aNewDomain.net — So U.S. President Barack Obama wants to fire cruise missiles at Syria.
As President of the United States, a nation holding the most-lethal firepower of any society in history, Obama for sure has the ability to start the war. It would be his sixth major front — after Iraq, Afghanistan, Yemen, Libya and Pakistan.
He could do it and might do it with or without a vote — if he wants to. But does he have the legal right to do it? Does congressional consent even matter? The short answer is no.
As long as basic architecture of the Constitution with its separation of powers remains in force, the answer is no. The answer is still no if you consider the Founding Fathers’ original intent — and their fluency in English as they created and commented upon the 18th century-era U.S. Constitution.
And if you bring in America’s treaty obligations, which after ratification carry the full force of U.S. law, the answer is still a definite no. Provided they are more than slips of paper, that is.
Yes, we’ve all heard that might makes right. The victor writes history. And undoubtedly, in the maybe not-so-distant future, when the United States declares itself an empire and Syria as a vassal outlying state, no one will care what went down in 2013 or 2014.
But until then, it matters. It matters a lot.
An attack on Syria without legal grounding carries broad implications — and not just for the Syrians who will lose their lives, limbs and sanity in the process. Back here — in what neofascist politicians and media mouthpieces speciously call The Homeland — we Americans are watching as top officials and bold-faced notables brush off the basic legal underpinnings of U.S. political culture.
And they’re doing it with impunity.
Obama and crew’s disdain for the law probably won’t spark significant street protest. And forget an uprising. These days, you have to be a White Republican to provoke a demonstration against your wars. Yet official lawlessness is corroding the system. That will hasten a coming rebellion just as surely as rust will collapse a bridge in its own time. When top officials don’t even follow the rules they wrote and the rules from which they benefit most, why should anyone else?
‘They say I got to respect the system,’ the Australian punk band The Saints sang, ‘but there ain’t no respect in that system for me.’ “
Obama and warmongers are counting on ignorance and confusion to make the case. But the rules of war are clear. Attacking Syria would be out and out illegal. Obama and his surrogates keep saying that Obama has what they call the “inherent power” to attack Syria — or any other country — per Obama’s role as U.S. Commander in Chief.
Obama has said he’s only asking Congress for approval because he’s a nice guy. That political cover won’t hurt if and when the war turns sour, as wars are wont to do.
In The Federalist Papers, though, Founding Father Alexander Hamilton couldn’t have been clearer. Hamilton never considered the president’s role as “commander in chief” to be anything close to the lofty Caesar-like rights Obama claims.
In fact, the commander-in-chief gig is so ceremonial that it is virtually insignificant. In the Federalist Papers, it barely rates a mention.
Wrote Hamilton:
While [the powers] of the British kings extends to the declaring of war and to the raising and regulating of fleets and armies … all which, by the Constitution under consideration, would appertain to the Legislature [Congress].”
In his book, War Powers: How The Imperial Presidency Hijacked the Constitution, Peter Irons reminds us that, under the U.S. Constitution, the U.S. president’s sole military role is to repel an invasion — and that’s only after it has occurred — and pending action by Congress. Wrote Irons:
The Framers … agreed that the president could act without a congressional declaration of war to repel an invasion but that only Congress could authorize the deployment of forces outside the nation’s territory in combat against foreign troops.”
Look, The Founders were split on a lot of issues. Slavery was a big one. But on the Constitutional separation of powers and how that related to making war, the framers were nearly unanimous. Fact is, just one delegate voted to vest the president with the right to wage war.
No matter what backers say, Obama has zero inherent right to attack Syria or any other country.
It’s true that, under the U.S. Constitution, the U.S. Congress could do it.
But the U.S. is nevertheless subject to treaty obligations that clearly block it from attacking Syria under circumstances as they are now.
First, consider the Kellogg-Briand Pact of 1928, which the U.S. Senate ratified by an 85-1 vote. It bans all acts of such military aggression. Many of the Nazi leaders executed and imprisoned at Nuremberg were convicted for violating this pact. Kellogg-Briand remains in force as international law.
The United Nations Charter mandates that all U.N. member countries “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” The U.N. Charter makes no exception for the three principal arguments Obama and supporters make in favor of attacking Syria. Those three are punishment for using chemical weapons, preemption to send a message to other possible future chemical weapons users like Iran and North Korea, and deterrence to keep Assad from attacking such neighbors as Jordan and Israel.
To the contrary, the Fourth Geneva Convention outlaws “collective punishment” altogether. Collective punishment is the term describing a war that harms and causes civilians to suffer as a result of their government’s offenses.
Now, during George W. Bush’s propaganda offensive leading to the 2003 invasion of Iraq, Bush and his allies (including many of the same names you hear pushing to attack Syria now) did manage to con the public into signing off on that so-called preemptive war.
But neither Iraq then, nor Syria now, comes close to fitting the bill legally. “There’s a well-accepted definition for preemptive war in international law,” Joseph Cirincione, the Carnegie Endowment’s director of the Non-Proliferation Project, said in late 2002. He continued:
Preemptive war is justified by an imminent threat of attack, a clear and present danger that the country in question is about to attack you. In such a case a preemptive attack is recognized as justifiable.”
That’s a high bar. Even having troops lined up along your border doesn’t automatically qualify as an imminent threat under international law. You either have to let the enemy hit you first or you need to have a strong reason to believe they’re about to.
Now Obama and others will likely argue that all of that — Geneva, Kellogg-Briand, the U.N. Charter and even the U.S. Constitution — amount to little more than quaint, outdated relics. All of it from naïve oldsters whose twentieth-century attempts to outlaw war make no sense in today’s world.
If that is truly what they think, they need to convince us to amend or annul them. But as long as these laws remain in force — and as long as Obama and other members of America’s ruling class continue to ignore them — one ugly day of reckoning draws closer. In the meantime, it’s Obama’s own version of Breaking Bad.
For aNewDomain.net, I’m Ted Rall.
Based in Boston, Ted Rall is a nationally-syndicated columnist, editorial cartoonist and war correspondent who specializes in Afghanistan and Central Asia. The author of 17 books, most-recently published The Book of Obama: How We Went From Hope and Change to the Age of Revolt, Rall is twice the winner of the Robert F. Kennedy Journalism Award and is a Pulitzer Prize finalist. Follow him @TedRall, check out his Facebook fan page and definitely follow his Google+ stream here. Ted’s upcoming book After We Kill You, We Will Welcome You As Honored Guests: Unembedded in Afghanistan is due out in 2014.
