Kerry and Hillary Clinton joined future Republican presidential candidate John McCain in supporting it. So, too, did Harry Reid, the future Democratic majority leader.

Most of Washington's elected elite joined in making perhaps the most imprudent foreign policy decision of this century.

The House passed the authorization on Oct. 10, 2002; the Senate, the next day. Fifteen years later, the battle for Iraq continues. But the adversary is no longer the secular dictator Saddam Hussein — whom U.S. forces captured less than 11 months after entering Iraq — it is the Islamic State.

This group, according to the State Department, is not a new one.

It was founded "in the 1990s" by the late Abu Musab al Zarqawi, and was originally called "al Tawhid wal-Jihad." It survived the Iraq War. It survived the Bush and Obama presidencies. It seized the Iraqi city of Mosul in June 2014.

Nearly three years later — despite the efforts of the post-Saddam Iraqi military backed by U.S. air power and limited ground forces — it still holds part of that city.

And its self-declared caliphate extends into neighboring Syria while all around the globe terror groups and terrorists pledge allegiance to its cause.

The Iraq War unleashed a greater threat than it destroyed.

So, why was it a good decision for Bush to seek congressional authorization to wage it? Because, if he had not, his action would not only have been unwise, it would have been unconstitutional.

Article 1, Section 8, Clause 11 of the Constitution says: Congress shall have power to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

The framers themselves repeatedly stated the "original intent" of this clause.

On Aug. 17, 1787, according to James Madison's notes on the Constitutional Convention, the draft section of the Constitution giving Congress the power "to make war" came up in the convention.

Pierce Butler of South Carolina proposed a change that other delegates adamantly rejected.

"He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it," Madison summarized in his notes.

Elbridge Gerry of Massachusetts joined with Madison himself in making a counter proposal. "Mr. M(adison) and Mr. Gerry moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks."

As constitutional scholar Louis Fisher has pointed out in his definitive book, "Presidential War Power," George Washington, who presided over the Constitutional Convention when it approved Madison's and Gerry's language on the war power, followed its meaning punctiliously as president of the United States.

When William Blount, who was governor of the territory that later became Tennessee, lobbied the Washington administration to engage in offensive military action against Native Americans in the region, Washington declined.

"All your letters have been submitted to the President of the United States," then-Secretary of War Henry Knox wrote Blount as noted in Fisher's book. "Whatever may be his impressions relatively to the proper steps to be adopted, he does not conceive himself authorized to direct offensive operations against the "Chickamaggas." If such measures are to be pursued they must result from the decisions of Congress who solely are vested with the power of war."

When President Donald Trump ordered military action against the Assad regime last week, he had no more constitutional authority than President Washington had in 1793 to order military action against the Chickamaggas.

Washington did not act unilaterally. Trump did. Which one was the constitutional originalist?

Amb. Nikki Haley explained to the U.N. Security Council that Trump was responding to the Syrian regime's chemical weapons attack in Syria that killed innocent civilians.

"We are prepared to do more, but we hope that will not be necessary," she said.

Having acted unconstitutionally in using force against the Assad regime without prior congressional authorization, the question now is whether Trump will act unwisely in seeking to remove Assad's regime without weighing the long-term consequences.

Will Trump, like Bush, unleash a greater threat than the one he seeks to destroy?

Like Saddam, Assad is a secular dictator. Like Saddam, he has done evil things to maintain power. Like Saddam, who represented a Sunni minority in a Shiite majority country, Assad represents an Alawite minority in a Sunni majority country. Like Saddam, Assad sees Islamist radicals as a threat.

And like Saddam, Assad, if removed from power, will leave a vacuum that the Islamic State, or those who share its ideology, would seek to fill.

And as in Iraq, a U.S. regime-changing effort in another fragile Middle Eastern state would be a profound mistake — even if Congress approved it with a bipartisan vote.

Terence P. Jeffrey is the editor-in-chief of

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