On Asking for Forgiveness Instead of Permission

I agree completely with this new post by Peter Spiro over at Opinio Juris, in which he argues:

The key mistake Obama made was going to Congress for approval. The disaster that has followed shows why presidents have (or now, perhaps, “used to have”) the power unilaterally to initiate limited uses of force.

If Obama had last Saturday gone ahead and announced that a limited strike was underway against select chemical-weapons sites in Syria — the sort of announcement everyone in the Administration thought he was going to make –, and that it would be over in 48 hours, he would have accomplished everything that he’s still looking to accomplish.

Yes, there would have been political backlash — there would have been, just as there has always been, Monday-morning quarterbacking on limited uses of force. But presidents always weathered that kind of backlash. Op-eds are written, a Dennis Kucinich lawsuit is dismissed (who will play his role in future episodes?), calls are made for reining in the imperial presidency. Then everything subsides back to the constitutional mean, in which Presidents are expected to make these decisions without putting them through the hall of mirrors that is Congress. (Real wars are different — the stakes are high but the objectives tend to be clearer, much clearer, in a way that focuses the legislative mind and incentivizes approval.)

In fact I wrote much the same thing in a comment to one of my posts here on ACL last week:

As for whether Assad is behind the CW attacks, I have no more information than anyone else does. But a number of compelling factors in this case to me are the following. First, it does seem that there are some pretty damning intercepts showing Syrian army involvement. Second, while this may have been an elaborate hoax, my read of Obama over the past year has been a real reluctance to get involved in Syria. If the intelligence is good enough to bring him grudgingly to the conclusion that Assad or at least the Syrian army is responsible, that is persuasive contextual evidence to me. Third, and this is what exasperates me at the moment, all we’re talking about here is one or two days of cruise missile strikes. This is not even in the ballpark of being analogous to the invasion of Iraq in 2003. No one, and I mean no one, questions that the Syrian government has long possessed chemical weapons. They have now been used and there appears to be compelling evidence that the Syrian military is responsible. Sending a message that this is unacceptable through a limited use of force seems appropriate to me.

That being said, I almost wish now that Obama would drop the idea, because its now become such a huge talkshop issue. I think its been blown way out of proportion in terms of its implications and the whys and wherefores of it, and that now Congress is involved its just going to be an excruciatingly annoying political football.

If Obama was going to do it, he should have just done it a week ago. The domestic wrangling that’s now going to happen will have no bearing on the international legality of the strike. Its almost farcical now to be debating this in Congress as if it were a decision comparable to the Iraq 2003 decision. And all the old Iraq demons are being brought out in the process. To be clear, as I’ve said before, no one opposed the 2003 Iraq intervention more vehemently and consistently than me. But the current Syria issue shouldn’t even be mentioned in the same breath with it. And now that it is being so mentioned, I do almost wish it would be abandoned.

I’ve also noticed, since the administration has started trying to sell the idea to Congress, that there has been substantial “mission creep” in how the scope of the action is being described. When I was voicing my support for it early on, I understood it, and I think everyone understood it, to be a proposal for perhaps 48 hours of cruise missile strikes and perhaps some limited bombing, on Syrian military targets for the express and exclusive purpose of responding to the regime’s use of chemical weapons.

Now I hear administration officials talking about the strikes as not only sending a message about chemical weapons use, but also shifting the strategic balance in the Syrian civil war towards the rebels. And the timeframe and scope of the strikes themselves seems now to be a lot more open ended and indeterminate, with the only assurance of agreed limits appearing to be the “no boots on the ground” pledge.  I definitely don’t support a US military strike in Syria that is purposed in getting the US substantively involved in Syria’s civil war and shifting the strategic balance towards the rebels. And as I argued in a comment to one of David Fidler’s posts last week, the scope of a military action is itself material, in my view, to the analysis of its legality under international law.  As I said there:

This is a great post, David, and represents well the legal difficulties of this situation. I wrote a piece about Kosovo in 2001, and have dramatically changed my view of the humanitarian intervention issue since that time. I still doubt that there is a formally established right of humanitarian intervention in customary law. But at the same time, I have a hard time condemning small scale uses of international force when circumstances seem to warrant them, as in the present case. For me, its the limited nature of the use of force that makes the legal problems seem manageable. I think that as the nature of a military intervention expands and becomes more serious and sustained, so the legal problems do and should multiply. As you know, in the pre-Charter era, a distinction was often made in custom between “war” and “uses of force short of war.” The UN Charter is often said to have done away with that distinction, but it is sometimes argued, and I have alot of sympathy for this argument, that there are times when justifiable military force falling below a certain threshold of intensity and duration, will legally fall below the prohibited standard in Article 2(4). To me, limited and targeted air strikes in answer to a use of chemical weapons by a government against civilians persuasively falls into that category.

I think, unfortunately, that the idea of a US military strike on Syria has morphed substantially from where it began a week ago, and that the version of the idea now being sold to Congress is something that I don’t think is either justifiable under international law, or prudent for the US to undertake. I think, as Peter Spiro says, that if Obama was going to do this thing, he should have done it last weekend unannounced, in a limited, targeted manner, with the express purpose of sending a message to the Assad regime that chemical weapons use would not be tolerated. I think Obama would have weathered any domestic and international criticism that may have been forthcoming, because everyone would at an essential level have understood why he did it, even if they didn’t agree with the specific action he took.  But the situation now is, I think, perfectly described by Shakespeare in Julius Caesar when he says, through Brutus:

There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures.

The tide has now receded.