We must also consider the downsides of not bombing Syria: A Response to Professors Goldsmith and Hathaway

I have to disagree with the essay (“The Downsides of Bombing Syria”) authored by my friends, professors Jack Goldsmith and Oona Hathaway, in which they insist that a possible U.S. strike in response to the recent Syrian chemical attack would breach both domestic and international law.

Tomahawk Land Attack Missile

I believe plausible legal rationales exist.  Moreover, although my experience is that any use of force always carries troubling downsides that we need to carefully consider (and especially here given the Russian and Iranian factors involved), we also must recognize that the downside risks of not bombing might also be very significant…and grave.

Of course, let’s keep in mind that as of this writing, White House Press Secretary Sarah Huckabee Sanders says that all “options are still on the table” and that “[f]inal decisions haven’t been made yet …”   Indeed, Secretary of Defense Jim Mattis said the Intelligence is still being assessed. But if it is shown that Syria is responsible and a decision is made to use military force, is it really true that there are no credible legal arguments to support it?

2017 Strike on Syrian airbase

In my view there are such arguments.  After last year’s U.S. missile strikes in response to Syria’s Khan Shaykhun chemical attack, I wrote a piece in which I offered legal justifications for the American action (“Yes, the attack on Syria was justifiable, and international law will benefit from it”). Among other things, I raised the possibility of an anticipatory self-defense rationale and noted:

The requirements of the law, and especially the way the US interprets imminence, may explain why the President said that Syria’s use of chemical weapons was “threatening the United States and its allies” and that “prevent[ing] and deter[ing] the spread and use of chemical weapons is vital [to the] national security interest of the United States.”  Similarly, Secretary Tillerson’s referenced the danger to Americans that the existence of these weapons in a chaotic place like Syria represented because they could fall into the hands of “elements on the ground in Syria” who are “plotting to reach our shore.”  This amounted, he says, to a “direct threat on the American people.”

In addition to the “direct threat” to our shores,  I pointed out that there were also reportedly about 500 U.S. troops actually in Syria, and that “the physical proximity of these U.S. troops to both Assad’s forces and terrorist fighters makes the case for an imminent threat to Americans significantly stronger.”

Today, there are considerably more U.S. troops in Syria – perhaps as many as 2,000  -well within range of a number of Syrian weapons’ delivery systems.  Accordingly, it is not unreasonable to conclude that the use of these uniquely dangerous weapons of mass destruction requires an aggressive response to protect the American boots-on-the-ground in the same theater of operations.

I also contended that Harold Koh’s 2013 argument about humanitarian intervention in certain narrow circumstances was supportive of a separate legal rationale for the 2017 strikes. I think the reaction of the international community to last year’s strikes is indicative of a growing consensus supporting limited interventions in select situations much as Professor Koh conceptualized, at least in the case of a clear violation of international law.

Importantly, former NATO Ambassador Nicholas Burns (now at Harvard’s Kennedy School) told CNBC today that “Trump has a right to respond to Syrian chemical attack.” As to risks, Burns seemed to suggest that they are manageable contending that there “is no reason to think Russia is going to fire back at the United States.”

Regarding domestic law, I disagree with Jack’s and Oona’s uncharacteristically overboard assertion that “[i]f you support the coming air strike in Syria, you are supporting a rationale that allows the president to use air power unilaterally basically whenever he sees fit.”

To my way of thinking, the specific facts of each case determine the President’s authority, and they can – and do – vary from situation to situation.  The facts here include not only defiance of a jus cogens norm of international law, but also 2,000 real, live American troops in striking range of Syrian forces.   Not responding forcefully to the use of chemical weapons increases the risk to those troops as Assad and his allies might think they now have an ability to intimidate the U.S.   We can’t forget that a perception if not fact of weakness carries a real human cost in that part of the world.

In any event, it is simply untrue that anyone believes that force is justified under these specific circumstances also supports the President using force “basically whenever he sees fit” – in fact, I don’t know anyone who would leap to that conclusion. Where a weapon of mass destruction is used, particularly in the same theater as Americans are serving, it is hardly giving the President a blank check to believe that he has, as Ambassador Burns put it, a right to respond.

Allow me to reiterate a key point from what I said in my earlier post: the rule of law is much at stake. Here’s what I said last year:

It’s not surprising that a growing number of observers have been questioning the efficacy of international law.  In a New Yorker essay last August (“Does Anyone in Syria Fear International Law?”) journalist Ben Taub lamented that “[n]owhere has the supposed deterrent of eventual justice proved so visibly ineffective as in Syria.”  He made this incisive observation:

The Syrian war has become a conflict in which war crimes carry no consequences—present or, seemingly, future—and in which their perpetration has been normalized as a part of military strategy, rather than being seen as an aberration.  The prevailing climate of impunity has emboldened other governments to carry out atrocities in the pursuit of their objectives…Western countries and the United Nations have spent the past five and a half years condemning atrocity after atrocity in Syria, to no avail.

In short, overly-blinkered analyses of the law governing the use of force that leave the international community impotent in the face of the kind of horror Syria inflicted in the recent chemical attack defeat the purpose for which the law exists in the first place.

We have to rebuild respect for international law and, unfortunately, that can require force like we saw yesterday.  Absent consequences, international law could continue to devolve into irrelevance; indeed, interpretations of international law that don’t provide a viable avenue for accountability for the most egregious violations will doom it.  Should we not say, to paraphrase Justice Jackson, that international law is not a suicide pact?

Jack and Oona were very right to illuminate the risks associated with a potential forceful response to the latest chemical attack if Syria proves to be the culprit.  And most of the risks they highlight are real ones – escalation and other unintended consequences.  Still, if law is to mean anything, there has to be serious consequences for a serious violation of it.  I’m convinced that not doing anything carries profound risks for international order.

If the answer is simply diplomatic protestations and the like, I fear we will be entering a era where the world’s most dangerous actors will consider the law as little or no impediment to whatever atrocity they choose to inflict. Enabling a sense of impunity is an extraordinarily dangerous downside to not bombing, even as we recognize the risks of any military operation, and especially in the Middle East.

Having said all this, let’s be clear that military action needs to be part of a larger strategy. The Atlantic reported:

Ms. Dalton

Melissa Dalton of the Center for Strategic and International Studies, meanwhile, suggested a hybrid of several of these options: a mix of American measures such as punitive strikes against Syrian aircraft used in Douma, sanctions for nations that have supported Assad’s deployment of weapons of mass destruction, a push for a negotiated end to the Syrian war that holds Assad accountable for his WMD use and large-scale conventional violence, and a commitment to sustained counterterrorism and stabilization missions in Syria. 

This is a sensible approach that thoughtfully incorporates a range of actions into a larger, strategic effort.  Yet at the same time, it is hard to see how this approach can succeed without the “punitive strike” element Ms. Dalton recommends.

Let’s pray that somehow an attack can be avoided, but let’s also have the courage to use force if we must to stop these horrific crimes against the helpless, and to ensure Americans, to include those we sent in harms’ way into Syria, are protected.

But as we like to say at Lawfire, check the facts, assess the law and the arguments, and then decide for yourself!