People use the sentence “I am not a lawyer” so often that it has its own acronym, IANAL, for people who spend way too much time online. I myself am not a lawyer, which is not to say I don’t realize that the law is important or that I don’t understand legal issues (well, at least sometimes) so much as it is to say that I don’t automatically think of things from the legal perspective. So when 50 or so hard-core State Department diplomats get a real hankering for some good old fashioned American airstrikes on Syria, my head goes to “these maniacs want to start a war with Russia” rather than “I wonder how much this would violate domestic and/or international law?” At Lawfare, Ashley Deeks and Marty Lederman fortunately consider the latter question–and, as it turns out, the answer is “quite a bit.” Without Congressional authorization, which is no sure thing, it’s likely that unilateral presidential action would violate domestic law, but the real problem comes when you start talking about international law (AKA that thing that American diplomats care about when it applies to countries we don’t like, but apparently feel free to ignore when it comes to America’s own actions):
Even if Congress did provide such authorization, however, that would only tee up the question of whether a unilateral use of force by the United States against Syria, without Security Council approval or even the assent of most other nations, would violate international law–in particular, whether it would breach the U.S.’s obligations under Article 2(4) of the U.N. Charter, which provides that states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” (This situation is not analogous to Libya 2011, where the U.N. Security Council had authorized the use of force.)
We anticipate that at least some of the signatories to the dissent channel cable would argue that “humanitarian” intervention does not violate the Charter. Whatever the merits of the case for an amendment of the Charter to permit unilateral humanitarian intervention in specified circumstances, however, the Charter as presently written does not recognize such an exception, and the United States has not accepted it as a valid legal doctrine, either, even in a case—unlike the present situation in Syria—in which the use of force would be supported or approved by virtually all our NATO allies. (See also pages 1057-60 of Ashley’s article here; and Jack Goldsmith’s 2013 post.) In the one recent case in which the United States did use force without Security Council authorization for humanitarian purposes–Kosovo in 1999–the State Department notably declined to assert that the intervention was lawful. Instead, it merely offered a “pragmatic justification” for the intervention, and in so doing placed significant emphasis on the fact that virtually all NATO states supported or approved that multilateral use of force, which presumably would not be the case here.
Of course, the fact that the proposed use of force would breach the Charter does not mean that political branches could not jointly authorize it: The modern understanding is that Congress may, as a matter of domestic law, authorize action that violates U.S. treaty obligations. But Congress rarely does so, and for good reason: It would establish a very dangerous precedent–one that we’d presumably not want other nations to emulate–and would undermine the authority of the United States in its own efforts to ensure respect for, and compliance with, the Charter, and international law more broadly. Did the 51 diplomats take into account these substantial costs of their proposed course of action–in addition to those that they specifically identify, which are themselves fairly serious (e.g., “further deterioration in U.S.-Russian relations” and perhaps even “a military confrontation with Russia”)? Their cable suggests that they did not.
Deeks and Lederman also take the cable’s signers to task, as I did, for their failure to even attempt to show that their proposed strikes would a) actually accomplish anything, let alone that they would accomplish it without b) potentially drawing Russia into a war over Syria, which even the Bomb Bomb Assad chorus insists it doesn’t want.
Over at Foreign Policy, former State Department official Joseph Cassidy argues that anybody criticizing these diplomats for disloyalty isn’t getting the point of the department’s “Dissent Channel,” which is set up to provide an outlet for mid-level personnel to criticize decision-making and to spur debate. I haven’t seen anybody make that particular criticism of the cable, but I can imagine some of that is out there. And I agree with Cassidy; every government department ought to have some formal way for subordinate civil servants to argue (without repercussion) against what they see as bad policy, and certainly this should be true in critical departments like State. My criticism of this cable isn’t that it was written, it’s that it advocates potentially catastrophic policy with apparently little regard for the potential consequences. Which, again, is typical of the DC foreign policy establishment, which too often assumes that America should be allowed to do as it pleases in world affairs without expecting any blowback from other nations.
Though as long as we’re here, I could also criticize these folks for leaking their dissent, which could frankly be seen as disloyal and, at any rate, was self-defeating in that it forced President Obama to publicly take military action off the table. It’s been suggested that the cable was leaked to tee up Syria as a campaign issue for Hillary Clinton, who seems more likely to authorize the use of force against Assad than Obama, but even that seems ill-conceived–Syria, and specifically the potential for America to get involved in Syrian regime change, is likely not an issue that’s going to play well for Clinton in this election (some polls find majority support for increasing military action to counter ISIS, but none that I can see going back to 2013 shows any stomach for getting into the war between the Syrian rebels and Assad), and I would imagine she’d prefer to leave it alone until after she’s elected.