Law and the Choice of War

Secretary of State Tillerson recently announced that U.S. troops will remain in Syria even after the fight against ISIS ends. The military mission will include preventing the Assad regime from re-establishing control over rebel-held territories. This means the U.S. is taking sides in the bloody Syrian civil war, sliding ever more deeply into the quicksand of permanent war in the Middle East.

All of this without public debate or legal authorization.

Hats off to Senator Corey Booker and Professor Oona Hathaway for pointing out in the New York Times that keeping U.S. troops in Syria without the approval of Congress or the UN Security Council would be illegal. The same could be said for other U.S. military operations in the world today.

According to the U.S. Constitution, the authority to declare war rests squarely with Congress. That authority has eroded over the decades and was dealt a body blow by presidential war-making in Vietnam. In 1973 Congress passed the War Powers Act in a faint attempt to recover some of its constitutional authority. The law requires the President to notify Congress within 48 hours of sending troops into hostilities and to end military operations within 60 days if Congress does not declare war or authorize the use of military force.

This attempt to constrain executive war-making was steamrolled in the stampede to war after 9/11. Congress adopted an initial Authorization to Use Military Force (AUMF) allowing military action to suppress Al Qaida under the principle of self-defense. That thin authority has since been stretched, warped and distorted beyond recognition into a blanket authorization for permanent military operations without geographic or temporal limits. The U.S. is bombing Libya, Somalia, Iraq, Syria, Afghanistan, and Pakistan and has forces deployed in those countries and an unknown number of others.

Under the Charter of the United Nations, a treaty binding on the U.S. which the U.S. basically wrote, nations are prohibited from using military force in other countries unless in self-defense or when authorized by the Security Council. The outlawing of war was derived from the Kellogg-Briand Peace Pact of 1928, in which the United States and dozens of countries vowed to renounce the use of war as an instrument of national policy. Read The Internationalists by Hathaway and Scott Shapiro for the stirring story of how that prohibition emerged.

We know of course that political leaders often sign such documents with fingers crossed, but the prohibition against war is a legal fact and a sound principle.  It was established as a way of avoiding war and discouraging nations from sending troops across borders without authorization.

If we want to be a nation of laws, as we claim, a good place to start would be in obeying international prohibitions against military intervention. We’d better do it fast before we get bogged down in the chaos of Syria.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s