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Lawless President + Lawless Congress ≠ Legal Use of Force in Syria
On August 7, 1964, the United States House of Representatives voted 416–0, and the U.S. Senate voted 88–2, to support President’s Johnson’s decision to bomb targets inside North Vietnam in response to what the president said were North Vietnamese attacks on the U.S.S. Maddox and U.S.S. Turner Joy in the Gulf of Tonkin.
Those votes also authorized the “Commander in Chief to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression,” which helped open the floodgates to full-blown war in Vietnam.
Despite agreement between the president and the Congress, the president’s actions and the congressional vote violated both the United Nations Charter and the United States Constitution.
This would have been the case even if the North Vietnamese had attacked the two U.S. destroyers in the Gulf of Tonkin, which they did not.
Similarly, in October 2002, the House voted 296–133 and the Senate 77–23 to authorize President George W. Bush to resort to military force against Iraq “as he determines to be necessary and appropriate” in order to “defend the national security of the United States against the continuing threat posed by Iraq.”
This too was an illegal authorization of the use of force, and would have been even if Iraq had possessed WMD, which it did not.
These votes authorizing force were illegal because (a) the United States was not subjected to an “armed attack” on its territorial borders by Vietnam or Iraq; neither Vietnam nor Iraq had any capability to engage in such an attack, and (b) the UN Security Council did not authorize the United States to resort to force in Vietnam or Iraq.
On these two counts, then, the Congress voted in violation of the cardinal rule of the UN Charter—Article 2(4)—which prohibits the threat or use of force by states in the conduct of their international relations.
Significantly, there was a third count of illegality. As I mentioned recently, in 1967 the Lawyers Committee on American Policy toward Vietnam, which included some of the most prominent international law scholars and foreign policy intellectuals of that era, published an important legal memorandum called Vietnam and International Law.
In it, and while citing the supremacy clause of the U.S. Constitution—Article VI(2)—the Lawyers Committee wrote: “The United States Constitution considers ratified treaties to be the supreme law of the land and therefore considers any violation of such a treaty to be a violation of the Constitution.”
Thus, because the UN Charter is a treaty ratified by the United States, when the U.S. violates the Charter, it also violates the Constitution.
And, as the Lawyers Committee wrote: “No branch of Government is permitted directly or indirectly to violate the Constitution.”
The Lawyers Committee then wrote: “Individual nations are bound by their international obligations toward other nations, regardless of their constitutional law. By disregarding international obligations a country acts in violation of international law, even if such a violation had been authorized by domestic law or by a domestic organ. Were this not the case, any country could liberate itself from its obligations toward the international community simply by domestic legislation or domestic decision.”
The same law—international and constitutional—that applied to the U.S. war in Vietnam and the U.S. invasion of Iraq would apply to any congressional authorization of force in Syria by the United States.
Like Vietnam and Iraq, Syria has not engaged in an “armed attack” against the United States, and has no military capability to do so.
As in Vietnam and Iraq, the UN Security Council has not authorized the United States to engage in any use of force in Syria.
Thus, a congressional authorization of military force in Syria would violate the UN Charter, and thus, as above, the U.S. Constitution.
This would be the case even if the Obama administration’s claims about the use of chemical weapons by the Syrian government were accurate, although, like the Gulf of Tonkin incident and Iraqi WMD, there is no detailed or confirmed evidence to date about which entity in Syria used chemical weapons.
We have already seen in recent weeks that the president and the Congress (or at least congressional leaders) seem content to continue violating the Constitution’s Fourth Amendment ban against unreasonable searches and seizures with their ongoing warrantless phone, email, and Internet surveillance of Americans.
An authorization by Congress to use force in Syria would quickly build on that high-profile precedent of unconstitutionality, and identify the United States even further in the eyes of the world as the lawless state it is openly becoming.
As such, it is not possible for the United States to morally and legally vindicate the ban on the use of chemical weapons in Syria by an unconstitutional vote in Congress and an illegal use of force under the UN Charter.
In addition, the 1925 protocol banning use of chemical weapons―Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare―does not stipulate that military force should be used to enforce the ban on chemical weapons.
Rather than a U.S. resort to force, the UN Security Council with U.S. support should, as first steps, insist on an immediate ceasefire in the civil war in Syria and an accelerated implementation of a permanent cessation of hostilities in accordance with the steps outlined in the Geneva Communiqué of June 2012.
If President Obama, Secretary of State Kerry, and congressional leaders put as much effort into a lawful remedy to the war in Syria as they have on behalf of an unlawful one, the lawful one might succeed.