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.



5 Comments on “On Asking for Forgiveness Instead of Permission”

  1. Johnboy says:

    Dan, I have a real problem with the…. insularity with which Americans are weighing up their options regarding a unilateral strike against Syria.

    It’s almost as if this were a movie stript, and it’s just a matter of whether the Producer In Chief goes with *this* script or asks for a rewrite from *that* scriptdoctor.

    And all the while we are meant to ignore the fact (and it is a fact) that the OTHER main actor in this drama is rather, ahem, prone to adlibbing his lines and going waaaaaaay off-script.

    PS: “and that it would be over in 48 hours”

    Just because the Prez says it’s all over don’t mean it’s all over.

    Assad has a say in that too, although you wouldn’t know it from that comment.

    PS: “he would have accomplished everything that he’s still looking to accomplish”

    Well, no, he wouldn’t if Assad responds by going ape-shit crazy.

    PS: “Yes, there would have been political backlash”

    There might ALSO be a Whoppin’ Big Counter-strike from the Syrians at any number of within-reach US military bases.

    Though, apparently, that is a concept that has not occurred to anyone in the USofA.

    Both his piece and yours don’t even pay the slightest heed to the idea that Obama is planning on starting a fistfight, and while it only takes one hotheat to start a fistfight it take both pugilists to agree that it has ended.

    Just one example: There is an US-manned X-Band radar station inside Israel, and it is well within range of Assad’s own cruise missiles.

    It is therefore perfectly possible for Obama to order his five destroyers to fire their tomahawk missiles over a 48 hour period and then order them to sail away while he announces “mission accomplished”… only to find that Assad then wipes out that US radar facility and announces “well, two can play this game. Care to go it again?”

    How smart does Obama’s Very Limited Adventure look then?

  2. Nick says:

    This military strike is all about Iran: 1) help (indirectly) the removal of a friendly government to Iran and 2) reemphasize that the nuke red line will be enforced.

    The CW depots are not the target, because any damage to those sites will cause the release of more poison, according to general Cartright, but the main targets are Asad’s Air Force, C&C, and other ones that will balance the civil war that has been tilted towards Asad’s army after the success of Hizbulah fighters.

  3. Denis says:

    I could not agree less with Spiro’s position; I find it disturbing. The suggestion as I understand it is go ahead and attack before the facts are in and muddy the water as to whether or not the attack is justified.

    I would be shocked if this approach is supported by international law, and I know it is not supported by US constitutional law or federal law, least of all the the 1973 War Powers Resolution. It flies in the face of the country being a nation of laws.

    Clinton was lucky, his intervention without Congressional approval turned out to be based on sound facts. Obama does not have that luxury. If he attacks w/out authorization and the facts turn out to be — as in Bush’s case — all garbage, then he, too, becomes a garbage president and his Nobel could be revoked, leading not just to his personal humiliation but that of his race. That whole emotional thing about the first black president is a two-edged sword.

    A president charging into an attack and then apologizing later may be the most expedient approach, but morality is never, ever founded in expediency. Of course, the last thing Clinton — like Baby Bush, Nixon, and LJB — ever worried about was morals.

    As Dan points out, the facts are headed south on this Damascus sarin attack. I have published an online open letter to Congress pointing out that the pharmacological evidence strongly suggests there was no sarin attack.

    Click to access Ltr%20to%20Congress.pdf

    • Johnboy says:

      I note that the Russians have concluded that some of the alleged CW attacks around Allepo in March didn’t involve sarin but instead used diisopropyl fluorophosphate.

      I am aware that diisopropyl fluorophosphate causes extreme pinpoint pupils. Do you have any idea if it also causes involuntary vomiting, defecation and and urination?

      • Denis says:

        JB, yes, sir. DFP causes all of the same effects as sarin. The chemical structures are very similar.

        DFP, sarin, tabun, malathion, parathion all have the same mechanism of action that leads to accumulation of the neurotransmitter acetylcholine in muscle synapses and ganglion synapses in the periphery — and also in the brain. There are differences in their lipid solubilities, which means how quickly and completely they can cross the skin and get into the brain and other tissues.

        They are all classified as organophosphates and their action is either irreversible or very slowly reversible, unlike common therapeutic agents such as neostigmine that have a relatively short duration of action, and, hence, are not as lethal. I think DFP does have some medical and veterinary applications. It is very widely used as a research tool.

        My guess would be that the distinction the Russians may be trying to make is that DFP is probably a lot easier for the insurgents to come by and safer to handle. It takes a lot more DFP to get the job done than sarin. As many of the metabolites are the same, that means a person killed w/ DFP should have higher levels of metabolites in their blood than a person killed w/ sarin. So postmortem analyses should be able to sort out which agent was used.

        Kerry keeps saying they have found “signatures of sarin” in the victims. He doesn’t say they have found sarin. This is a serious hedge — maybe he’s punking us. For most of the signatures of sarin will also be signatures of DFP or the other organophosphates.

        BTW, yesterday my webhost server was brought down with a DNS attack. If anyone wanted to read the letter to Congress I previously linked to and wasn’t able to, it’s now on Scribd.

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