By Zach Vigilianco
Most of the time I really envy Barack Obama. The man has his own theme music, has a bowling alley in his basement, and thanks to AirForce One, he never has to awkwardly avoid eye contact with the TSA agent conducting his “random” full body frisk in an airport security line.
Despite these perks, I don’t think I would want to trade places with the President right now, because he has some incredibly tough choices to make, for example: which teams deserve an invite to the White House after winning a championship and what sort of action should be taken against Syrian President Bashar al-Assad. (One of those may be just slightly more difficult than the other.)
Bashar al-Assad is, by virtually all accounts, a terrible human being. He took power from his father in 2000 and, despite public promises to the contrary, made sure that the family legacy of extrajudicial killings, torture of dissidents and protestors, and general repression continued in earnest. In 2010, Human Right’s published a “bleak” report describing the myriad abuses of Assad’s first decade in power. in 2011, The International Federation for Human Rights released an 80 page report that called him a “criminal against humanity. ” Both were published before the full escalation of the Syrian Civil War, which the UN estimates has caused over 100,000 deaths. Both reports also came out before Assad started doing his best Sadaam Hussein impression by using chemical weapons against portions of his own populace.
For whatever its worth (read: nothing) Assad denies using chemical weapons against the rebels. To be fair, there remains some confusion about the exact facts and circumstances related to the incident, and to his credit, President Obama (befitting his legal background) seems willing to take the time necessary to build a bona fide case, supported by actual evidence, before taking any concrete action. I won’t pretend to know what action the President should take in the current situation, but operating under the assumption that Assad was in fact responsible for the chemical weapons attacks, lets examine a few of the interesting legal questions that are spawned by this situation.
Constitutional Limits on Action?
As the Syrian situation became more prominent, commentators and observers began wondering if President Obama would seek Congressional authorization or approval before taking military action. An NBC news report originally released on August 31st suggested the President had resolved to move forward with action without seeking such approval, but then changed his mind after a conversation with Chief of Staff Denis McDonough. Over the weekend, the President submitted a proposed resolution to Congress seeking official, though vague, authorization, and is planning a primetime address on Tuesday, to make his case directly to the American people.
But does he actually need their approval to take action?
There isn’t a definitive answer to that question. Presidents often ask for Congressional approval for major military action, but there have been occasions when Presidents acted without any authorizing legislation. President Reagan launched the 1983 invasion of Grenada without congressional action, and President Clinton sent troops to Kosovo in 1999 without any formal Congressional authorization, though Congress did pass some non-binding resolutions. President Obama clearly thinks he has the power, stating in a recent speech that, “I believe I have the authority to carry out this military action without specific congressional authorization.” But there is a legitimate argument that the President does need Congressional permission.
Article II, section 2 of the Constitution enshrines the President as the Commander in Chief of the armed forces, but specifically delegates the power to declare war to Congress in Article I, section 8. Because Syria has not formally declared war against the United States, or caused a state of war to exist by its actions, no state of war exists. While the President may have broad command authority stemming from his power as commander in chief, he cannot exercise such authority when the country is not at war. And because only Congress can declare war (or perhaps more accurately given the current situation, authorize the use of force), the President must seek Congressional authorization before striking Syria.
Then there is the War Powers Resolution, which, depending on who you ask, either bolsters or weakens the constitutionally based argument. The controversial 1973 piece of legislation, passed in the aftermath of the Vietnam War, requires the President to consult with Congress before “introducing the United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances” and in the absence of a formal declaration of war, imposes a 60 day time limit on the use of military force in such situations, with a thirty day grace period for safe withdrawal.
Several Republican lawmakers, wielding a form of the Constitutional argument, have suggested in recent days that the President risks impeachment if he launches strikes at Syria without Congressional approval. While impeachment is theoretically possible given the Republican control of the House, it seems highly unlikely for a number of reasons (Democratic control of the Senate being the most obvious). But what about a lawsuit? Could a member of Congress sue the President to stop an attack? What about a citizen?
Again, there isn’t a fully definitive answer; but precedents suggest a lawsuit is unlikely to be effective. A 2012 report released by the Congressional Research Service documented eight legal actions filed by members of Congress seeking a court order requiring the President to comply with War Powers Resolution—in all eight cases, the courts refused to reach to render a decision on the merits. Modern courts have leaned heavily on the “political question” doctrine— which is basically a tactful way for a court to hold that a particular issue is ill-suited to judicial determination and should be handled in the political arena. President Obama was actually already subjected to such a suit back in 2011 over the US involvement in NATO airstrikes against Libya, but the suit was rejected when the individual members of Congress who brought suit were determined to lack the proper standing. Standing concerns would also likely preclude suits by ordinary citizens; interestingly enough, active duty military personnel directly involved in an operation might conceivably have standing to challenge their orders on constitutional grounds, although such a suit would raise a whole host of other separation of powers concerns.
In all likelihood, barring a major constitutional crisis—something like the President initiating a military operation in direct defiance of Congressional action specifically forbidding such intervention—it is unlikely that the judiciary will have a major role to play on whether or not the President takes action against Syria.
Is intervention in Syria legal under international law?
How about international law? If the President decides that intervention is appropriate and orders airstrikes similar to those ordered by President Clinton in 1999, is he acting within the boundaries of international law?
It depends upon the context and circumstances, but the short answer, if one adheres solely to the letter of the law, is no. Syria is a signatory of the 1925 Geneva Protocol which bans the use of chemical weapons, but the treaty contains no provisions for military action against violators. International norms from a bygone era suggested that force could be used against a treaty violator, but only by a nation that was directly harmed by the violation; because Syria has not used chemical weapons against the United States, the principle isn’t applicable. More importantly, the United Nations Charter, currently the best analog to the US Constitution in an international setting, expressly prohibits military interventions without approval of the UN’s Security Council. Such authorization is highly unlikely because Russia (and possibly China as well) would almost assuredly exercise their veto power; as such the United States is unlikely to seek UN approval.
The President could cite to the intervention in Kosovo as a form of legal precedent, but such reliance would be like relying on an overruled case: the intervention in Kosovo also lacked UN approval, and despite its practical success was widely hailed in academic circles as illegal. In recent days, both the President and Secretary of State John Kerry have alluded to a “responsibility to protect” doctrine. While the notion certainly has moral appeal, it has never been ratified in an international treaty and therefore doesn’t have the force of law.
Of course, international law is a funny creature; in the absence of an entity that can compel compliance, some people might say that the UN Charter and most international treaties are no more than words on paper. “Might makes right” is not a principle given much credence in today’s world, but one cannot ignore practical reality: if President Obama decides to launch airstrikes on Syria, who exactly from the UN is going to try and stop him? That of course exposes the delicious irony of the situation—the United States may justify military intervention against Syrian as punishment for violating international law, but must violate international law itself to mete out punishment.
That doesn’t mean that such intervention is morally wrong or an incorrect decision. But after spending two years in law school, where legal opinions have an almost God-like authority (nothing is more authoritative to a law student than “because the Supreme Court said so”) it is interesting to examine a situation where the legal framework begins to break down. Also, because my two years in law school have taught me to pepper my writing with random latin phrases, regardless of whether or not the phrase is relevant, here’s a Roman maxim that seems rather appropriate: inter arma enim silent leges. “In times of war, the law falls silent.”
