What Happened to the Rule of Law?

Since the United Nations was created in 1945, its Charter has been more honored in the breach than the observance. So maybe it should not surprise us that President Obama seems poised to authorize American military action against Syria, in clear violation of international law.

The Charter permits nations to use force against other nations only for self-defense or when the Security Council authorizes such force “to maintain or restore international peace and security,” as it did for Libya in 2011.

Mr. Obama seems to recognize the problem. “If the U.S. goes in and attacks another country without a U.N. mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it,” he told CNN last week.

Since he said these words, his administration has made its case that President Bashar al-Assad’s regime has used chemical weapons against Syrian citizens. But it has failed to secure United Nations support for airstrikes in Syria.

Many bad arguments are being floated in an attempt to get around this. One is that international law contains an exception for interventions designed to alleviate an “overwhelming humanitarian catastrophe,” as the British government maintained on Thursday (before Parliament narrowly rejected military action in Syria). But the British lawyers did not attempt the impossible task of squaring this conclusion with the language of the Charter.

Another bad argument is that intervention is lawful because Syria violated the Geneva Protocol of 1925, which outlawed the use of poisonous gases. But the protocol applied to countries “in war,” not domestic conflict, it did not contemplate enforcement by other nations, and it is subject to the (subsequently created) rules of the United Nations Charter, in any event.

As the expected strikes on Syria show once again, interventions are driven by military, ideological and humanitarian interests with relatively little regard for international law. Because the Charter system has long been so weak, a violation in the name of preventing gross abuses in Syria thus might not have a big impact, one way or the other, on international norms or future intervention behavior.

Of perhaps greater concern to Americans is the fact that an intervention in Syria would extend the president’s war powers under the Constitution beyond where they have gone before. An attack would necessarily be based on the president’s powers as commander in chief. Since the nation’s founding, presidents have possessed the authority to use military force abroad in the absence of Congressional authorization when acting in defense of the nation. Over time this self-defense rationale extended to permit the president to use force abroad to protect American persons and property there.

This was the basis, for example, for President Ronald Reagan’s use of force in Libya in 1986 (in response to the bombing of a Berlin disco) and President Bill Clinton’s use of force against Al Qaeda in Afghanistan and Sudan in 1998 (in response to two embassy bombings in East Africa). But this relatively uncontroversial rationale for presidential war unilateralism is unavailable in Syria, where the contemplated action is not aimed at protecting American persons or property.

Nor is the next-best (but more controversial) rationale — upholding the international rule of law by enforcing a Security Council Resolution — available. President Harry S. Truman invoked something like this rationale as a basis for his unilateral deployment of troops to Korea in 1950. More recently, Mr. Obama’s lawyers relied on the need to support the “credibility and effectiveness” of the Security Council resolution in support of the Libya intervention in 2011.

The problem with these precedents is that the Security Council did not authorize intervention in Syria, and an intervention there will thus harm, not help, the Council’s credibility and effectiveness. The absence of Security Council support thus weakens the president’s already uncertain constitutional power to invade Syria without Congressional approval — even under the executive branch’s expansive conception of its powers.

That leaves a single possible precedent: NATO’s bombing of Kosovo in 1999, without Congressional or Security Council support, to prevent human rights abuses. But the Clinton administration never explained why the original Kosovo invasion was consistent with the Constitution, and many people believed at the time that the president lacked unilateral power to initiate a bombing campaign on purely humanitarian grounds. An attack on Syria would go beyond even Kosovo, which at least implicated an interest in upholding one of our most important security commitments, the North Atlantic Treaty Organization.

That leaves two possible national interests that the president’s lawyers are likely to invoke for the Syria attack, but that have never alone been the basis for unilateral presidential uses of force: the United States’ interest in regional security in the Middle East, and its interest in upholding a norm against the use of chemical weapons.

Many will rightly wonder how this twin rationale can be squared with the text of the Constitution. But its main problem is that it places no limit at all on the president’s ability to use significant military force unilaterally. Future presidents will easily be able to invoke regional stability and the need to protect important international norms whenever they want to intervene abroad with strikes like the one expected against Syria.

Mr. Obama came to office as a “rule of law” president who pledged to respect international and constitutional law much more than his predecessor did. As a candidate he said that the Constitution prevented him from using military force in situations like Syria, and in his Nobel Prize speech in 2009 he insisted that all nations must respect international standards on the use of force. Syria will not be the first time, and probably won’t be the last, that the exigencies and responsibilities of the presidency cause him to eat these words.

Jack L. Goldsmith, a professor of law at Harvard and a member of the Hoover Institution Task Force on National Security and Law, is the author of Power and Constraint: The Accountable Presidency After 9/11. He was a special counsel at the Pentagon, and then an assistant attorney general at the Justice Department, from 2002 to 2004.

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