Law matters. But the law is the not sum total of what matters when it comes to asking the question “What is the right thing to do?,” be that in our personal or professional lives. Often obedience to the law–asking if doing something is legal–is the starting point for evaluating conduct. But there is a long lineage of people from St. Augustine, Henry David Thoreau, to Martin Luther King, Jr. Who would point out that unjust laws are not morally binding and that in some cases disobeying them is the right thing to do. Conversely, mere conformity to the letter of the law also does not necessarily mean one is acting ethically or that following the rule is the right thing to do. More is required. This is also true when it come to the decision by President Obama to take military action against Syria.
Syria’s use of chemical weapons raises problems for the United States. Specifically, any use of force raises three questions: 1) presidential authority to act; 2) what is distinct about Syria; and 3) what is the end game for the US? All three of the questions have to be answered satisfactorily before the United States takes any action.
Presidential Authority to Act
Obama wants congressional approval to use force, but he still had not ruled out doing something absent their acquiescence. What constitutional authority does President Obama have to justify military action in Syria? This is not clear. Domestically, the two sources of legal authority he can reference would be either the Commander-in-Chief clause of Article II of the Constitution, or the 1973 War Powers Act.
It is not clear how the Commander-in-Chief clause supports this action. The constitutional framers intended for Congress to be the dominant branch when it came to military and perhaps foreign affairs. Article I textually commits to Congress the power to declare war along with a host of other powers related to the military. Here Congress has not declared war and it is unlike after 9-11 when Congress did enact the Authorization to Use Military Force that gave Bush the authority (arguably) to deploy troops in Afghanistan. At least Bush had some legal authority to wage a war on terrorism, no matter how tenuous.
If Obama is relying on his Commander-in-Chief powers, it is hard to see how they come in. Syria has not attacked the US, it is not threatening vital interests, and it is not otherwise doing something that directly conflicts with American national security. Instead, to contend that the Commander-in-Chief clause gives Obama unilateral authority to deploy these troops is no different or better than Bush era assertions by advisors such as John Yoo and others that the president had inherent constitutional authority to act. He does not.
There is no extra-constitutional authority for presidents to act. This was supposedly another issue or lesson learned from Vietnam; presidents should not unilaterally drag the country into war. LBJ and then Nixon abused their presidential powers when it came to Vietnam. Disputes over presidential power to deploy troops were supposedly addressed by the War Powers Act in 1973. It placed limits on presidential power to deploy troops for limited purposes, subject to consultation with and notification to Congress that the Act was being invoked. Here again Obama is not invoking the Act in asking Congress to approve. However, overall, there seems little authority for the president to act here absent congressional approval.
What is distinct about Syria?
But even if Congress does approve, the second problem is what is distinct about Syria? Assume for now that Obama has the constitutional authority to act. Why Syria and why not Kim Jong-Il in North Korea, Iran, Sudan, or Zimbabwe? In all of these countries we have repressive dictators or regimes abusing the rights of their people. Should the US use force in all of these countries to oust dictators? If mere oppression were the justification for action the US would be busy around the world acting. Moreover, if mere oppression were enough justification, the US should have ousted Assad years ago. Something more is required.
First at the international level is the authority to act. Article II, section 7 of the United Nations Charter declares: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction.” Is not what is happening in Syria a domestic matter and none of our business? Maybe, but the legal case for it has to be made. The UN allows for this under international law through resolutions and Security Council action. With a Russian veto, chances for this type of authorization are nil. Obama appears to want to justify intervention under international law that bans the use of chemical weapons or by invoking some other principles of humanitarianism, but again the justification is not obvious.
But even if the United States can find justification under international law to act, there is still another question: Why should the US act, potentially alone? Again, Syria is less of a threat to the US than Iran and Korea. From a strategic point of view it is hard to justify intervention. Korea and Zimbabwe are equally as brutal regimes. Why not them? Perhaps the difference here is that there is a popular movement to oust him and that is the reason why we are acting? Maybe the issue is about prospects of success in ousting him? All of these are possible answers yet it is difficult to see a reason or argument that principally distinguishes Syria from acting in the other countries, unless of course it is the use of chemical weapons. Similar reasons about weapons of mass destruction led Bush into Iraq and why the US is viewed as a hypocrite when it comes to the country supporting or placating some repressive regimes.
What is the End game?
The final troubling issue is the end game for Obama. What are our goals and what are we really trying to accomplish? Is it simply to punish Assad for using chemical weapons? Is it because he has killed 50,000 of his people? Do we hope that military action will oust him and if so, what are we prepared to do next? What is the definition of success and what plans does the country have to exit from intervention? These are all important questions that need to be asked. Even if the US merely does drone strikes or other limited action, the US needs to be clear regarding what it hopes to accomplish and prepared for what might be the result?
During the first Gulf War General Powell espoused a doctrine that has been named after him. The Powell doctrine, supposedly based on what we learned from Vietnam, said that US military action needed to be evaluated by asking questions regarding clearly defining what national interests are at stake, whether the goals of intervention are clear, is there international support for action, what are the alternatives and risks to military action, and then determining what the end game and exit strategies are. Using the Powell Doctrine to evaluate the comments by Secretary of State Kerry and Obama recently, it is not clear that they have adequately answered this question.
What to do with Syria is a difficult question. But it is a terrific case study in decision making and in demonstrating how questions about legality are only the starting point in determining what is the right thing to do.