President Obama has warned Russia that invading a sovereign nation is a violation of international law that will not be tolerated. He has announced various economic and other sanctions. Clearly the United States would never have anything to do with anything like that.
Obama’s Illegal War Against Syria
Barack Obama wants to fire cruise missiles at Syria. As president of the nation whose military possesses the most lethal firepower of any society in history, he obviously has the ability to start this war — his sixth major front, after Afghanistan, Iraq, Yemen, Libya and Pakistan — if he wants to. But does he have the legal right?
The answer is no. Not if the basic architecture of the Constitution, the separation of powers, remains in force. Not if the Founding Fathers’ originalist intent, and their understanding of English at the time, means anything. Not if America’s treaty obligations, which after ratification carry the full force of U.S. law, are more than pieces of paper.
Might makes right; the victor writes history. No doubt, in the perhaps-not-so-distant future, if the United States is formally constituted as an empire, with Syria one of its outlying provinces or a vassal state, no one will care how it went down back in 2013. Until then, however, it matters a lot. Attacking Syria without legal basis would have broad implications, and not just for the Syrians who will lose their lives, limbs and sanity.
Back here in what neofascist politicians and media mouthpieces call the Homeland, we Americans are watching our top officials and boldface notables brush off the basic legal underpinnings of the political culture with impunity.
Obama and his allies’ disdain for the law probably won’t spark much street protest, much less an uprising. (These days, you have to be a white Republican to provoke a demonstration against your wars.) Nevertheless, official lawlessness is corroding the system, hastening the coming rebellion just as surely as rust will eventually cause a bridge to collapse. When those at the top don’t follow their own rules — rules that they wrote, rules from which they benefit the 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 the other warmongers are counting on ignorance and confusion to make their case, but the rules of war are clear.
Attacking Syria would be illegal.
Obama and his surrogates keep saying that Obama has the “inherent power” to attack Syria (or any other country) in his role as commander-in-chief. He’s only asking Congress for approval, he says, because he’s a nice guy (and the political cover doesn’t hurt if and when the war turns sour, as they usually do).
In The Federalist Papers, Alexander Hamilton explained the thinking behind the new Constitution to 18th century newspaper readers. The president’s role as “commander-in-chief” was nothing close to the lofty Caesar-like rights Obama claim. So ceremonial as to be virtually insignificant, the commander-in-chief gig barely rated a mention: “While [the powers] of the British kings extends to the declaring of war and to the raising and regulating of fleets and armies,” Hamilton explained, “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 president’s only military role is to repel an invasion — after it has occurred! — pending action by Congress. “The Framers,” writes Irons, “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.”
The Founders were split on a number of issues. Slavery, for instance. On separation of powers and making war, they were virtually unanimous. Only a single delegate voted to vest the president with the right to wage war.
Obama has no “inherent right” to attack Syria or any other country.
Under the Constitution, Congress could do it. But the U.S. is also subject to treaty obligations that clearly block it from attacking Syria under present circumstances.
The Kellogg-Briand Pact of 1928, which the U.S. Senate ratified by an 85-1 vote, bans all acts of military aggression. Many of the Nazi leaders executed and imprisoned at Nuremberg were convicted for violating this Pact. It remains in force as international law.
The U.N. Charter mandates that all U.N. member states “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” The Charter does not make exceptions for the three principal arguments Obama makes in favor of attacking Syria: punishment (for using chemical weapons), preemption (it’ll send a message to other possible future chemical weapons users, such as Iran and North Korea) and deterrence (it will deter Assad from attacking Jordan or Israel). To the contrary, the Fourth Geneva Convention outlaws “collective punishment” in which civilians are targeted to suffer for the offenses of their government.
During George W. Bush’s propaganda offensive leading to the 2003 invasion of Iraq, Bush and his allies (many of the same figures pushing to attack Syria) successfully convinced the public to sign off on their “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, Director of the Non-Proliferation Project of the Carnegie Endowment, said in late 2002. “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 very high bar. Even troops massed on your border don’t automatically qualify as an imminent threat under international law. You have to let the enemy hit you first, or have strong reason to believe they’re about to do so.
Now Obama can argue — and others will — that Geneva, Kellogg-Briand, the U.N. Charter, and even the U.S. Constitution are quaint, outdated relics, written by naïve men whose 20th century attempts to outlaw war are irrelevant today. If that’s what they think, then they should convince us to amend or annul them.
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, an ugly day of reckoning draws closer.
P.S. to Mr. Obama: Please, Sire, may we miserable subjects of your Benevolent Self kindly see proof that the Syrian government (and not the rebels) carried out that poison gas attack the other day? How about some evidence?
(Ted Rall’s website is tedrall.com. Go there to join the Ted Rall Subscription Service and receive all of Ted’s cartoons and columns by email.)
COPYRIGHT 2013 TED RALL
Not-So-Secret “Secret Bombings” Have Big Implications
Did Israel bomb Damascus yesterday? Of course it did. According to Syrian rebel sources, 42 Syrian army soldiers were killed. But Israel – following its customary policy – won’t admit it. This has happened before. Usually, Syria doesn’t say anything about Israeli airstrikes. (The Syrian government’s complaint about Sunday’s airstrike is unusual, and thus cause for concern that the civil war might escalate into a regional conflict.)
According to experts, the official silence following not-so-secret secret bombings reflect the fact that even enemies have to cooperate sometimes. If Syria acknowledges that it has been the victim of what international law and anyone with a dictionary defines as an act of war, Syrian citizens and non-Syrians throughout the Muslim world would pressure the government of President Bashar al-Assad into a war it can’t win. Knowing this, the Israelis – who don’t want a war that could unite the fractious Arabs against them and set the Middle East ablaze – let Assad save face. By refusing to confirm or to deny, they quietly gloat over what everyone knows, that they can come and go as they please over Syrian airspace (or fire long-range missiles from Israeli territory, since even the Syrians don’t seem sure what hit them yesterday).
We live in a time that bears out the most dystopian of George Orwell’s predictions, yet even in a world of bluster and BS few news events are as surreal and mind-blowing as a so-called secret bombing. There is, after all, nothing secret about bombs. Especially when they fall into a densely populated metropolis. Certainly the families of those 42 dead soldiers are in the loop.
“Imagine an airstrike on a US weapons depot and no one claims responsibility,” the political cartoonist Kevin Moore tweet-asked. “Would we be so blasé about it?” We would be if we were a weak nation and the attacker was a strong one.
Not that this is a first-time occurrence.
Older readers remember the so-called secret bombing of Cambodia in 1969 and 1970, when President Richard Nixon ordered the carpet bombing of North Vietnamese supply bases in eastern Cambodia and Laos, a violation of international law. It was a sensational scoop for to readers of the New York Times and members of Congress (who hadn’t been informed), but if you were there, there was nothing secretive about the 100,000-plus tons of ordnance dropped in 3800-plus sorties by American B-52s.
Tens of thousands of Cambodians, including many civilians, were killed.
As far as the rest of the world was concerned, however, the bombings were cloaked by a conspiracy of silence. The international media found out about it right away but coverage was scant and tentative. Cambodia’s leader, Prince Norodom Sihanouk, supposedly sent his tacit approval through back channels; for its part, North Vietnam couldn’t say boo because they weren’t supposed to be in Cambodia either.
The US drone war in Pakistan bears similarities to Cambodia, though it features a delicious extra dollop of deception.
As I reported in 2010, the United States isn’t so much occupying Afghanistan as it is using eastern Afghanistan as a staging area to launch drone strikes against tribal areas in western Pakistan. Again we have the ridiculous spectacle of something that couldn’t possibly be less secret – Hellfire missiles streaming out of the sky from buzzing drones circling Pakistani cities in broad daylight and blasting homes and cars – while both the Americans firing the weapons and the Pakistani government whose territory they are landing on officially deny knowing anything about them. Although Pakistani officials either claim helplessness in the face of American military might or condemn the drone strikes outright, thousands of people have died in hundreds of attacks under the Bush and Obama administrations as the result of a brutal quid pro quo: the CIA kills political dissidents and other “enemies of the state” on the Pakistani regime’s hit list in exchange for the privilege of killing “terrorists” it deems a threat. (It recently came out that CIA drone operators fire blindly, without knowing who they’re killing.)
The United States has similar arrangements with Yemen and Somalia.
Oh, and the U.S. doesn’t even officially acknowledge that it has a drone program. It’s classified. If it exists. Even though Obama jokes about it.
I wonder whether the lawyered-up officials who gin up these pssst arrangements worry about the geopolitical implications. For at least 200 years – arguably since the Peace of Westphalia in 1648 – the Western world has been governed on the basis of strictly defined borders. In the postwar era the United Nations has served primarily as an attempt to enshrine the sovereignty of nation-states. At the core of contemporary international law is the doctrine that invading the territory or airspace is an act of war, particularly when the victim is internationally recognized as sovereign. So how does that square with secret bombings?
If Israel can carry out acts of war against Syria with impunity, without suffering any sanction, and if United States can do the same in Pakistan, who is to say which cross-border incursions of the future are acceptable and which are not? If Syria and Pakistan tacitly consent to their territory being bombed, but don’t sign formal agreements to allow it, can they legitimately claim to be sovereign independent states? It seems to me that both the bombers and the victim countries are messing around with issues with huge potential ramifications without thinking them through.
When political leaders wallow in “who are you going to believe, me or your lying eyes” absurdism, citizens roll their eyes and learn to reflexively distrust everything they see and hear from officials and in mainstream media. How, for example, can you take an Israeli government seriously that has had nuclear weapons since the 1970s but refuses to admit it (and sabre-rattles with Iran over its nuclear weapons program, which probably doesn’t exist)? Or a United Nations that refuses to call them to account under nuclear nonproliferation treaties?
The greatest enemy of political stability is alienation. Citizens don’t have to like their leaders to hand them the tacit consent of the governed. But if a regime wants to stay in power, the people have to believe their government more often than not. It can’t be perceived as totally full of crap.
Just ask Mikhail Gorbachev.
Sure, all rules are arbitrary. But once you start breaking your own rules, you undermine the basis of legitimacy for the system you’ve created and hope to perpetuate. If we go back to the basis of nationhood – you have a right to exist if you can carve out borders, defend them, and repel invaders – we unwind the world order that has been in place for nearly half a millennium. Which may be for the better. But it’s probably something that we should all discuss.
In the open.
(Ted Rall’s website is tedrall.com. His book “After We Kill You, We Will Welcome You Back As Honored Guests: Unembedded in Afghanistan” will be released in November by Farrar, Straus & Giroux.)
COPYRIGHT 2013 TED RALL