There’s an interesting, if I suspect academic, discussion over at Just Security at the moment about whether the recent proposal by 51 State Department diplomats to use military force against the Assad regime directly would be lawful under domestic and/or international law. My suspicion that the discussion is at least at present academic is based on the unlikelihood that any such policy change is in the offing – particularly in this election year and, more important, in the context of the current President’s longstanding position that greater U.S. military force of this nature in Syria would be counterproductive. But academic at the moment or no, the questions are important and will certainly be faced early in the term of the administration that takes office in January 2017. And particularly on the international law side, the questions go to the heart of the larger issue of how much formal analysis one thinks international law in this area can bear. Marty Lederman and Ashely Deeks started the discussion here, Harold Koh responded here, and Charlie Savage has a good review of the way these debates unfolded in the administration considering the legality of the use of force in Libya and Syria here. So
Let’s start with the domestic law question, whether the President has the power under Article II to use military force against the Assad regime without congressional authorization. Marty and Ashley argue that it is far from clear the President has such power. Indeed, I would argue that it is clear in present circumstances that the President does not. While there is little constitutional doubt that the President has the power to use force without congressional authorization to defend the nation from foreign attack, there is no suggestion that Assad has attacked the United States or indeed poses any meaningful threat to us. Rather, the constitutional case for the use of force here would undoubtedly be based on the remarkably broad view of presidential power the Obama Administration the Administration set forth in an Office of Legal Counsel memorandum in 2011 (which Charlie notes) justifying the use of force in Libya without congressional authorization. Under the Obama OLC view, the President’s constitutional power permits him to use force without congressional authorization (1) if its use serves “important national interests,” AND (2) if the use of force doesn’t rise to the level of a “war” (based on the anticipated nature, scope, and duration of the planned operations), such that the power to launch it falls within Congress’ express constitutional power to “declare war.” Even setting aside the very serious arguments about the accuracy of this view of constitutional law in the first place, the kind of intervention the diplomats’ seem to contemplate seem inescapably likely to rise to the level of “war” requiring congressional engagement. Among other things, the diplomats argue that the United States should embrace a more assertive “role to protect and preserve opposition held communities, by defending them from Assad’s air force and artillery…” Whether accomplished by air power alone or no (and it is deeply questionable that it could be), the project of taking and holding communities, and destroying another nation’s air capability, are hardly limited uses of force. Particularly given Assad’s demonstrated commitment to defending his regime at all costs, it is inconceivable that any such mission could be accomplished without a sustained commitment of U.S. force. In other words, it would be war.
Harold Koh objects to much in Marty and Ashley’s post, but I do not take him to challenge the view that a sustained military campaign of the kind the diplomats seemingly contemplate would raise important questions about the President’s constitutional power absent congressional authorization in a way that a single-strike or far more limited initiative might not.
Where Harold on the one hand, and Marty and Ashley on the other, really part ways is over the question of legality under international law. Marty and Ashley embrace the standard reading of the UN Charter: in the absence of a UN Security Council resolution or plausible claim of national or collective self-defense (recall it is not Assad attacking Iraq, much less the United States), U.S. use of force against the sovereign state of Syria is unlawful. Harold puts forward in essence a case for the justifiable use in this instance of force for the purpose of humanitarian protection. Harold’s case does not much traffic in the usual details that typically attend such an argument. It does not consider the extent to which such intervention in Syria parallels, or not, the same kind of intervention NATO pursued in Kosovo in the late 1990s. And there are of course a variety of reasons to doubt the ready applicability of the Kosovo principle here – the absence of allied or regional support, most notable among them as Marty, Ashley and Charlie all note.
But perhaps more striking in in this discussion has been the reluctance to invoke the emerging international law principle of humanitarian intervention in the terms in which it emerged and is still commonly described: “illegal but legitimate.” Why avoid this simple, formal legal term? One suggestion that has emerged in the discussion is that it is because the law in these areas – the humanitarian use of force, as well as, for that matter, the President’s power under domestic U.S. law – is not nearly clear enough to support such black and white assessments. There is no doubt plenty of ambiguity in law, in these areas like all others. On the international law side, it is also true that the UN Charter’s exclusion of humanitarian protection as among the recognized bases for the use of force against another state runs contrary to other overarching principles the Charter recognizes – the protection of human rights among others. And it is true there have been some examples of state practice in which states have used force for humanitarian purposes contrary to Charter rules. But to agree that the current law should be changed, or to agree – as I surely would – that there is an emerging principle of a customary sort to support the use of humanitarian force in certain circumstances, is different from saying that this practice is, as it stands, legal. The situation in Kosovo, arguably the situation in Syria (arguably not because of the scope of the humanitarian disaster there but because of the prospects that more force would actually help in this respect) – these and other circumstances may well present overwhelming moral and political justification to support the use of state force. That is, they may present the extraordinary case – that arises in any number of domestic law areas as well – where breaking the law is the better course. But it is I think necessary to be clear that such a course of action would be violating the formal law that exists. We invoke international law as crystal clear (state practice notwithstanding) on questions like torture. The Charter law itself is capable of bearing the same clarity of analysis here. And I tend to think we do international law writ large no favors to shy away from this conclusion.