U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)

by Julian Ku

Yesterday, the Wall Street Journal reported that President Obama has authorized U.S. military forces to use air power to defend  U.S.-trained Syrian rebels if those rebels are attacked by the Syrian government forces.

President Barack Obama has authorized using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups, raising the risk of the American military coming into direct conflict with the regime of President Bashar al-Assad.

“For offensive operations, it’s ISIS only. But if attacked, we’ll defend them against anyone who’s attacking them,” said a senior military official. “We’re not looking to engage the regime, but we’ve made a commitment to help defend these people.”

I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks.  But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against.  And its legality under international law is pretty tenuous as well.

Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war.  So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization.  That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007.  Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack?  It seems so long ago.

Under international law, the Russians are already pointing out that using military force in a foreign country against that country’s recognized government is a violation of the U.N. Charter since there is no Security Council authorization here.  There isn’t even a clear “humanitarian intervention” theory here, at least not if the air strikes are only defensive.

And yet, I have little doubt that the U.S. will carry out the strikes if needed and that there will be almost no fuss in the U.S. about its constitutionality.  Article II is alive and well in the Obama era.  There may be little bit more fuss overseas about its legality under international law, since that seems a tough case to make. But it is hard to imagine that international law will act as much of constraint here either.

http://opiniojuris.org/2015/08/03/u-s-prepared-to-launch-possibly-illegal-airstrikes-against-assad-but-thats-ok/

4 Responses

  1. Thanks for the post . I was wondering , why the respectable author of that post , didn’t bother even, to presume , what is the nature of the threat to the US , causing , subjectively , the US , to declare that : they shall protect any IS attacks on the Syrian rebels .

    For such factual and conceptual configuration , is no less than legal issues , in fact they are both one !! One should remember , the notion of : imminent attack /threat , and self defense , is a very broad and subjective perception , I shall give hereby , a methodological example :

    You may shoot and take out , a suicide bomber terrorist , it is by all means legal !! on spot , just before blowing himself , surly so !! but :

    What if you know for certain , about his action and destination , five minutes before reaching it , can you take him out ? yes , five minutes , for sure , absolutely so !! And what if he is about : 10 minutes , half day , one day interval , and what if :

    One week before , you take him out , knowing for sure his intention , and while preparing the explosives , you do eliminate him ( like the Israelis does with drones , or the US , or compare the elimination of Imad Mornia , responsible according to the US , to endless loss of life , in terrorist attacks in Iraq ) .

    So , First of all , and before all , dealing with the : nature , and interval and scale of the threat , is vital , for the legal issues . let alone when , article 2 (4) to the UN charter , states clearly :

    ” 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. ”

    Surely one would claim, we lack in the case of Syria, that ” territorial integrity ” and sovereignty, or effective control , allowing it, prima facie, to act as ” US agent ” for eliminating potential threats to the US. . Well one may argue , how to attack the ” agent ” and at the same time to expect him to be an ” agent ” . Well that is the point , he is no longer capable , and the Syrian rebels are the ” replacement ” one may argue .

    The US may argue for example , that: chemical weapon facilities not totally yet dismantled , could fall to IS troops, and constitute grave threats to the US or its allies. Well , it is first a subjective perception , yet , vital to deal with , and present it clearly .

    Thanks

  2. there is nothing to understand about this policy. As soon as Assad (a villain, obviously) is gone, Syria either becomes an anarchy marked by Sectarian violence or the Islamic State takes full control of it.

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