These days President Obama and Secretary Kerry sound like our former leaders leading up to the Vietnam and Iraq wars with their insistence on attacking Syria.
The reason is the same (national security) and so too is the rationalization (non-action signifies weakness as a paper tiger). The difference is that this time our allies and the people are not persuaded. Except for France our allies are not in support and a recent Reuters poll shows that 60% of American people are against using force.
President Obama is right in thoroughly debating the issue before he acts but he is mistaken in thinking that an attack does not require authority. The President is restrained by the rules of international law and by his obligations as commander in chief under the US constitution and there are also political and moral factors to be considered.
Under the Geneva Conventions the UN Security Council can authorize force against a nation if there is irrefutable evidence an atrocity is occurring.
In the case of Syria no such authority is forthcoming and is not likely to be obtained. But a Security Council resolution may not be necessary if there is an overwhelming humanitarian necessity accepted by the international community as a whole.
This is the view of top legal counsel in England who accept that the limited use of force proportionate to the humanitarian objective would be legal (Syria Intervention – it may not be wise , but using force maybe lawful – Joshua Rozenberg, The Guardian, August 28, 2013).
This criterion was used to justify military action in 1999 in Kosovo.
But this justification would hardly be available to President Obama because the condition that it be “accepted by the international community” is not met. The Security Council is not even calling for a vote, NATO has not asked for an attack and the Middle East region has not asked for US intervention.
There is also a provision in the UN Charter (to which the US is a signatory) that nations may defend themselves only once they are attacked.
This would have made the Iraq war unlawful except that the Bush administration justified it as a pre-emptive strike against a “rogue state and terrorists”. Even if President Bush was right it would be hard to make the case that Assad’s gasing of his people can be linked to international terrorism.
An attack on Syria would be an act of war (admitted by General Dempsey, Chairman of the Joint Chiefs) and would entitle Syria and its allies to retaliate. Conversely, if another country without any provocation launched an attack on US cities, America would see it as an act of war and be free to retaliate in self-defense.
This is even less helpful to the President.
Under Article 2, section 2 of the US constitution the President can wage wars as commander in chief.
Under Article 1, section 8 Congress has the power to declare war- authorize hostilities at any level and fund them.
There has been a lot of discussion about these provisions but legal scholars agree that if the US is attacked the President can order troops to fight (Balance of War Powers: The US President and Congress, by Robert McMahon, September 1, 2013 – Council on Foreign Relations).
What is more debateable is whether the President can initiate military force in other situations.
Historically in 5 conflicts Congress has voted to declare war but this power has not been used since World War II. On 16 other occasions Congress has authorized the use of force and not declared war. On 6 occasions Congress voted but did not send bills to the President, namely Grenada, Panama, Somalia, Haiti, Bosnia and Kosovo (Congress and The Power to declare war by Charles A. Stevenson, September 9, 2013 – Los Angeles Times).
Contrary to what the President says, without Congressional authority, an attack on Syria would be unconstitutional since it was not in self-defense.
The first provision of the War Powers Resolution 1973 (called the War Powers Act) gives the President the power to commit troops to offensive operations anywhere in the world he chooses and for any reason without Congressional consent for 60 to 90 days (but he must inform Congress within 48 hours).
But this is contradicted by section 2(c) which states that the presidential power to initiate military action is limited to (1) a declaration of war, (2) a specific statutory authorization or (3) a national emergency created by an attack on the US.
Furthermore, section 8 (d) expressly says that nothing in the Act shall grant any authority to the President with respect to the introduction of the US armed forces into hostilities which authority he would not otherwise have had.
The provisions of the War Powers Act are unsettled and controversial, for example, it is not clear if the time limits apply to both peaceful missions as well as hostile operations with boots on the ground and casualties. So in my opinion, if the President relies on this statute to justify an assault on Syria he will be standing on sticky ground.
IF THE UN AUTHORIZES AN ATTACK IS CONGRESSIONAL APPROVAL STILL NECESSARY?
The answer seems to be yes because under Article 43 of the UN Charter, UN members shall make available to the Security Council, in accordance with special agreements, armed forces and other assistance. Each nation would ratify those agreements in accordance with their respective constitutional processes.
Section 6 of the UN Participation Act 1945 states that the special agreements shall be subject to the approval of Congress by Act or joint resolution.
IF THE PRESIDENT ACTS WITHOUT AUTHORIZATION WHAT SANCTIONS DO CONGRESS HAVE?
In such a situation Congress can use its power of the purse and refuse to pass a law to fund the operation.
However, the courts will not stop the President unless Congress passes a law to do so (Dellums v Bush, 752 F Supp.1141 (1990). But this law would be subject to the Presidential veto which the President could enforce with the support of only 34 senators which he would most likely get and would prevail even if the other 501 members are opposed (Is Operation Odyssey Dawn Constitutional? Part V by James Lindsay, The Water’s Edge, April 5, 2011- Council of Foreign Relations).
So in this respect the war powers gravitate to the White House in practice, if not in law.
LEGAL AND POLITICAL IMPLICATIONS OF THE SYRIA SITUATION
Presidential power over war is a mixture of legal and political considerations.
Some legal scholars claim that by seeking Congressional authorization the President is weakening the Presidency vis-à-vis the Congress with respect to war powers and making Congressional authority a necessity even in small-scale military operations.
Curtis Bradley, Law Professor at Duke University, argues against this saying the claim is too speculative because even if Congress votes down an authorization bill and the President declines to use force he may have done it for political reasons (since the country is politically divided on Syria) or because of legal constraints or a mixture of both. And a future President faced with different circumstances might not necessarily follow the same path (War Powers, Syria and Non-Judicial Precedent, September 2, 2013 – Lawfare).
Then there are certain to be some adverse political repercussions that an attack might bring. Russia has servicemen deployed at its naval base in Tartus in Syria. Also, pursuant to its alliance with Syria, Iran is implementing several industrial projects in Syria with numerous personnel on the ground at cement factories, car assembly lines, power plants and a silo.
Russia and Iran will not take too kindly to the killing of their nationals resulting from bombing which they consider unlawful.
Lastly, there is also the question of morality. If we start bombing Syrian chemical installations we will inevitably kill some of the same people we are purporting to protect, namely, innocent civilians as well as releasing deadly toxins into the atmosphere which would cause an environmental disaster.
In the end, I hope that the President will not follow through with his desire to attack Syria. Not only because it does not have international or popular support but also because two wrongs don’t make a right.
Victor A. Dixon
September 14, 2013