The U.S. Government rains drone missiles on civilian human targets anywhere in the world, continues to operate Guantanamo in the face of universal condemnation, whitewashed Abu Ghraib, Bagram, and the torture memos, committed aggression against Iraq and Afghanistan, and invests billions to sustain its unlawful global surveillance capabilities.
Still, it has the audacity to lecture the world about ‘norm enforcement’ in the wake of the chemical weapons attack in the Ghouta suburb of Damascus. Someone should remind President Barack Obama and Secretary of State John Kerry that credibility with respect to international law begins at home and ends at the United Nations. Sadly, the American government loses out at both ends of this normative spectrum, and the days of Washington being able to deliver pious messages on the importance of international law are over. No one is listening, and that’s a relief, although it does provide material for those teams of writers working up material for the likes of Jon Stewart, Stephen Colbert, and the many standups at Comedy Central. Yet, of course, this geopolitical TV series is no laughing matter for the long ordeal of the Syrian people.
There is yet another disturbing dimension of this pre-war pseudo debate about recourse to force in retaliation for an alleged use of chemical weapons by Assad against his own people: should a democracy empower its elected leaders to commit the country to war without at least securing specific legislative authorization? The contrast between the approach of the British and American approach to this issue is illuminating. David Cameron, as Prime Minister, along with his Foreign Secretary, strongly favored joining with the United States in launching a punitive attack against Syria, but arranged a prior Parliamentary debate and vote, and clearly indicated his immediate acceptance of the surprising refusal to win backing for such a policy, a show of Parliamentary independence that had not occurred in the country since the late 18th century. Of course, given polls showing only 11% of British citizens supporting an attack on Syria, Cameron may be privately breathing a deep sigh of relief that the vote came out as it did! Obama should be so lucky! If only his powers as Commander-in-Chief included a tool with which to erase imprudent ‘red lines’!
Compare now the Obama approach: speeches informing the country about why it is important to punish the Assad regime so as to uphold American national security interests and to engender respect for international law and several consultations with Congressional leaders. What is absent from the Obama discourse is the word ‘authorization’ or ‘a decent respect for the opinions’ of humanity, as expressed at home and in the world. In my view, this continuing claim of presidential authority to wage war unilaterally, and absent a UN mandate, is creating a deep crisis of legitimacy not only for the U.S., but for all governments that purport to be democracies but commit to war on the decision of the chief executive, as France and Turkey appear to be doing. It is time to face up to this crisis.
Above all, the foundational idea of American republicanism was to demonstrate that the power to declare and wage war was subject to ‘checks and balances’ and ‘separation of powers,’ and in this crucial respect, was unlike the monarchical powers of English kings in war/peace contexts. This makes the Parliamentary rebuff to Cameron not only a revitalizing move for British democracy, but an ironic commentary on the degree to which American ‘democracy’ has perversely moved in an absolutist direction.
It is true that government lawyers as hired hands can always find legal justifications for desired lines of policy. We can count on White House lawyers do just this at the present time: working into the night at Office of the Legal Counsel to prepare breifing material on the broad scope of the powers of the president as Commander-in-Chief, reinforced by patterns of practice over the course of the last several decades, and rounded out with an interpretation of the War Powers Act that supposedly gives the president 60 days of discretionary war making before any obligation exists to seek approval from Congress. Lawyers might quibble, but democracy will be the loser if procedures for accountability and authorization are not restored with full solemnity. In this respect the law should follow, not lead, and what is at stake is whether the republican ideals of limited government would be better served by the original ideas of making it unconstitutional for a president to commit the country to war without a formal and transparent process of public deliberation in the Congress, which is that part of government charged with reflecting the interests and values of the citizenry. Let the lawyers be damned if they side with the warrior politicians, however ‘war weary’ they claim to be.
It is worth also noticing that the common arguments for presidential authority do not pertain. The United States is not responding to an attack or acting in the face of an imminent threat. There is no time urgency. Beyond this the American public, as is the case with the publics of all other Western democracies, oppose by large majorities acts of war against Syria. What makes this situation worse, still, is the refusal to test diplomacy. By international law norms, reinforced by the UN Charter, a use of force to resolve an international conflict is legally a matter of ‘last resort’ after diplomatic remedies have been exhausted. But here they are not even being tried in good faith, which would involve bringing Iran into the process as a major engaged player, and enlisting Russia's support rather than exhibiting post-Snowden pique. Obama claims that no one is more war weary than he is, but his behavior toward Syria, Iran, Egypt, and Russia convey the opposite message.
And finally, some urge what be called ‘a humanitarian right of exception,’ namely, that this crime against humanity committed against the Syrian people requires a proportionate response from the perspective of international morality, regardless of the constraints associated with international law. Disregarding ‘the slippery slope’ of moral assessments, this particular response is being presented as directed against the Assad regime, but not motivated by any commitment to end the civil war or to assassinate Assad. There are reasons for viewing Washington’s moralizing reaction to the horrifying chemical attacks of August 21, especially the rush to judgment with respect to attributing responsibility to the Assad regime without awaiting the results of the UN inspection team and the odd timing of a such a major attack just as the inspectors were arriving in Damascus. It is not only habitual skeptics that recall Colin Powell’s presentation of conclusive evidence of Iraq’s possession of WMD to the UN Security Council in the lead up to the unlawful Iraq War. We should by now understand that when a foreign policy imperative exists for the occupant of the White House, factoids replace facts, and moral/legal assessments become matters of bureaucratic and media duty.
Richard Falk | August 31, 2013 at 2:26 am | Categories: America, Commentary, Global Governance, International & Global Law, Syria | URL: http://wp.me/p19Wt7-lq