Syria: Obama’s Surprising (and Confusing) Latest Moves by Richard Falk

President Obama’s August 31st remarks from the White House Rose Garden will long be remembered for their strangeness, but the final interpretation of their significance will have to await months if not years.

Richard Falk

There are three dimensions, at least, that are worth pondering: (1) seeking Congressional authorization for a punitive military attack against Syria in support of the treaty prohibition on recourse to chemical weapons in an armed conflict; (2) reconciling any endorsement of an attack by Congress with United States obligations under international law and with respect to the United Nations and its Charter; (3) assessing the degree to which American war making prerogatives continue to operate within an unacceptable domain of American exceptionalism.

In framing the issues at stake Obama set forth the fundamental policy choices in a rather incoherent manner:

• First of all, he asserted that on the basis of evidence available to the United States Government, that the Assad regime was without doubt responsible for the massive chemical weapons attack of August 21^st directed at the Ghouta residential neighborhood on the outskirts of Damascus, and causing over 1,000 civilian deaths, including several hundred children. The Russian president, Vladimir Putin, clearly articulated the grounds for skepticism about this American construction of the Ghouta atrocity. He put forward a strongly worded request that the allegations be confirmed by the release of convincing evidence. This is a reasonable demand. Many around the world have questioned why Assad would launch such a provocative attack to coincide with the arrival of UN inspectors, and when the battlefield balance was tipping in favor of the Damascus regime. All along such important figures in the Obama administration, especially John Kerry and Joe Biden, have arrogantly dismissed the relevance of any information provided by the UN inspection team. In light of the gigantic deception relating to Saddam Hussein’s supposed weapons of mass destruction (WMD) arsenal, which was more politely described long after the event as an ‘intelligence failure,’ it would have been appropriate for Washington to admit that it has a credibility problem in winning governmental and popular support for an attack on Syria. Its refusal to acknowledge such an issue merely deepens suspicions.

• Secondly, Obama informed listeners that “..after careful deliberation, I have decided that the United States should take military action against Syrian regime targets.” He added that he made this decision “as Commander-in-Chief on what I am convinced are our national security interests.” This conclusion was explained to rest on the importance of punishing such a crime against humanity and deterring future recourse to chemical weapons and other weapons of mass destruction by Syria, as well as sending a message to Iran and North Korea about America’s readiness to use force to uphold such norms of international law.

• Thirdly, there was no effort in Obama’s remarks to show why, absent a UN mandate, the United States in coalition with a few other countries, had the legal authority to attack a sovereign state in a circumstance other than self-defense.

• Fourthly, although the decision against involvement by the British Parliament was noted, there was no consideration as to whether such an outcome should bear on American policy. Nor was the German or Italian unwillingness to join in the attack noted, nor that of the Arab League. But the French support was duly appreciated, including a dig at the United Kingdom, by reminding his listeners around the world that it was France that was America’s “oldest ally.” (It is worth noting that the roles of these two European friends were directly reversed in the context of the Iraq War; then, it was the French more conservative led government that opposed participation, while now a socialist leader in Paris supports an attack against Syria).

• Fifthly, and in the most dramatic passage in the speech, Obama announces that because the United States is a proud democracy he has made “a second decision: I will seek the authorization for the use of force from the American people’s representatives in Congress” by calling for a debate and vote. No mention is made of a time frame, nor how he would react in the event that authorization was not forthcoming. Such an eventuality would set up a potential tension between his duties to uphold national security and an obligation of deference to a decision by Congress on the vital matter of authority to wage war. Obama touched all the bases by saying, “Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective.” In effect, there is no constitutional legal requirement to obtain Congressional authorization, but doing so will create a more effective response. But what if authorization is withheld? Or Congress is split with approval by the Senate, and disapproval by the House?

• Sixthly, there is an implicit endorsement of American exceptionalism. After saying that the case for an attack will be made internationally, as well as domestically, Obama reaffirms a national prerogative of illegal unilateralism. He uses this phrase: “But we are the United States of America, and we cannot and must not turn a blind eye to what happened in Damascus.” That is no matter that others disagree, the United States alone has the duty to act as it sees fit. It is correctly presumed that such discretion is not vested in other sovereign states. Otherwise the world would be in flames. In effect, Syria, Iran, North Korea are bound by international law, as interpreted by the United States, while the United States and its closest allies are guided by assessments of their national security interests.

It is this double standard that is at the core of American exceptionalism, and also underpins the debate as to whether it is more instructive to view the United States as ‘global leader’ or ‘imperial power,’ or possibly some blend;

There is something rather sinister about announcing an intention to strike a vulnerable country with which the United States is not at war, coupled with the announcement that the needed military capabilities are in place, but will not be used until convenient; in effect, a lethal strike against Syria can take place at any point from now on until a time weeks or months from now, depending only on the workings of the internal American political process and the disposition of its Commander-in-Chief. If this is deemed to be in the interest of the Syrian people, I would like to know how.

Even if the controversy as to the facts is ignored, and the problems associated with double standards as to the relevance of international law to the use of force, there are some other reasons for concern about the approach adopted by President Obama:

• It denies constitutional status to the request for Congressional authorization, making it a discretionary presidential judgment call that is not necessitated by the Constitution, but is an expression of Obama’s belief in democratic procedures. To not rest this request on the Constitution itself is a missed opportunity, and thus amounts to yet another reassertion of excessive authority by the Executive Branch of government;
• It makes no effort to assess what would be of benefit to the people of Syria, and rather makes the case for a narrow strike as a combination of punishing (without intending to displace) the Assad regime and abstract American national security interests in its self-appointed role as preventing the use and spread of WMD;
• It fails to advocate in a serious manner a diplomatic approach to ending the violence of the conflict by calling for a second Geneva conference with the full participation of Iran that would deal with regional peace and security issues, as well as the war in Syria;
• It undermines the authority of the UN and international law by vesting in the U.S. Government the final word on when it is appropriate to use international force in non-defensive modes and fails to make war a matter of ‘last resort’;
• It draws an overly sharp a distinction between this incident involving chemical weapons and other massacres that have occurred during the course of two years of strife in Syria; regardless of the weaponry deployed both forms of violence are crimes against humanity that deserve a serious and effective response, if available.

*******************************************************************

It is as yet possible that Congress will rescue Obama from having to respect a red line he ill-advisedly proclaimed a year ago. It would be ironic if this one time the anti-Obama Republicans saved him from the worse foreign policy excess of his presidency!

It is possible that Obama will be pushed by pro-interventionists to override a Congressional failure to give authorization. It is also possible that Congress will authorize, and public opinion strongly oppose. And we are left to wonder whether Congress can constitutionally authorize a use of force that violates international treaty law. Of course, we would be unlikely to find out given the passivity of the U.S. Supreme Court when it comes to challenges directed at legally dubious foreign policy and national security matters.

All of the above suggests that the revitalization of American republicanism requires, as a matter of urgency, a constitutional convention with an explicit mandate to restore the separation of powers and checks and balances in relations to war/peace issues. The U.S. Government has longed strayed from this vital pillar of republican democracy.

Nothing would do more to restore confidence in the United States as a global leader! Such a momentous event will not happen without massive grassroots pressure; it will never be decreed from on high.

A final word of blurred appreciation: CNN talking heads are very fond of referring to Obama as epitomizing ‘the reluctant warrior.’ And reluctant he is, but also warrior he has been, and continues to be, casting a rather dark shadow over the Nobel Peace Prize decision process. The reluctance is articulated over and over again in his words and sometimes reflected in his policies, and certainly seems sincere. And such reluctance may be credited, at least subconsciously, with this welcome move to broaden the domestic authorization process with respect to this non-defensive use of international force. Obama would deserve less ambiguous praise if he had recognized the role of Congress prior to the decision of the British Parliament. And prior the many demands from Congress for a greater role gathering political momentum. More

______________________

Editorial

I question how the international community can discipline a States Party to the United Nations for acting unilaterally? States that carry out drone strikes, committing extra-judicial killings, allegedly as part of their war on terror, a 'war' that the said state may be at least partially responsible for causing.

There has to be accountability, or as Richard Falk points out; Obama reaffirms a national prerogative of illegal unilateralism. He uses this phrase: “But we are the United States of America, and we cannot and must not turn a blind eye to what happened in Damascus.” That is no matter that others disagree, the United States alone has the duty to act as it sees fit.

The international community must uphold the Rule of Law, the United National and all International Organizations have an obligation to uphold the Rule of Law. The mandate of the Geneva Conventions must be upheld. I argue that it is a human right for all states to be held accountable and for there to consequences for illegal actions. Editor

Syria: U.S. War Making at the Expense of Democracy by Richard Falk

The U.S. Government rains drone missiles on civilian human targets anywhere in the world, continues to operate Guantanamo in the face of universal condemnation, whitewashed Abu Ghraib, Bagram, and the torture memos, committed aggression against Iraq and Afghanistan, and invests billions to sustain its unlawful global surveillance capabilities.

Richard Falk

Still, it has the audacity to lecture the world about ‘norm enforcement’ in the wake of the chemical weapons attack in the Ghouta suburb of Damascus. Someone should remind President Barack Obama and Secretary of State John Kerry that credibility with respect to international law begins at home and ends at the United Nations. Sadly, the American government loses out at both ends of this normative spectrum, and the days of Washington being able to deliver pious messages on the importance of international law are over. No one is listening, and that’s a relief, although it does provide material for those teams of writers working up material for the likes of Jon Stewart, Stephen Colbert, and the many standups at Comedy Central. Yet, of course, this geopolitical TV series is no laughing matter for the long ordeal of the Syrian people.

There is yet another disturbing dimension of this pre-war pseudo debate about recourse to force in retaliation for an alleged use of chemical weapons by Assad against his own people: should a democracy empower its elected leaders to commit the country to war without at least securing specific legislative authorization? The contrast between the approach of the British and American approach to this issue is illuminating. David Cameron, as Prime Minister, along with his Foreign Secretary, strongly favored joining with the United States in launching a punitive attack against Syria, but arranged a prior Parliamentary debate and vote, and clearly indicated his immediate acceptance of the surprising refusal to win backing for such a policy, a show of Parliamentary independence that had not occurred in the country since the late 18th century. Of course, given polls showing only 11% of British citizens supporting an attack on Syria, Cameron may be privately breathing a deep sigh of relief that the vote came out as it did! Obama should be so lucky! If only his powers as Commander-in-Chief included a tool with which to erase imprudent ‘red lines’!

Compare now the Obama approach: speeches informing the country about why it is important to punish the Assad regime so as to uphold American national security interests and to engender respect for international law and several consultations with Congressional leaders. What is absent from the Obama discourse is the word ‘authorization’ or ‘a decent respect for the opinions’ of humanity, as expressed at home and in the world. In my view, this continuing claim of presidential authority to wage war unilaterally, and absent a UN mandate, is creating a deep crisis of legitimacy not only for the U.S., but for all governments that purport to be democracies but commit to war on the decision of the chief executive, as France and Turkey appear to be doing. It is time to face up to this crisis.

Above all, the foundational idea of American republicanism was to demonstrate that the power to declare and wage war was subject to ‘checks and balances’ and ‘separation of powers,’ and in this crucial respect, was unlike the monarchical powers of English kings in war/peace contexts. This makes the Parliamentary rebuff to Cameron not only a revitalizing move for British democracy, but an ironic commentary on the degree to which American ‘democracy’ has perversely moved in an absolutist direction.

It is true that government lawyers as hired hands can always find legal justifications for desired lines of policy. We can count on White House lawyers do just this at the present time: working into the night at Office of the Legal Counsel to prepare breifing material on the broad scope of the powers of the president as Commander-in-Chief, reinforced by patterns of practice over the course of the last several decades, and rounded out with an interpretation of the War Powers Act that supposedly gives the president 60 days of discretionary war making before any obligation exists to seek approval from Congress. Lawyers might quibble, but democracy will be the loser if procedures for accountability and authorization are not restored with full solemnity. In this respect the law should follow, not lead, and what is at stake is whether the republican ideals of limited government would be better served by the original ideas of making it unconstitutional for a president to commit the country to war without a formal and transparent process of public deliberation in the Congress, which is that part of government charged with reflecting the interests and values of the citizenry. Let the lawyers be damned if they side with the warrior politicians, however ‘war weary’ they claim to be.

It is worth also noticing that the common arguments for presidential authority do not pertain. The United States is not responding to an attack or acting in the face of an imminent threat. There is no time urgency. Beyond this the American public, as is the case with the publics of all other Western democracies, oppose by large majorities acts of war against Syria. What makes this situation worse, still, is the refusal to test diplomacy. By international law norms, reinforced by the UN Charter, a use of force to resolve an international conflict is legally a matter of ‘last resort’ after diplomatic remedies have been exhausted. But here they are not even being tried in good faith, which would involve bringing Iran into the process as a major engaged player, and enlisting Russia's support rather than exhibiting post-Snowden pique. Obama claims that no one is more war weary than he is, but his behavior toward Syria, Iran, Egypt, and Russia convey the opposite message.

And finally, some urge what be called ‘a humanitarian right of exception,’ namely, that this crime against humanity committed against the Syrian people requires a proportionate response from the perspective of international morality, regardless of the constraints associated with international law. Disregarding ‘the slippery slope’ of moral assessments, this particular response is being presented as directed against the Assad regime, but not motivated by any commitment to end the civil war or to assassinate Assad. There are reasons for viewing Washington’s moralizing reaction to the horrifying chemical attacks of August 21, especially the rush to judgment with respect to attributing responsibility to the Assad regime without awaiting the results of the UN inspection team and the odd timing of a such a major attack just as the inspectors were arriving in Damascus. It is not only habitual skeptics that recall Colin Powell’s presentation of conclusive evidence of Iraq’s possession of WMD to the UN Security Council in the lead up to the unlawful Iraq War. We should by now understand that when a foreign policy imperative exists for the occupant of the White House, factoids replace facts, and moral/legal assessments become matters of bureaucratic and media duty.

 

Richard Falk | August 31, 2013 at 2:26 am | Categories: America, Commentary, Global Governance, International & Global Law, Syria | URL: http://wp.me/p19Wt7-lq

 

UN's Falk draws heat for saying US had Boston attack coming

GENEVA (AP) — A UN special investigator has linked the Boston marathon bombings to the United States’ superpower status and Washington’s policy on Israel, drawing the ire Wednesday of top U.N. and government officials.

Richard Falk

Richard Falk, the special rapporteur on human rights in the Palestinian territories, wrote about the attacks in an April 21 commentary in Foreign Policy Journal that “the American global domination project is bound to generate all kinds of resistance in the post-colonial world.”

Falk also said “as long as Tel Aviv has the compliant ear of the American political establishment, those who wish for peace and justice in the world should not rest easy.” He said President Barack Obama hasn’t adopted a “more balanced approach to the Palestine/Israel impasse.” Instead, Falk accused Obama of “succumbing to the Beltway ethos of Israel first.”

UN spokesman Martin Nesirky said in response to reporters’ questions Wednesday that Secretary-General Ban Ki-moon rejects Falk’s comments, which could undermine the U.N.’s credibility and work. “The secretary-general immediately condemned the Boston marathon bombing and he strongly believes that nothing can justify such an attack,” Nesirky said.

The British and U.S. missions to the UN in New York and the advocacy groups Anti-Defamation League and UN Watch all questioned Falk’s capabilities for the UN job.

In a statement, the British mission said this is “the third time we have had cause to express our concerns about Mr. Falk’s anti-Semitic remarks. It is important to the U.K. that special rapporteurs uphold the highest standards in their work and we have twice previously made clear that remarks by Mr. Falk were unacceptable.”

Israel has barred Falk, who reports to the 47-nation UN Human Rights Council in Geneva, from visiting the Palestinian territories because he has compared Israel’s treatment of Palestinians with the horrors of Nazi Germany. He also is an American professor emeritus of international law at Princeton University. More