by Robert E. Hunter
Now, after careful deliberation, I have decided that the United States should take military action against Syrian regime targets. This would not be an open-ended intervention. We would not put boots on the ground. Instead, our action would be designed to be limited in duration and scope.
I’ve [...]]]>
by Robert E. Hunter
Now, after careful deliberation, I have decided that the United States should take military action against Syrian regime targets. This would not be an open-ended intervention. We would not put boots on the ground. Instead, our action would be designed to be limited in duration and scope.
I’ve made a second decision: I will seek authorization for the use of force from the American people’s representatives in Congress….this morning, I spoke with all four congressional leaders, and they’ve agreed to schedule a debate and then a vote as soon as Congress comes back into session.
–President Barack Obama, August 31, 2013
President Barack Obama’s announcement this weekend that he has “decided that the United States should take military action against Syrian regime targets” is remarkable for many reasons, in particular because he coupled it with a commitment to “seek authorization for the use of force from…Congress.”
The first remarkable element is that he has already taken the decision to strike before fully engaging Congress, instead of the usual practice of reserving judgment on possible military action until that process is complete. This immediately begs the question “What if Congress balks?” Does the president go ahead anyway? And if Congress turns him down — after all, he is not “consulting” but “seek[ing] authorization” — does that affect his (and America’s) credibility, as the author of the “red line” against the use of chemical weapons by the Syrian government? Proponents of a military strike are already making that point, although, in this writer’ judgment, it is grossly overdrawn, and no one who wishes us ill should put much weight on this proposition.
The best counterargument is that, at a time when the UN and others are still assembling evidence on the use of chemical weapons (undeniable) and “who did it” (probably the Syrian government), waiting awhile is not a bad thing. Obama covered the point about risk of delay by citing the Chairman of the Joint Chiefs of Staff “…that our capacity to execute this mission is not time-sensitive; it will be effective tomorrow, or next week, or one month from now.” Taking the time “to be sure” is thus useful; as is the value in trying to build support in Congress, especially given the clarity of memory about the process leading up to the US-led invasion of Iraq a decade ago, when the intelligence “books” were “cooked” by Bush administration officials, as well as by the British government.
The second remarkable element is that the president did not ask Congress to reconvene in Washington in the next day or two, but is content to wait until members return on September 9th. This provides time for the administration to build its case on Capitol Hill, supporting a decision the president says he has already taken; but it also risks diminishing the perceived sense of importance that his team, notably Secretary of State John Kerry, here and here, has been building about the enormity of what has been done.
A related factor is that the United States will not be responding to a direct assault on the United States or its people abroad, civilian or military, and the case for America’s taking the lead is less about our interests than what, at other times, has been called America’s role as the “indispensable nation.” As has been made clear by all and sundry, if the US does not act, no one else will shoulder the responsibility. But this lack of a direct threat to the nation heightens the president’s need to make his case that the US must take the lead.
The need to make the case to Congress was hammered home by the British parliament’s rejection of a UK role in any attack on Syria, despite the lead taken by Prime Minister David Cameron and Foreign and Commonwealth Secretary William Hague in pressing for military action — and thus helping to “box in” the US president. No doubt, what Parliament did influenced Obama’s decision to get the US Congress firmly on record in supporting his decision to act.
A third remarkable element, though not surprising, is that the administration has apparently given up on the United Nations. To be sure, Russia and China would veto in the Security Council any resolution calling for force; but it would have been common practice — and may yet be done — for the US to apply to the recognized court of world opinion by at least trying, loud and long, to establish an international legal basis for military action, even it fails to achieve UN agreement. There is precedent for this approach, notably over Kosovo in 1998, where the UN failed to act (threat of vetoes), but the US at least made a “college try” and demonstrated the point it sought to make. This made it easier for individual NATO allies to adopt the fudge that each member state could decide for itself the legal basis on which it was prepared to act.
But the most remarkable element of the President’s statement is the likely precedent he is setting in terms of engaging Congress in decisions about the use of force, not just through “consultations,” but in formal authorization. This gets into complex constitutional and legal territory, and will lead many in Congress (and elsewhere) to expect Obama — and his successors — to show such deference to Congress in the future, as, indeed, many members of Congress regularly demand.
But seeking authorization for the use of force from Congress as opposed to conducting consultations has long since become the exception rather than the rule. The last formal congressional declarations of war, called for by Article One of the Constitution, were against Bulgaria, Romania, and Hungary on June 4, 1942. Since then, even when Congress has been engaged, it has either been through non-binding resolutions or under the provisions of the War Powers Resolution of November 1973. That congressional effort to regain some lost ground in decisions to send US forces into harm’s way was largely a response to administration actions in the Vietnam War, especially the Tonkin Gulf Resolution of August 1964, which was actually prepared in draft before the triggering incident. The War Powers Resolution does not prevent a president from using force on his own authority, but only imposes post facto requirements for gaining congressional approval or ending US military action. In the current circumstances, military strikes of a few days’ duration, those provisions would almost certainly not come into play.
There were two basic reasons for abandoning the constitutional provision of a formal declaration of war. One was that such a declaration, once turned on, would be hard to turn off, and could lead to a demand for unconditional surrender (as with Germany and Japan in World War II), even when that would not be in the nation’s interests — notably in the Korean War. The more compelling reason for ignoring this requirement was the felt need, during the Cold War, for the president to be able to respond almost instantly to a nuclear attack on the United States or on very short order to a conventional military attack on US and allied forces in Europe.
With the Cold War now on “the ash heap of history,” this second argument should long since have fallen by the wayside, but it has not. Presidents are generally considered to have the power to commit US military forces, subject to the provisions of the War Powers Resolution, which have never been properly tested. But why? Even with the 9/11 attacks on the US homeland, the US did not respond immediately, but took time to build the necessary force and plans to overthrow the Taliban regime in Afghanistan (and, anyway, if President George W. Bush had asked on 9/12 for a declaration of war, he no doubt would have received it from Congress, very likely unanimously).
As times goes by, therefore, what President Obama said on August 29, 2013 could well be remembered less for what it will mean regarding the use of chemical weapons in Syria and more for what it implies for the reestablishment of a process of full deliberation and fully-shared responsibilities with the Congress for decisions of war-peace, as was the historic practice until 1950. This proposition will be much debated, as it should be; but if the president’s declaration does become precedent (as, in this author’s judgment, it should be, except in exceptional circumstances where a prompt military response is indeed in the national interest), he will have done an important and lasting service to the nation, including a potentially significant step in reducing the excessive militarization of US foreign policy.
There would be one added benefit: members of Congress, most of whom know little about the outside world and have not for decades had to take seriously their constitutional responsibilities for declaring war, would be required to become better-informed participants in some of the most consequential decisions the nation has to take, which, not incidentally, also involve risks to the lives of America’s fighting men and women.
Photo Credit: Truthout.org
]]>by Wayne White
The Bush administration’s deception and irresponsible military action involving Iraq had a wide-ranging adverse impact on populations in countries critical to the enforcement of international standards regarding war crimes. Yesterday’s vote by the British parliament to oppose UK participation in military action against Syria illustrates just how deep that [...]]]>
by Wayne White
The Bush administration’s deception and irresponsible military action involving Iraq had a wide-ranging adverse impact on populations in countries critical to the enforcement of international standards regarding war crimes. Yesterday’s vote by the British parliament to oppose UK participation in military action against Syria illustrates just how deep that mistrust and anxiety still runs today. Yet, as British Prime Minister David Cameron has said, failure to act could give the Syrian regime a virtual “green light” to take even more brutal measures against the opposition and Syrian civilians. Nonetheless, the vote should warn the Obama Administration to slow down (and perhaps scale back) its plans for punitive military action considerably in order to address the serious concerns that surround it.
Five days after the August 21 attack, we have just learned, a regime attack was launched against an urban area in the vicinity of Aleppo using incendiary munitions that terribly burned scores of schoolchildren. This additional outrage took place even before Bashar al-Asad and his unconditional allies in Moscow and Tehran were buoyed by the news from London. Though not banned, the use of horrific flammable munitions against an urban area could offer yet another a foretaste of what is to come in the absence of a firm international response.
Official and public disquiet over the planned strike emanating from the UK, Germany, global media, and the US typically features concerns associated with the distortions of intelligence and military overreach of the Bush Administration ten years ago. Although wariness toward potentially deceitful government behavior is a healthy counterbalance overall, such concerns can be taken to extremes.
In the wake of the Bush Administration’s appalling abuses and their weighty negative consequences, a global mindset has developed in which practically all pronouncements out of Washington are subject not only to great scrutiny, but almost knee-jerk skepticism — even when pitted against assertions on the part of notoriously abusive and deceitful authoritarian governments like Syria’s that face virtually no domestic accountability whatsoever.
Consequently, there have been wide-ranging demands for a UN Security Council (UNSC) mandate despite its futility in the face of a certain Russian veto because Moscow fully supports the Syrian regime in its war of internal repression and is incapable of viewing the facts of this case impartially. Similar Russian tolerance of atrocious war crimes in Bosnia on the part of another of Moscow’s allies in the 1990’s compelled a NATO coalition to act in lieu of the UNSC. But that was prior to the 2002-2003 episode of US (and UK) intelligence deception in support of a vastly more extensive military intervention.
Still, the Obama Administration must deal with the situation as it is. Barreling ahead with a “compressed” timeline for punitive strikes despite extensive pushback resembles in the eyes of many just the sort of brash behavior exhibited by the Bush Administration. And this is precisely what President Obama (and French President Francois Hollande) should avoid under the circumstances.
Personally, I believe some observers are exaggerating the potential fallout from limited military action in this case. In fact, much of the bluster from Damascus and Tehran probably consists mainly of scare tactics meant to play to nervous Western constituencies. However, to head off any regrettable consequences, allied punitive action against Syria must narrowly focus on the issue at hand—and not be expanded to include strikes meant to weaken the regime and play out over two to three days.
Critical to salvaging the situation and calming many of those now hesitant, the White House must patiently await the results of the UN inspection team. UN Secretary General Ban Ki-moon has said the findings should be made available to the UN Security Council on Sunday.
Sunday is only two days away. The Syrian military is tied down holding various vital positions lest the rebels move in and seize them, so it cannot simply go away and hide in preparation for punitive strikes strikes — even if proper consultations require another week. And if the UN inspection results confirm the use of nerve agent against the affected Damascus suburbs, that information could reinvigorate the Western allies to act more as Washington hopes (even if, as expected, the Russians once again block UNSC consensus to serve their own craven interests in Syria).
]]>by Peter Jenkins
Once we came across a man-of-war anchored off the coast.…in the empty immensity of earth, sky and water there she was, incomprehensible, firing into a continent….There was a touch of insanity in the proceedings. – Joseph Conrad
In preparation for debates in the House of Lords and the House of [...]]]>
by Peter Jenkins
Once we came across a man-of-war anchored off the coast.…in the empty immensity of earth, sky and water there she was, incomprehensible, firing into a continent….There was a touch of insanity in the proceedings. – Joseph Conrad
In preparation for debates in the House of Lords and the House of Commons on 29 August (which turned out to be heart-warming advertisements for parliamentary democracy), the British government released the advice it had received from the Attorney General on the legality of military action to deter and disrupt the further use of chemical weapons by the government of Syria.
The essential passage reads as follows:
If action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophes in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available under the doctrine of humanitarian intervention provided three conditions are met [convincing evidence; no alternative; proposed use of force must be necessary and proportionate]
Anticipating this argument on the website of the European Journal of International Law on 28 August, Dapo Akande comes to the conclusion that the doctrine of humanitarian intervention is an inadequate legal basis for the use of force in response to the outrages which took place in the suburbs of Damascus on 21 August.
In describing humanitarian intervention as a doctrine, the British Attorney General is trying to suggest that customary international law provides a legal basis for the use of force for humanitarian purposes. This is, however, far from being the case. The UK is in a small minority in advancing this claim.
Most states consider humanitarian use of force to be contrary to the prohibition on the use of force other than in self-defence that is a feature of customary international law (as well as of the UN Charter, absent specific authorization by the Security Council or in self-defence). For a doctrine to become customary international law, the support of a large majority of states is necessary.Furthermore on 28 April 2006 the Security Council adopted a resolution (1674) of which the ante-penultimate paragraph reads:
Notes that the deliberate targeting of civilians and other protected persons and the commission of…violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security, and reaffirms in this regard its readiness to consider such situations and, where necessary, to adopt appropriate steps.
The meaning could hardly be clearer. In April 2006, the Security Council, of which the UK is a permanent member, took the view that situations akin to that which arose in Syria on 21 August should be referred to the Council, to allow the Council to decide whether the use of force to redress the situation is necessary and would be appropriate.
The outcome of the 29 August debates is seen in Britain as ruling out UK participation in military action against the Syrian government, absent UN authorization or the emergence of a different set of circumstance requiring parliamentary consideration. The shakiness of the government’s legal case played a part in creating parliamentary resistance to UK involvement in current circumstances.
Is there any chance that legal considerations will deter the use of force by the US, given the existence of at least one diplomatic alternative?