Legal & political aspects of military intervention in Syria

Should the US attack Syria? Has Assad used chemical weapons against his own people? Would US intervention violate public International law?

Regardless of the answers to these questions, an upcoming vote on Capitol Hill illustrates how foreign affairs are as much about domestic politics, as it is about International relations.

Syrian President Bashar  al-Assad and his wife, Amsa.

President Obama has played a brilliant game of chess against the Republicans. How you might ask?

Prudently, the President is wise in asking for a Congressional vote. It is a tough decision and vesting everyone in the decision process is smart.

Politically, a Congressional vote on Syria puts the Republicans on record prior to the 2014 mid-term

elections, which makes such a vote all the more sensitive and strategic.

The Constitution does not require the President to ask Congress’ permission to engage the armed forces in hostilities. War making powers are shared jointly between the Executive and Congress.

Is military action against Syria legal under public International law?

Under the UN Charter, states may only use force in two instances: self-defence or when the Security Council has authorized force to maintain or restore international peace and security.

Here, Syria has not attacked American citizens, assets, or allies; nor has the Security Council authorized the use of force. The Syrian government is merely engaging in an internal conflict to suppress rebels.

Additionally, Customary International law would allow Syrian government officials, such as Bashar al-Assad to be prosecuted for crimes against humanity and the use of chemical weapons, even though Syria has not become a party to the Genocide, Torture, or Ban on Chemical Weapons conventions.

Regardless of International conventions and customs, US law recognizes the ratified treaties at taking the same status as federal law. This means, the UN Charter, as a treaty, is tantamount to federal law. Congress is free to override federal law by adopting resolutions. So under an American law analysis, Congress can do whatever the hell it wants, so long as that action doesn’t violate the Constitution.

The notion that Congress must pre-approve military action is erroneous. Article I, Section 8 of the Constitution grants Congress a non-specific power to ‘declare war.’ However, of the 130 plus times military action has been taken abroad, Congress has only declared war 5 times.

US President Barak Obama with Speaker John Boehner (left).

Under the Presidential War Powers Act, President Obama, as commander-in-chief, may introduce the military to hostilities without Congressional notice for a period of 60 days. The Act goes on to mention that hostilities must comply with: (i) declaration of war, (ii) statutory authority, or (iii) national emergency. Additional time for hostilities is granted upon Congressional approval.

Here, President Obama would be allowed to introduce the military into foreign involvement without Congressional approval.

Why ask Congress for permission if President Obama doesn't legally need it?

Remember the mid-term elections are fast approaching. A Congressional vote on Syria puts the Republicans on record prior to the 2014 elections, which makes this vote highly political. This is why Speaker John Boehner, a supporter of Syrian intervention, isn't making this a partisan vote – he needs to ensure Republicans are re-elected.

Politically, the issue of Syria is dividing the Republican Party into the Paul Republicans (non-interventionists) and the McCain Republicans (the war-hawks).

Here in Western Colorado, Congressman Scott Tipton announced he would be voting ‘no’ during a town hall meeting recently in Durango.

Both of Colorado’s US Senators, Mark Udall and Michael Bennet, are vacillating over how to vote regarding Syrian intervention to punish the use of chemical weapons.

Meanwhile, on the International stage (remember, I said foreign affairs was only partly about domestic politics), Russian President Vladimir Putin has asked the US to present evidence before the UN Security Council that the Assad government was responsible for the chemical weapons attack.

If the US proceeds without a UN Security Council resolution, then legally this action would be pre-emptive self-defence or a unilateral enforcement an International custom (the ban on chemical weapons). Both concepts would dramatically expand the Bush precedent.

Targeted Syrian assets.

Recently, in Stockholm, President Obama said, “My credibility isn't on the line, the whole international

community's credibility is on the line, Congress' credibility is on the line.”

Actually, Mr President, your credibility is on the line, as you’re the one proclaimed Syria used chemical weapons and that the US should take punitive action.

While the White House has gotten the entire International community in a frenzy, one thing is for certain, if the US strikes Syria, no longer will President Obama be able to blame the results on the George Bush Administration.