Attacking Syria: Moral, Maybe. But Not All That Legal

I want to start off making one thing clear: there are excellent moral reasons for attacking the Bashar al-Assad regime in Syria. Assad, like his father before him, is a brutal dictator. He tortures. He viciously represses dissent. And now, it appears, he has crossed the line and used chemical weapons against his own people—against civilians, which is a savage and barbaric act. Assad could drop dead today, and I would not shed a single tear.

So President Obama has compelling moral reasons for a strike on Syria to stop the killing and even to knock out the Assad regime. What he does not have is any legal justification for doing so.

Now, I know it’s fashionable among the ignoramii to mock the idea of a lawyer like me demanding that things be done according to “technicalities”—unless, of course, those “technicalities” can be used against someone they don’t like. Then, it’s all about “the Rule of Law.” But when you’re talking committing American sons and daughters to a conflict, the law’s kind of important.

First off, attacking Syria would be, by definition, an act of war. Now, it’s true that over the years, Presidents both Republican and Democrat, have taken more and more of the war-making power to themselves, and Congresses, both Republican and Democratic controlled, have ceded it to them. (This, by the way, is the subject of Rachel Maddow’s well-researched and thoughtful book Drift: The Unmooring of American Military Power,  which I recommend wholeheartedly).

But even given that fact,  the War Powers Resolution only allows the President to commit American forces in the event of “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” None of that has happened here. It’s true that multiple Presidents have violated the Resolution and that the Congress has fussed, fumed, and deplored, while failing  to take any legal steps to stop those actions, calculating no doubt that the political costs would be too great. That doesn’t make it any less the law. President Obama himself acknowledged this in his 2007 candidate Q & A to the Boston Globe: “The President,” he wrote, “does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation…. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent.” Self-defense does not in any way include “preserving the credibility” of the United States or of the Obama Administration’s “red line” statement of a few weeks ago.

 But hasn’t Assad violated international law by using chemical weapons? You betcha. But Article One, Section 8 of the U.S. Constitution states that “The Congress shall have Power to ...define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Now, you and I know this Congress is about as useful as teats on a bull, but it is what it is. The President can do a lot of things by executive Order, but “punishing offences against the Law of Nations” is, by black-letter law, given to the Congress.

Then there’s the problem that the United Nations has also failed to provide us even the flimsy cover a resolution authorizing an attack would provide. Given the support that Russia and China have provided Syria (one of their biggest arms customers), they’re unlikely to do so. See “teats on a bull,” above.

So why be picky about the law when there’s evil like Assad’s to be addressed? Because when the President, any President, takes military action with no legal justification because “this dictator is bad and it’s the right thing to do,” then he has untethered his power from the law. It makes the use of power an extension of what the President feels in his “gut,” to use the phrase applied to George W. Bush’s criteria for action. And power untethered by anything but one man’s “gut” is despotism. It may be benevolent, well-meaning despotism from one who, for the moment, is a Good King, trying to Do Good. But if there’s one thing that history teaches us, it’s that Good Kings are often followed by Bad Ones, and once power is untethered, it’s hard to get it back on the leash.  

Having drawn the "red line" at the use of chemical weapons (which I said at the time was a bad idea), President Obama may very well feel that he has to follow through with a military strike or else be thought weak. But the credibility of neither the President nor the United States is enhanced by unilateral action that flies in the face of not only the law, but the President’s own statements on the law.