Harold Hongju Koh is Sterling Professor of International Law at Yale Law School and was Legal Adviser of the U.S. Department of State from 2009 to 2013.
Editor’s Note: This piece was originally published on Just Security, a new blog with a fantastic team of editors and contributors who will be well known to our readers. Although the blog claims to be dedicated to US national security law and policy, the first week of posting suggests it will be an important forum for discussion of international law issues. We urge you to check it out!
Crises are lived forward but understood backwards. While it is still too early to know how the Syria crisis of 2013 will end, we can start evaluating what precedents of law and policy it should generate, properly understood. Notwithstanding a welter of political miscues, when the dust settles, history might well remember the episode as “Obama’s Harfleur:” where an announced threat of potentially illegal force catalyzed a better nonviolent result, here by reinvigorating multilateral diplomacy abroad and much-needed public debate at home.
To explain why, Part I of this – my first for Just Security and EJIL:Talk! — will sort out first, what went wrong; and second, why the proposed military action was lawful under domestic law. Part II will discuss third, whether the proposed military action was lawful under international law; and fourth, what might still go right if we, as constructive observers, can help get it there.
1.What went wrong: To read recent blog commentary, one might think that the villain of this piece is Barack Obama, not Assad or Putin. But from the start, the President has been the quintessential reluctant warrior, who for years tried to avoid military intervention in Syria, and just this May, gave a major speech at NDU reaffirming that he wants to end wars in Iraq, Afghanistan, and against Al Qaeda. Just as undeniably, Assad is a war criminal who has slaughtered his own people for months and lied about it–with and without chemical weapons –while Putin has given him shameless cover with four vetoes, lies, and sickening rhetoric. Putin’s hypocrisy culminated in his recent “pro-international law” op-ed in the New York Times, which pretended that despite condoning civilian slaughter for many months, Russia was not trying to protect the Syrian government, and that the Syrian opposition, not Assad, had deployed chemical weapons.
That said, the President also failed, not by announcing a “red line” against the use of chemical weapons, but by failing to lay the political groundwork necessary to successfully enforce it. He failed to make clear earlier that Assad’s deliberate launch of chemical weapons against his own population would cross a near-century old redline set by international law, not by Obama alone. And he failed—starting in August 2012 and earlier—to socialize first congressional leaders and then, key allies to publicly commit to help enforce that red line if breached. Obama’s subsequent problems under domestic and international law flowed from those political and public relations errors.
If the President seriously intended to use force to discourage a repeat use of chemical weapons, two prerequisites to lawful and effective action were “nesting” and “sequencing.” Obama did neither. He should have nested the hard-power element within a broader “smart power” strategy designed to pursue the U.S.’s broader objectives in Syria: not just securing chemical weapons, but also engaging in effective diplomacy to achieve a cease-fire, ensure the delivery of humanitarian aid, and promote Assad’s accountability and eventual ouster. With this broader strategy publicly described, his next imperative was proper “sequencing:” he should have secured multilateral approval for the use of force ex ante, and then sought congressional authorization for the use of military force (AUMF) up to the level of international approval. This was the sequence secured by George H.W. Bush for his military action against Saddam Hussein in 1991, and initially attempted by Obama for his own prior military action in Libya. Here the obstacle, of course, was Russia: which refused to vote for essentially the same U.N. Security Council language it had supported in Libya, claiming that force had been overused on that occasion to remove Qaddafi from power.
Russia’s obstinance placed Obama’s diplomats for many months in the awkward position of offering anodyne draft Security Council resolutions searching for a linguistic formula that the Russians would “abstain to” in the name of stopping the violence in Syria. The implicit (and reasonable) diplomatic strategy was to get the Russians on board to something, and then to escalate to stronger Security Council resolutions if the one the Russians finally let pass did not succeed in stopping the violence. But that key first step never happened, notwithstanding Secretaries Clinton’s and Kerry’s repeated meetings with Foreign Minister Lavrov and U.N. Special Envoy Brahimi in search of a Security Council resolution the Russians would sign.
That brought us to August 21 of this year, when the Administration received unmistakable proof of Assad’s deliberate chemical assault on innocent civilians. For a President who had announced in his December 2009 Nobel Prize acceptance speech, “I believe that force can be justified on humanitarian grounds, as it was in the Balkans, or in other places that have been scarred by war,” the question became how best to back up those words with meaningful action.
Thereafter, things went haywire. The British Attorney General issued a post-Kosovo legal opinion indicating that humanitarian intervention without Security Council resolution could be lawful under international law. The French apparently agreed. But while the American and British executive officials were thinking “Kosovo, Halabja, and Rwanda,” their publics were thinking “Iraq.”
That mindset led British Prime Minister Cameron to bungle his own domestic politics and trigger a rare, premature parliamentary vote that opposed military force, effectively removing the British from the military coalition. The Arab League endorsed international action, but shied away from approving “all necessary measures,” making it difficult to invoke the UN Charter Article 52 “regional organizations” route to skirting a Russian veto that had been famously deployed during the Cuban Missile Crisis.
Facing weak support abroad and at home, the President pushed the pause button not once, but twice: first saying on August 30, that instead of using the previously threatened military force, he would seek prior approval from a distracted and divided Congress when he plainly had not secured the necessary House votes. Three weeks later, he postponed indefinitely that congressional vote—which he likely would have lost—in order to pursue diplomatic alternatives that remain ongoing.
For the reasons below, under U.S. law, prior congressional approval was not legally required for the limited strike that the President proposed. Still, he reasonably deemed it politically prudent, given the intense congressional questioning voiced following the British parliamentary action. But the President’s greater political miscue was diplomatic. He failed, in his August 30 Syria speech, to address not just the American public, but Putin and Assad. Obama should have made clear to the G-20 that he was going to St. Petersburg to mobilize the other 17 leaders to put pressure on Russia and China to support a long-overdue Security Council resolution, or be publicly blamed for complicity in mass slaughter by a per se illegal weapon. And he should have made it clear to Assad that his only way to avoid a U.S. attack was to admit the use of chemical weapons, permit U.N. inspections, and promptly turn over his existing stockpiles. What now seems clear is that Obama had sent these messages privately and repeatedly–perhaps as early as the previous G-20 meeting in June 2012– but in so doing, he secured neither a united multilateral front nor the public commitment from Russia or Syria needed to allow him to claim a diplomatic victory in St. Petersburg. In short, the President neither nested nor sequenced. He drew a red line without doing the domestic or international politics needed to defend it. That made his abrupt threat of force this summer seem less principled than unilateral, and strikingly inconsistent with his broader –generally successful– first-term “smart power” approach to foreign policy.
Still, as the late Richard Holbrooke liked to say, diplomacy backed by force works better than just diplomacy. Obama’s threat had a catalyzing effect. It extracted Assad’s confession that he had a chemical weapons stockpile, and drew the Russians into a long-overdue diplomatic process. But it did not extract large enough concessions, which is why at this writing the U.S. remains locked in high-stakes diplomacy to secure that elusive Security Council Resolution at the U.N.
2. Was The Proposed Military Action Lawful Under U.S. Law? I do not blame the Administration for believing that a lawful way to use force in Syria could be found, under both domestic and international law. To my knowledge, the only public Administration position on legality is outgoing White House Counsel Kathy Ruemmler’s statement to the New York Times, which explained that, while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited. As a matter of domestic law, the Administration apparently concluded that congressional approval was not required: “administration lawyers decided that it was within Mr. Obama’s constitutional authority to carry out a strike on Syria as well, even without permission from Congress or the Security Council, because of the ‘important national interests’ of limiting regional instability and of enforcing the norm against using chemical weapons, Ms. Ruemmler said.” But (again quoting Ruemmler), “[t]he president believed that it was important to enhance the legitimacy of any action that would be taken by the executive … to seek Congressional approval of that action and have it be seen, again as a matter of legitimacy both domestically and internationally, that there was a unified American response to the horrendous violation of the international norm against chemical weapons use.”
To be sure, Ruemmler’s stated rationale is murky and a legal opinion of such significance should surely be laid out somewhere other than in a newspaper quote. But the legal analysis is defensible, for the following reasons (which carry over into Part II of this Post).
Under U.S. domestic law, as Marty Lederman has noted, there are now two competing extreme views of when the President may constitutionally use force abroad without congressional authorization. While distinguished scholars like Bruce Ackerman and John Hart Ely answer, in effect, “never;” extreme presidentialists like John Yoo answer, in effect, “always.” But as one might expect, historical practice lies somewhere between these poles. Obama’s lawyers could have concluded that this historical pattern constituted what Justice Frankfurter called in the Steel Seizure case “a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, [which] may be treated as a gloss on “executive Power” vested in the president by §1 of Article II.” After such cases as the Mayaquez, the Iran hostage rescue attempt, Grenada, Libya, the Philippines, and Kosovo, it is hard to deny some measure of congressional acquiescence to presidential initiation of smaller scale uses of force.
Simply put, at the initiation stage, the congressional approval question has become constitutional: “Is this ‘war’?” At the continuation stage (60-90 days later), the congressional approval question has become statutory: under the War Powers Resolution, “Is this ‘hostilities?’”
On the first question, Ruemmler is plainly invoking Walter Dellinger’s OLC Opinion on Bosnia, which Acting Attorney General for OLC Caroline Krass followed in Libya in 2011. OLC argues that the President can constitutionally initiate military action without prior congressional approval if (a) the use of force serves significant national interests that have historically supported unilateral actions –here, promoting regional stability and preventing destruction of the near-century-old ban on chemical weapons–and (b) if the operations are not expected –as the President made clear in his September 10 Syria speech–to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war,’ requiring specific congressional approval under the Declaration of War clause.” Under this reasoning, a large-scale offensive of the type initiated in Iraq in 2003 would plainly be “war,” which requires congressional approval. But even if Secretary Kerry mischaracterized the assault as “unbelievably small,” he was right to say that what was being envisioned was not “war” in a constitutional sense.
The statutory, “continuation” question—are these “hostilities” that should be abated or brought up for congressional approval 60-90 days after military action begins –would presumably have been evaluated only if a military action were continuing 60 days after it began. As my 2011 Senate Foreign Relations Committee testimony on Libya noted: “President [Obama] has never claimed the authority to take the nation to war without Congressional authorization, to violate the War Powers Resolution or any other statute, to violate international law, to use force abroad when doing so would not serve important national interests, or to refuse to consult with Congress on important war powers issues. The Administration recognizes that Congress has powers to regulate and terminate uses of force, and that the War Powers Resolution plays an important role in promoting interbranch dialogue and deliberation on these critical matters.” Whether the Administration would determine at the 60-day mark that the Syria action constituted “hostilities” for the War Powers Resolution would depend on evaluation of the statutory test stated in that Libya testimony: “the confluence of four factors, in an operation that was expressly designed to be limited—limited in mission, exposure of U.S. troops, risk of escalation, and military means employed.” In Libya, those factors “led the President to conclude that the Libya operation did not fall within the War Powers Resolution’s automatic 60-day pullout rule.” But depending on how the Syria mission would have been defined, the number and nature of U.S. troops deployed, the risk of escalation (which could well be much higher than in Libya), and the degree of violence used, the same factors might easily have come out differently in Syria.
The tough constitutional question, of course, to which we may now never have an answer, is what the President would have done had one or both houses of Congress either disapproved or not authorized his proposed action in Syria. This could have thrust him into Youngstown Category Three of the Steel Seizure framework, where the President’s power as Commander-in-Chief famously sits at what Justice Jackson called its “lowest ebb.” But presidential low tide is not the same as an absence of presidential power, and the President’s lawyers would have been looking for fact-specific arguments that some or all of the proposed military action could constitutionally proceed under the Commander-in-Chief power, even in the face of congressional silence or disapproval. As a former constitutional lawyer, the President’s obvious distaste for making such arguments spurred him to delay rather than act when the time came, in an effort to avoid the inevitable constitutional showdown. Had he used force over clear congressional opposition, there seems little doubt that such a matter would have been a nonjusticiable political question. But an article of impeachment likely would have been introduced in the House, as it was against Richard Nixon in the 1970s. As a political matter, Obama would likely have survived an impeachment debate, but at a time when he was facing a government shutdown, sequester, and an uncertain debt ceiling, the very last thing he needed was such a battle.
So no surprise, the Syrian crisis was rife with political mistakes. But hasn’t this been Obama’s broader problem, from Gun Control to Guantanamo: admirable principle, not backed by the necessary politics? And as my next post will show, that does not mean he was wrong as a matter of law — domestic or international– or that the diplomatic approach we have now stumbled into couldn’t eventually lead to a better outcome.
In his speech Tuesday before the U.N. General Assembly, Obama wisely hit “reset,” pushed back against Putin’s dismissal of American exceptionalism and started to do what he should have done diplomatically months earlier. He “re-nested” his Syria policy amid two broader regional objectives: “Iran’s pursuit of nuclear weapons, and the Arab-Israeli conflict.” And he “re-sequenced” by calling on UN members to support a Security Council resolution on Syria and provide humanitarian assistance, recalling international law to the historic task of meaningfully enforcing a ban against “the brazen use of chemical weapons.” Obama’s last month called to mind Henry V, where a principled, untested but now war-weary leader gambles and threatens illegal force to win a key battle and make a nonviolent entry into Harfleur. As Kenneth Branagh’s version shows, no one knows if the leader actually would have used force, had his bluff had been called. But after months of stalling, it seemed to be the threat of violence that finally brought both Assad and the Russians back to the negotiating table with regard to chemical weapons. But as the health struggle shows, if President Obama has learned anything, it is how to “win ugly.” As his longtime strategist, David Axelrod, put it, “If he gets this right in the ninth inning, no one will remember what the fourth and fifth inning looked like.”
Next: Part II: International Law and the Way Forward – coming next week