Once again, the United States is on the verge of raining down missiles onto the sovereign territory of yet another Middle Eastern country. While Americans have spent most of the week discussing the broader implications of Miley Cyrus twerking up against Robin Thicke, President Obama was busy ratcheting up pressure on the regime of Bashar al-Assad in Syria. According to the White House, the Syrian government was behind last week’s deadly gas attack near Damascus – an attack that could very well constitute a crossing of that vague “red line” Obama mentioned last year. That could very well mean that the president will decide to take military action against Syria. Here's why that's a terrible idea.
But with apologies to Richard Nixon, just because the president does something, that something is not, ipso facto, legal; or even practical for that matter. The fact is, U.S. military action in Syria would be a terrible idea for three reasons.
The U.S. Constitution could really not be any clearer when it comes to the vestment of war-making powers. While there are certainly debates to be had on what exactly constitutes interstate commerce or how elastic the Necessary and Proper Clause really is, the Framers left no such ambiguity when it comes to declarations of war. It does not take a constitutional scholar to understand the part of Article I, Section 8 which states,
“The Congress shall have Power … To declare War, grant letters of Marque and Reprisal, and Make Rules concerning Captures on Land and Water…”
In Article II, Section 2, the president’s powers vis-à-vis war are explained just as clearly:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
In Federalist No. 69, Alexander Hamilton addressed the extent of the president’s war powers, which in his mind, were not extensive at all:
“The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.”
In other words, the Congress – consisting of the duly elected representatives of the people – decides when to call up the armed forces, at which point the president may take command in his capacity as commander-in-chief. Beyond this, Hamilton notes, constitutionally the president has less authority over the national army than the governor of New York has over what today we’d call the state’s National Guard. And he certainly does not have the authority of a king when it comes to war-making powers.
As then-candidate Barack Obama correctly noted in 2007, “The President 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.”
But just as with his bombing of Libya, Obama may again violate his previous – and correct – interpretation of the Constitution.
At the end of World War II, the world’s major powers decided to bolster the international legal system by creating the United Nations after enduring two catastrophic world wars in a quarter century. Though the UN has a myriad of flaws owing to the diverse political interests of its members, its charter is nonetheless a legally-binding document which the U.S. and 192 other nation-states have signed.
Chapter VII, Article 39 of the charter states,
“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”
Of course, that does not mean that a state’s right to defend itself emanates from the Security Council. As Article 50 subsequently makes clear,
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
Given the presence of Russia and China on the UNSC, a resolution authorizing force in Syria is not forthcoming. And given that a strike against Syria by the U.S. could in no way be justified on self-defense grounds, U.S. military action against Syria at this point would be nothing short of an act of aggression, and hence unlawful.
Whether justified or not, U.S. meddling in the region has fomented an incredible amount of resentment among the millions of people who call the Middle East home.
Furthermore, its alliances with despotic but oil-rich countries such as Saudi Arabia, Qatar, and Bahrain have surely contributed to a general complacency in the realm of U.S. energy policy. Rather than forge ties with countries whose governments are hostile to democracy in an attempt to reach favorable outcomes in the nasty game of petro-politics, the U.S. should be leading global initiatives to shift the world away from fossil fuels. For example, the fact that the tin-pot Wahhabist dictators from the House of Saud have gained such great American favor is both a testament to the power of petro-politics, and also a scandal of the first order.
Given that continued involvement in the Middle East will only yield additional headaches for U.S. policymakers, American aid and military resources are best used elsewhere.
Sadly, an attack by the U.S. on Syria without congressional authorization, without UN approval, and without an eye toward practical considerations will not constitute a radical departure from the recent past, but rather a mere continuation of what has become the horrifying new normal.